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Texts to 22 Oct 2026

Data Act· Article 5

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Where the file stands

Text

Article 5 Data Act as printed in the Council text of 22 October 2026

Right of the user to share data with third parties

Source Council, 22 October 2026. Article 5: ST 14756/26, page 70 · pp. 70–71 · exact text page

Scope This text prints Article 5(9), Article 5(11) only.

Article 5(9)

(9)

Trade secrets shall be preserved and do not have to be disclosed to third parties, unless the disclosure is strictly necessary to fulfil the purpose agreed between the user and the third party and the data holder and the third party have taken all necessary measures prior to the disclosure to preserve their confidentiality in particular regarding other parties. The data holder or, where they are not the same person, the trade secret holder shall identify the data which are protected as trade secrets, including in the relevant metadata, and shall agree with the third party proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, in particular in relation to other parties, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct.

Article 5(11)

11.

Where the data holder who is a trade secret holder is able to demonstrate that it is likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a significant of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, in particular as regards trade secrets representing industrial manufacturing know-how for entities in the sectors referred to in Annex I and Annex II points 3, 5a, 5d and 5e of Directive (EU) 2022/2555), that data holder may refuse a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Data holders who refuse to share data pursuant to the first sub-paragraph shall notify all instances of refusal to the competent authority designated pursuant to Article 37 every 3 months. The Commission shall issue guidelines, in consultation with the European Data Innovation Board (EDIB), on the application of this paragraph, such as the assessment of serious economic damage, the critical economic sectors and the type of data in those critical economic sectors that typically may give rise to serious economic damage when unlawfully disclosed to third parties, and as regards risks for third country disclosure, on the enforceability of trade secrets protection in third countries, and how to assess the control of economic operators by third-country entities.

Article 5 in the whole Data Act

How each paragraph has changed

Show the statuses
What each text would do to the law in force
Paragraph Commission19 Nov 2025Council10 Jun 2026Council18 Jun 2026Council3 Sep 2026Council2 Oct 2026Council22 Oct 2026 Parliamentamendments
Compared withlaw in forcethe proposal10 Jun text18 Jun text3 Sep text2 Oct text
9Paragraph 9 No change Unchanged No change Unchanged No change Unchanged No change Unchanged No change Unchanged Amends , changed since 2 Oct Changed 1
11Paragraph 11 Amends Changed Amends , changed since the proposal Changed Amends , changed since 10 Jun Changed Amends Unchanged Amends , changed since 3 Sep Changed Amends , changed since 2 Oct Changed 26
Provisions only Parliament would add or change4 units Not in the law in force or this text In neither text Not in the law in force or this text In neither text Not in the law in force or this text In neither text Not in the law in force or this text In neither text Not in the law in force or this text In neither text Not in the law in force or this text In neither text 4

Each text against the law in force: ~Amends amends the law in force=No change leaves the law in force as it is— neither the law in force nor the text has it changed from the text before

Each text against the text before it: ~Changed wording changed=Unchanged same as the text before— in neither text

What each text does

  1. 19 Nov 2025 Commission proposalCOM(2025) 837 Amends Amends paragraph 11. Article 5 in this text
  2. 5 Jun 2026 JURI draft opinion · Brando Benifei (rapporteur)JURI-PA-789142 1 amendment to this article. Amendments in this document
  3. 8 Jun 2026 IMCO draft opinion · Alex Agius Saliba (rapporteur)IMCO-PA-789877 2 amendments to this article. Amendments in this document
  4. 10 Jun 2026 Council textST 10426/26 Changed Changes paragraph 11. Article 5 in this text
  5. 18 Jun 2026 Council textST 10677/26 Changed Changes paragraph 11. Article 5 in this text
  6. 29 Jun 2026 JURI amendments 69–296 to the draft opinionJURI-AM-790236 5 amendments to this article. Amendments in this document
  7. 16 Jul 2026 IMCO amendments 125–328 to the draft opinionIMCO-AM-790905 5 amendments to this article. Amendments in this document
  8. 27 Jul 2026 ITRE–LIBE amendments 527–776 to the draft reportCJ72-AM-791071 18 amendments to this article. Amendments in this document
  9. 3 Sep 2026 Council textST 12535/26 Unchanged Same as the text before. Article 5 in this text
  10. 2 Oct 2026 Council textST 13886/26 Changed Changes paragraph 11. Article 5 in this text
  11. 22 Oct 2026 Council textST 14756/26 Changed Changes paragraphs 9 and 11. Article 5 in this text

Paragraph 9

Changed by the Council on 22 October

Parliament amendments 1

1 proposes alternative wording.

  1. 638 Alternative Axel VossEPP · ITRE–LIBE “Trade secrets shall be preserved and shall not be disclosed to third parties without the consent of their respective trade secret holder."”

    4a. In Article 5, paragraph 9 is being replaced by the following:

    Trade secrets shall be preserved and shall be disclosed to third parties only to the extent that such disclosure is strictly necessary to fulfil the purpose agreed between the user and the third party. The data holder or, where they are not the same person, the trade secret holder shall identify the data which are protected as trade secrets, including in the relevant metadata, and shall agree with the third party all proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct.9. Trade secrets shall be preserved and shall not be disclosed to third parties without the consent of their respective trade secret holder."

    Justification

    The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

    Tabled by
    Axel Voss
    Group
    EPP
    Targets
    Data Act Article 5 – paragraph 9
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 a (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 9

Paragraph 11

Changed by the Commission · changed by the Council on 10 June · changed on 18 June · changed on 2 October · changed on 22 October

Parliament amendments 26

2 would delete the wording and 24 propose alternative wording. Deletion amendments come from EPP, and from the IMCO rapporteur’s draft opinion.

By political group; co-sponsored amendments count for each group
TypeThe LeftS&DGreens/EFARenewEPPECRPfERapporteur
− Deletion····1··1
~ Alternative12329431

By political group

  • − Deletion EPP 1 Rapporteur 1
  • ~ Alternative The Left 1 S&D 2 Greens/EFA 3 Renew 2 EPP 9 ECR 4 PfE 3 Rapporteur 1

Show

  1. 27 Alternative Brando Benifei (rapporteur)Rapporteur · JURI “only be disclosed to third parties to the extent that they are strictly necessary to fulfil the purpose agreed between the user and the third party…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.’;Trade secrets shall only be disclosed to third parties to the extent that they are strictly necessary to fulfil the purpose agreed between the user and the third party and all specific necessary measures agreed between the data holder and the third party are taken by the third party to preserve the confidentiality of the trade secret. In such a case, the nature of the data as trade secrets and the measures for preserving the confidentiality shall be specified in the agreement between the data holder and the third party.’;

    Justification

    This amendment restores the original balancing approach of the Data Act by ensuring that trade secrets are protected primarily through proportionate confidentiality measures and contractual safeguards rather than broad refusal rights. It also strengthens legal certainty by clarifying that access to trade secrets by third parties must remain strictly necessary and subject to clearly defined confidentiality obligations.

    Rapporteur
    Brando Benifei
    Group
    Rapporteur
    Targets
    Data Act Article 5(11)
    Document
    JURI draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  2. 43 Deletion Alex Agius Saliba (rapporteur)Rapporteur · IMCO Deletes the Commission’s wording

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Rapporteur
    Alex Agius Saliba
    Group
    Rapporteur
    Targets
    Data Act Article 5(11)
    Document
    IMCO draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  3. 172 Alternative Emil RadevEPP · JURI “Where the data holder who is a trade secret holder finds that the data requested may result in disclosure of trade secrets or that the disclosure of…”

    11. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstratefinds that, despite the technicaldata andrequested organisationalmay measuresresult taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from thein disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;Where the data holder refuses to share data pursuant to this paragraph, it shall notify the user requesting the data.

    Tabled by
    Emil Radev
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    JURI amendments 69–296 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  4. 173 Alternative Ton Diepeveen +1PfE · JURI “Data holders shall not be required to undertake a comprehensive assessment of foreign legal systems, enforcement practices, or international law in…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate, or where there are reasonable grounds based on generally available information to conclude, that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. ThatSuch demonstrationrefusal shallmay be duly substantiated on the basis of objective elements, suchincluding asgenerally known deficiencies in the protection or enforceability of trade secrets protection in thirdthe countriesrelevant jurisdiction, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. ItData holders shall not be required to undertake a comprehensive assessment of foreign legal systems, enforcement practices, or international law in order to rely on this paragraph. In particular, small and medium-sized enterprises should be entitled to rely on publicly available information and generally recognised risks when assessing the likelihood of unlawful acquisition, use, or disclosure. The reasons for the refusal shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Justification

    For companies it might not always be possible to provide the necessary proof of such high-risk, specifically for smaller companies. It should therefore not be required of individual companies to undertake a costly assessment of international law and practices. Refusing a data sharing request should be possible on the basis of general knowledge.

    Tabled by
    Ton Diepeveen, Pascale Piera
    Group
    PfE
    Targets
    Data Act Article 5(11)
    Document
    JURI amendments 69–296 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  5. 174 Alternative Laurence FarrengRenew · JURI “shall first propose to the third party specific technical and organisational measures to preserve the confidentiality of the trade secrets in…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder shall first propose to the third party specific technical and organisational measures to preserve the confidentiality of the trade secrets in question. The third party and data holder shall engage in good faith negotiations to reach agreement on such measures within a reasonable timeframe. The data holder may only refuse on a case-by-case basis a request for access to the specific data in question if no mutually acceptable measures can be agreed. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37, specifying the measures proposed and the reasons why no agreement could be reached.;

    Tabled by
    Laurence Farreng
    Group
    Renew
    Targets
    Data Act Article 5(11)
    Document
    JURI amendments 69–296 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  6. 175 Alternative Mario MantovaniECR · JURI “The refusal shall be reviewed by the competent authority or another independent dispute settlement body pursuant to this Regulation.”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, suchwhich asclearly demonstrate that the enforceabilityrefusal ofis tradestrictly secretsnecessary protectionand inproportionate, third countries,including the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay and shall contain detailed, verifiable reasons justifying the refusal. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37. The refusal shall be reviewed by the competent authority or another independent dispute settlement body pursuant to this Regulation.’;

    Justification

    The additional grounds for refusal, i.e. the risk of disclosure to third countries, serve to undermine the right to access data under the Data Act. SMEs are often unable to appeal a refusal or assess the complex corporate structures adduced in support of such, which runs the risk of unduly limiting their access to data for the purposes of innovation, repairs, maintenance and after-sales service. Limiting refusals to cases where there is clear evidence of serious economic harm and providing for an independent review would prevent vexatious requests while continuing to protect trade secrets.

    Tabled by
    Mario Mantovani
    Group
    ECR
    Targets
    Data Act Article 5(11)
    Document
    JURI amendments 69–296 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  7. 176 Alternative David CormandGreens/EFA · JURI “In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure, notably to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    David Cormand
    Group
    Greens/EFA
    Targets
    Data Act Article 5(11)
    Document
    JURI amendments 69–296 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  8. 235 Alternative Piotr MüllerECR · IMCO “In circumstances, where the data holder who is a trade secret holder finds that, the data requested may result in disclosure of trade secrets to the…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstratefinds that, despite the technicaldata andrequested organisationalmay measuresresult taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that thein disclosure of trade secrets to the third partyuser poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentparty authorityrequesting designatedthe pursuant to Article 37data.;

    Tabled by
    Piotr Müller
    Group
    ECR
    Targets
    Data Act Article 5(11)
    Document
    IMCO amendments 125–328 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  9. 236 Alternative Arba KokalariEPP · IMCO “Where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third…”

    11. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay.The refusal shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    Arba Kokalari
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    IMCO amendments 125–328 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  10. 237 Alternative Virginie JoronPfE · IMCO “of industrial, strategic or sensitive data whose disclosure would be likely to cause damage to economic security, privacy or law and order, or”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is ablein a position to demonstrateestablish on reasonable grounds that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serioussignificant economic damage from the disclosure of trade secrets or of industrial, strategic or sensitive data whose disclosure would be likely to cause damage to economic security, privacy or law and order, or that the disclosure of tradesuch secretsdata to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, including because of the likely onward transmission of data to those entities, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstrationassessment shall be dulyreasonably substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, the chain of onward transmission of data that may reasonably be foreseen, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.’;

    Tabled by
    Virginie Joron
    Group
    PfE
    Targets
    Data Act Article 5(11)
    Document
    IMCO amendments 125–328 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – Paragraph 11
Show 16 more amendments
  1. 238 Alternative Sophia KircherEPP · IMCO “secrets in particular where the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third…”

    11. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstratefinds that, despite the technicaldata andrequested organisationalmay measuresresult taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage fromin the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;Where the data holder refuses to share data pursuant to this paragraph, it shall notify the user requesting the data.; The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 5(11). These shall identify specific third-country jurisdictions and types of data or practices that inherently pose a high risk to trade secrets in particular where the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law. The Commission shall provide a simplified template based on the list of objective criteria to help data holders to substantiate 'serious economic damage,' and where access may be granted even if data is highly sensitive and under what conditions.

    Tabled by
    Sophia Kircher
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    IMCO amendments 125–328 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  2. 239 Alternative David CormandGreens/EFA · IMCO “In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure notably to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    David Cormand on behalf of the Verts/ALE Group
    Group
    Greens/EFA
    Targets
    Data Act Article 5(11)
    Document
    IMCO amendments 125–328 to the draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  3. 621 Deletion Axel VossEPP · ITRE–LIBE Deletes the Commission’s wording

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Justification

    The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

    Tabled by
    Axel Voss
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  4. 622 Alternative Elena Sancho Murillo +6S&D · ITRE–LIBE “The competent authority shall review the substantiation provided and issue a binding decision within sixty calendar days of receipt of the…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate with sufficient evidence that the product data and related service data constiute a trade secret within the meaning of Article 2(1) of Directive 2016/943, that such trade secrets cannot be eliminated or sufficiently mitigated through design measures pursutant to Aritcle 3(1), and, despite the technical and organisational measures taken by the third partyuser pursuant to paragraph 96 of this Article, it is highly likely to suffer serious and demonstrable economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third partyuser poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent user or trade secret protection compared to that under Union law. For the purposes of this Regulation, that'serious economic damage' does not include normal competitive effects arising from lawful access under the Data Act. The data holder mayshall refuse on a case-by-case basis a request for access toidentify the specific data inthat questionconstitutes a trade secret and shall not classify entire datasets as trade secrets. ThatAny such demonstration shall be duly substantiated on the basis of objective elements, suchverifiable asand specific evidence, taking into account, in particular, the enforceability of trade secretssecret protection in third countries, the nature and level of confidentiality of the data requestedconcerned, the design measures applied pursuant to Article 3(1), and the uniqueness and novelty of the connected product. ItSuch demonstration shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;Where the data holder refuses to share specific data on the basis of trade secret protection, it shall notify the competent authority designated pursuant to Article 37 without undue delay and no later than five working days after communicating the refusal to the user. The competent authority shall review the substantiation provided and issue a binding decision within sixty calendar days of receipt of the notification. A refusal shall be permitted only on a case-by-case basis and shall be duly reasoned, proportionate and limited to the specific data strictly necessary to protect the trade secret. It shall not prejudice the rights of users under this Regulation. Any claim relating to third-country entities shall be supported by concrete evidence demonstrating a specific risk of unlawful access, use or disclosure. Access may be refused only where the data holder demonstrates, on the basis of objective and verifiable evidence, that disclosure would create a serious and specific risk of unlawful acquisition, use or disclosure of the trade secret that cannot be adequately mitigated through confidentiality measures, technical safeguards or contractual arrangements.

    Tabled by
    Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba
    Group
    S&D
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  5. 623 Alternative Michael McNamara +4Renew · ITRE–LIBE “The competent authority shall approve or reject the data holder’s refusal to share data pursuant to this paragraph based on a review of the evidence…”

    11. The Commission, in consultation with the European Data Innovation Board (EDIB) and representatives of data holders, users, and third parties shall publish a list of high-risk sectors with regards to the disclosure of trade secrets. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or, in high-risk sectors, that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elementsobjectiveevidence, such as the enforceability of trade secrets protection in third countries, the verifable insufficiency of specific technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, the high likelihood of suffering serious economic damage, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37 no later than five working days after the refusal was communicated to the third party.; The competent authority shall approve or reject the data holder’s refusal to share data pursuant to this paragraph based on a review of the evidence submitted by the data holder, and provide in writing an explanation for its decision to the data holder and third party within 60 calander days. The third party has the right to be heard before the competent authority decides to approve or reject the data holder’s refusal to share data pursuant to this paragraph. The Commission shall issue guidelines, in consultation with the European Data Innovation Board (EDIB) and representatives of data holders, users, and third parties on the application of this paragraph, such as the assessment of serious economic damage, third-country entity direct or indirect control, and the enforceability of trade secrets protection in third countries.

    Tabled by
    Michael McNamara, Irena Joveva, Oihane Agirregoitia Martínez, Veronika Cifrová Ostrihoňová, Christophe Grudler
    Group
    Renew
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  6. 624 Alternative Henrik DahlEPP · ITRE–LIBE “In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question.In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product.The assessment shall be based on the definition of trade secrets stated in Article 2 (1) of Directive (EU) 2016/943 of the European Parliament and of the Council. ItThe refusal shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    Henrik Dahl
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  7. 625 Alternative Niels Flemming HansenEPP · ITRE–LIBE “In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question.In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product.The assessment shall be based on the definition of trade secrets stated in Article 2 (1) of Directive (EU) 2016/943 of the European Parliament and of the Council. ItThe refusal shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;’

    Tabled by
    Niels Flemming Hansen
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  8. 626 Alternative Alice Teodorescu Måwe +1EPP · ITRE–LIBE “In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question.In any circumstance, where the data holder who is a trade secret holder assesses a risk of disclosing trade secrets, the data holder may refuse a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product.The assessment shall be based on the definition of trade secrets stated in Article 2 (1) of Directive (EU) 2016/943 of the European Parliament and of the Council. ItThe refusal shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    Alice Teodorescu Måwe, Henrik Dahl
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  9. 627 Alternative Aura Salla +5EPP · ITRE–LIBE “The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 5(11). These shall identify specific third-country…”

    11. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstratefinds that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, suchin asparticular the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;Where the data holder refuses to share data pursuant to this paragraph, it shall notify the third party requesting access to the data. The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 5(11). These shall identify specific third-country jurisdictions and types of data or practices that inherently pose a high risk to trade secrets in particular where the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law. The Commission shall provide a simplified template based on the list of objective criteria to help data holders to substantiate 'serious economic damage,' and where access may be granted even if data is highly sensitive and under what conditions

    Tabled by
    Aura Salla, Niels Flemming Hansen, Ana Miguel Pedro, Adina Vălean, Andrea Wechsler, Christian Ehler
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  10. 628 Alternative Dario NardellaS&D · ITRE–LIBE “Where a third party’s request for access relates to data reflecting the user’s economic activity, scale of operations and output, the data holder…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.; Where a third party’s request for access relates to data reflecting the user’s economic activity, scale of operations and output, the data holder shall inform the user in advance of the request received, specifying the nature of the data requested and the decisions taken regarding the activation of the refusal mechanism. This information obligation is without prejudice to the user’s right under Article 5 to designate the third party recipient of the data.

    Justification

    L’emendamento estende in modo simmetrico all’articolo 5, paragrafo 11, del regolamento (UE) 2023/2854 l’obbligo informativo introdotto all’articolo 4, paragrafo 8, dall’Emendamento 6. La ratio è la medesima. Quando la richiesta di accesso riguarda dati che riflettono l’attività e il dimensionamento economica dell’utente e delle sue produzioni, l’utente deve essere messo nella condizione di conoscere la richiesta e le determinazioni del detentore dei dati, anche quando la richiesta provenga da un terzo. L’emendamento è formulato in modo da non incidere sul diritto dell’utente di designare autonomamente terze parti destinatarie dei propri dati, disciplinato dall’articolo 5 del regolamento nella sua struttura complessiva.

    Tabled by
    Dario Nardella
    Group
    S&D
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – point 11
  11. 629 Alternative Francesco Torselli +1ECR · ITRE–LIBE “Where a third party’s request for access relates to data reflecting the user’s economic activity and scale of operations and their output, the data…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.; Where a third party’s request for access relates to data reflecting the user’s economic activity and scale of operations and their output, the data holder shall inform the user in advance of the request received, specifying the nature of the data requested and the decisions taken regarding the activation of the refusal mechanism. This information obligation is without prejudice to the user’s right under Article 5 to designate the third party recipient of the data. (Our intention is to amend this article by adding a section of text at the end of the article in question.)

    Tabled by
    Francesco Torselli, Paolo Inselvini
    Group
    ECR
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – point 11
  12. 630 Alternative Tomas Tobé +2EPP · ITRE–LIBE “Where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third…”

    11. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay.The refusal shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    Tomas Tobé, Arba Kokalari, Jörgen Warborn
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  13. 631 Alternative João OliveiraThe Left · ITRE–LIBE “In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.

    Tabled by
    João Oliveira
    Group
    The Left
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  14. 632 Alternative Julie Rechagneux +7ECR, PfE · ITRE–LIBE “of industrial, strategic or sensitive data whose disclosure would be liable to harm economic security, privacy or public order, or”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrateestablish, on the basis of reasonable grounds, that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serioussignificant economic damage from the disclosure of trade secrets or of industrial, strategic or sensitive data whose disclosure would be liable to harm economic security, privacy or public order, or that the disclosure of tradesuch secretsdata to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, including as a result of the foreseeable onward transmission of the data to such entities, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstrationassessment shall be dulyreasonably substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, the reasonably foreseeable chain of onward transmission of the data, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Tabled by
    Julie Rechagneux, Mélanie Disdier, Aleksandar Nikolic, Pierre-Romain Thionnet, Alexandre Varaut, Fabrice Leggeri, Marion Maréchal, Christophe Bay
    Group
    ECR, PfE
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – Paragraph 11
  15. 633 Alternative Damian BoeselagerGreens/EFA · ITRE–LIBE “The data holder and the competent authority shall inform the third party of their rights and the relevant procedure under paragraph 12.”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious and irreparable economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, suchin asparticular the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.; The data holder and the competent authority shall inform the third party of their rights and the relevant procedure under paragraph 12.

    Tabled by
    Damian Boeselager on behalf of the Verts/ALE Group
    Group
    Greens/EFA
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11
  16. 634 Alternative Pilar del Castillo VeraEPP · ITRE–LIBE “In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and…”

    11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, suchin asparticular the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;

    Justification

    Article 5(11), as currently drafted in the Data Act, establishes an exhaustive framework for demonstrating, based on objective elements, the risk of serious economic damage resulting from the disclosure of trade secrets. Replacing ‘in particular’ with ‘such as’ would transform that framework into an open-ended list of criteria, allowing reliance on additional unspecified elements and broadening the grounds for refusal. To preserve legal certainty, the original wording should be retained.

    Tabled by
    Pilar del Castillo Vera
    Group
    EPP
    Targets
    Data Act Article 5(11)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Provisions only Parliament amendments would add or change

4 amendments on 4 units the Commission proposal leaves unchanged

Paragraph 10Not amended by the Commission

  1. 641 Alternative Axel VossEPP · ITRE–LIBE “4 b. In Article 5, paragraph 10 is deleted. ""”

    10. Where there is no agreement on the necessary measures referred to in paragraph 9 of this Article or if the third party fails to implement the measures agreed pursuant to paragraph 9 of this Article or undermines the confidentiality of the trade secrets, the data holder may withhold or, as the case may be, suspend the sharing of data identified as trade secrets. The decision of the data holder shall be duly substantiated and provided in writing to the third party without undue delay.4 b. In such cases, the data holder shall notify the competent authority designated pursuant to Article 37 that it has withheld or suspended data sharing and identify which measures have not been agreed or implemented and, where relevant, which trade secrets have had their confidentiality undermined.In Article 5, paragraph 10 is deleted. ""

    Justification

    The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

    Tabled by
    Axel Voss
    Group
    EPP
    Targets
    Data Act Article 5 – paragraph 10
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 b (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 10

Paragraph 10, subparagraph (new)New

  1. 635 Addition Bart Groothuis +8Renew · ITRE–LIBE “Notifications pursuant to this paragraph shall not require the disclosure of the content of a trade secret, as defined in Article 2(1) of Directive…”

    In Article 5, paragraph 10 the following subparagraph is added

    Notifications pursuant to this paragraph shall not require the disclosure of the content of a trade secret, as defined in Article 2(1) of Directive (EU) 2016/943, or of any detailed information whose disclosure would be liable to undermine the confidentiality of that trade secret.

    Tabled by
    Bart Groothuis, Ivars Ijabs, Morten Løkkegaard, Sophie Wilmès, Nikola Minchev, Svenja Hahn, Andreas Glück, João Cotrim De Figueiredo, Ana Vasconcelos
    Group
    Renew
    Targets
    Data Act Article 5 – paragraph 10 – subparagraph (new)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 10 – subparagraph (new)

Paragraph 11a (new)New

  1. 44 Addition Alex Agius Saliba (rapporteur)Rapporteur · IMCO “The Commission shall issue guidance in consultation with the European Data Protection Board (EDPB) and the European Data Innovation Board (EDIB) on…” numbered 11a

    11a.The Commission shall issue guidance in consultation with the European Data Protection Board (EDPB) and the European Data Innovation Board (EDIB) on how a data holder can demonstrate the probability of damage due to the disclosure of trade secrets.

    Rapporteur
    Alex Agius Saliba
    Group
    Rapporteur
    Targets
    Data Act Article 5 – paragraph 11 a (new)
    Document
    IMCO draft opinion
    Printed header
    Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11 a (new)

Paragraph 13a (new)New

  1. 636 Addition Elena Sancho Murillo +6S&D · ITRE–LIBE “[By 12 months from the entry into force of this amending Regulation], the Commission shall adopt a delegated act in accordance with Article 45 of…”

    4a.Article 5 is amendment as follows: the following paragraph 13a is inserted:

    [By 12 months from the entry into force of this amending Regulation], the Commission shall adopt a delegated act in accordance with Article 45 of this Regulation for the purpose of ensuring an effective implementation of paragraph 1 with regard to vehicle-generated data, vehicle functions and vehicle resources. The delegated act shall specify categories of data that can be made available, functions and resources, modalities of access, specific interoperability requirements, proportionate security and monitoring measures, and standardised sets of data to be made available to data recipients without unlawfully disclosing personal data. Such access shall be made available by the data holder to the third party in accordance with Articles 8 and 9 and in full respect of Regulation (EU) 2016/679 and Directive 2002/58/EC.

    Tabled by
    Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba
    Group
    S&D
    Targets
    Data Act Article 5 – paragraph 13a (new)
    Document
    ITRE–LIBE amendments 527–776 to the draft report
    Printed header
    Article 1 – paragraph 1 – point 4 a (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 13a (new)