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Data Act · Regulation (EU) 2023/2854

Article 5

Compare the available Commission, Council and Parliament texts and amendments affecting this article.

Article total: 6 parts · 3 Council drafts · 31 Parliament amendments

Removed wording is struck through; added or replacement wording is highlighted.

Institutional text

European Commission proposal

All Commission’s changes to Data Act

The wording proposed by the Commission at the start of this legislative file.

Full article with Commission changes

Article with proposed changes

Official consolidated text dated 13 December 2023, with the Commission proposal change affecting this article applied.

Article 5

Right of the user to share data with third parties

  1. 1.

    Upon request by a user, or by a party acting on behalf of a user, the data holder shall make available readily available data, as well as the relevant metadata necessary to interpret and use those data, to a third party without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge to the user, in a comprehensive, structured, commonly used and machine-readable format and, where relevant and technically feasible, continuously and in real-time. The data shall be made available by the data holder to the third party in accordance with Articles 8 and 9.

  2. 2.

    Paragraph 1 shall not apply to readily available data in the context of the testing of new connected products, substances or processes that are not yet placed on the market unless their use by a third party is contractually permitted.

  3. 3.

    Any undertaking designated as a gatekeeper, pursuant to Article 3 of Regulation (EU) 2022/1925, shall not be an eligible third party under this Article and therefore shall not:

    1. (a)

      solicit or commercially incentivise a user in any manner, including by providing monetary or any other compensation, to make data available to one of its services that the user has obtained pursuant to a request under Article 4(1);

    2. (b)

      solicit or commercially incentivise a user to request the data holder to make data available to one of its services pursuant to paragraph 1 of this Article;

    3. (c)

      receive data from a user that the user has obtained pursuant to a request under Article 4(1).

  4. 4.

    For the purpose of verifying whether a natural or legal person qualifies as a user or as a third party for the purposes of paragraph 1, the user or the third party shall not be required to provide any information beyond what is necessary. Data holders shall not keep any information on the third party’s access to the data requested beyond what is necessary for the sound execution of the third party’s access request and for the security and maintenance of the data infrastructure.

  5. 5.

    The third party shall not use coercive means or abuse gaps in the technical infrastructure of a data holder which is designed to protect the data in order to obtain access to data.

  6. 6.

    A data holder shall not use any readily available data to derive insights about the economic situation, assets and production methods of, or the use by, the third party in any other manner that could undermine the commercial position of the third party on the markets in which the third party is active, unless the third party has given permission to such use and has the technical possibility to easily withdraw that permission at any time.

  7. 7.

    Where the user is not the data subject whose personal data is requested, any personal data generated by the use of a connected product or related service shall be made available by the data holder to the third party only where there is a valid legal basis for processing under Article 6 of Regulation (EU) 2016/679 and, where relevant, the conditions of Article 9 of that Regulation and of Article 5(3) of Directive 2002/58/EC are fulfilled.

  8. 8.

    Any failure on the part of the data holder and the third party to agree on arrangements for transmitting the data shall not hinder, prevent or interfere with the exercise of the rights of the data subject under Regulation (EU) 2016/679 and, in particular, with the right to data portability under Article 20 of that Regulation.

  9. 9.

    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.

  10. 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. 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.

  11. 11.

    In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that it is highly likely to suffer serious economic damage from the disclosure of trade secrets, 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, insuch particularas 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,. andIt 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.

  12. 12.

    Without prejudice to the third party’s right to seek redress at any stage before a court or tribunal of a Member State, a third party wishing to challenge a data holder’s decision to refuse or to withhold or suspend data sharing pursuant to paragraphs 10 and 11 may:

    1. (a)

      lodge, in accordance with Article 37(5), point (b), a complaint with the competent authority, which shall, without undue delay, decide whether and under which conditions the data sharing is to start or resume; or

    2. (b)

      agree with the data holder to refer the matter to a dispute settlement body in accordance with Article 10(1).

  13. 13.

    The right referred to in paragraph 1 shall not adversely affect the rights of data subjects pursuant to the applicable Union and national law on the protection of personal data.

Commission source wording and instructions

Article 5(11)

Commission proposal

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.

Institutional text

Council Presidency texts

Successive Presidency compromise texts. Their inclusion does not imply agreement or adoption.

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Article 5(11)

June Presidency compromise · 10 June

Council wording reconstructed for this provision from the official operation

11. 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 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 a request for access to the specific data in question. That demonstration may be 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. 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, and the enforceability of trade secrets protection in third countries.'

4a.

in Article 11 paragraph 1 is replaced by the following:

'(1)

A data holder may apply appropriate technical protection measures, including encryption, to prevent unauthorised access to data, including metadata, and to ensure compliance with Articles 4, 5, 6, 8 and 9, as well as with the agreed contractual terms for making data available. Such technical protection measures shall not discriminate between data recipients or hinder a user’s right to obtain a copy of, retrieve, use or access data, to provide data to third parties pursuant to Article 5 or any right of a third party under Union law or national legislation adopted in accordance with Union law. Users, third parties and data recipients shall not alter or remove such technical protection measures unless agreed by the data holder.

Competing proposals

European Parliament amendments

These are alternative tabled amendments. An amendment affecting several tracked parts appears once here, with each target identified.

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Political group at the amendment date where available; otherwise the current Parliament affiliation.

Alternative wording Amendment 27 JURI draft opinion · Brando Benifei (rapporteur)
11. InTrade exceptionalsecrets circumstances,shall whereonly 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 who is a trade secret holder is able to demonstrate that, despiteand the technicalthird andparty organisational measuresare taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage frompreserve 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 trade secret. In such a case, the nature of the data requested,as trade secrets and the uniquenessmeasures andfor novelty ofpreserving the connected product. Itconfidentiality shall be providedspecified in writing to the thirdagreement party without undue delay. Wherebetween the data holder refuses to share data pursuant to this paragraph, it shall notifyand the competentthird authority designated pursuant to Article 37party.’;
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.

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Remove proposed wording Amendment 43 IMCO draft opinion · Alex Agius Saliba (rapporteur)
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.;
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Additional proposed wording Amendment 44 IMCO draft opinion · Alex Agius Saliba (rapporteur)
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.

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Alternative wording Amendment 172 · Emil Radev JURI
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 competentuser authorityrequesting designatedthe pursuant to Article 37data.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 173 · Ton Diepeveen, Pascale Piera JURI
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 174 · Laurence Farreng JURI
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.;
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Alternative wording Amendment 175 · Mario Mantovani JURI
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.

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Alternative wording Amendment 176 · David Cormand JURI
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.;
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Alternative wording Amendment 235 · Piotr Müller IMCO
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.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 236 · Arba Kokalari IMCO
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. ThatThe 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. Itrefusal 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.;
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Alternative wording Amendment 237 · Virginie Joron IMCO
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.’;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – Paragraph 11

Alternative wording Amendment 238 · Sophia Kircher IMCO
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 competentuser authorityrequesting designatedthe pursuantdata.; 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 Articletrade 37secrets 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.
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Alternative wording Amendment 239 · David Cormand on behalf of the Verts/ALE Group IMCO
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.;
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Remove proposed wording Amendment 621 · Axel Voss ITRE · LIBE
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.

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Alternative wording Amendment 622 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
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 specific data pursuanton tothe thisbasis paragraphof 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.
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 623 · Michael McNamara, Irena Joveva, Oihane Agirregoitia Martínez, Veronika Cifrová Ostrihoňová, Christophe Grudler ITRE · LIBE
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.
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 624 · Henrik Dahl ITRE · LIBE
11. In exceptionalany circumstancescircumstance, 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 posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. 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.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 625 · Niels Flemming Hansen ITRE · LIBE
11. In exceptionalany circumstancescircumstance, 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 posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. 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.;’
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 626 · Alice Teodorescu Måwe, Henrik Dahl ITRE · LIBE
11. In exceptionalany circumstancescircumstance, 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 posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. 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.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 627 · Aura Salla, Niels Flemming Hansen, Ana Miguel Pedro, Adina Vălean, Andrea Wechsler, Christian Ehler ITRE · LIBE
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 competentthird authorityparty designatedrequesting pursuantaccess to Articlethe 37data.; 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
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 628 · Dario Nardella ITRE · LIBE
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – point 11

Alternative wording Amendment 629 · Francesco Torselli, Paolo Inselvini ITRE · LIBE
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.)
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – point 11

Alternative wording Amendment 630 · Tomas Tobé, Arba Kokalari, Jörgen Warborn ITRE · LIBE
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. ThatThe 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. Itrefusal 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.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 631 · João Oliveira ITRE · LIBE
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.
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 632 · Julie Rechagneux, Mélanie Disdier, Aleksandar Nikolic, Pierre-Romain Thionnet, Alexandre Varaut, Fabrice Leggeri, Marion Maréchal, Christophe Bay ITRE · LIBE
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.;
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – Paragraph 11

Alternative wording Amendment 633 · Damian Boeselager on behalf of the Verts/ALE Group ITRE · LIBE
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.
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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Alternative wording Amendment 634 · Pilar del Castillo Vera ITRE · LIBE
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 11

Additional proposed wording Amendment 635 · Bart Groothuis, Ivars Ijabs, Morten Løkkegaard, Sophie Wilmès, Nikola Minchev, Svenja Hahn, Andreas Glück, João Cotrim De Figueiredo, Ana Vasconcelos ITRE · LIBE

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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 / Regulation (EU) 2023/2854 / Article 5 – paragraph 10 – subparagraph (new)

Additional proposed wording Amendment 636 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 a (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 13a (new)

Alternative wording Amendment 638 · Axel Voss ITRE · LIBE
4a. In Article 5, paragraph 9 is being replaced by the following:
9. Trade secrets shall be preserved and shall not be disclosed to third parties only towithout the extentconsent thatof suchtheir 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, therespective 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."
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 a (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 9

Alternative wording Amendment 641 · Axel Voss ITRE · LIBE
10.4 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 delayb. In suchArticle cases5, theparagraph data10 holderis shalldeleted. 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.""
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.

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Header printed in the source: Article 1 – paragraph 1 – point 4 b (new) / Regulation (EU) 2023/2854 / Article 5 – paragraph 10