Article 4

2b. in Article 4, a new paragraph is introduced after paragraph 4: 4. Data holders shall not make the exercise of choices or rights under this Article by the user unduly difficult, including by offering choices to the user in a non-neutral manner or by subverting or impairing the autonomy, decision-making or choices of the user via the structure, design, function or manner of operation of a user digital interface or a part thereof. 4a. The user shall have the right to determine whether, and to what extent, product data or related service data generated on the user’s local network is transmitted beyond that network to the manufacturer, the data holder, or any third party. The data holder shall provide the user with a readily accessible technical means to exercise or withdraw this determination at any time, free of charge, without this affecting the user’s access rights under Article 3 or this Article. This paragraph shall not restrict processing of data strictly necessary for: (a) cybersecurity and the delivery of security updates; (b) compliance with a legal obligation to which the manufacturer or data holder is subject; or (c) a safety recall."

8. Trade secrets shall only be disclosed provided that all specific necessary measures are taken to preserve the confidentiality of trade secrets in particular with respect to third parties. The data holder and the user can agree measures to preserve the confidentiality of the shared data, in particular in relation to third parties. The Commission shall issue guidance, 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. Trade secret shall not be used as a pretext to deny legitimate access to data subjects and regulatory bodies. Any refusal of access must constitute a measure of last resort. Before refusing access, the data controller must offer a viable and secure alternative. This alternative must guarantee legitimate data use while ensuring the non-disclosure of trade secrets. Such alternatives may include confidentiality agreements, restricted access protocols subject to regular audits, technical measures for data aggregation or anonymization, technical architectures and standards that preserve confidentiality. 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 user pursuant to paragraph 6 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 user poses a high risk of unlawful acquisition, use, or disclosure to notably 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 refusewithhold or, as the case may be, suspend the sharing of data identified as trade secrets 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 user 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.; Decisions regarding refusal shall be subject to review by an independent authority that will act transparently towards the requesting user or recipient and provide effective redress.

8. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrateestablish on reasonable grounds that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious 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 those data or of trade secrets to the user 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. Data 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. It shall be provided in writing to the user 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.’;

8. 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 user pursuant to paragraph 6 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 user 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 user 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.;

8. 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 user pursuant to paragraph 6 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 user 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 user without undue delay.The refusal shall be provided in writing to the user 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.;

8. 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 user pursuant to paragraph 6 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 user 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 user 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 designated pursuant; The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 4(8). 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.

8. 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 user pursuant to paragraph 6 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 user 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. When assessing such risk, due account shall be taken of the strategic value of the data, the possibility of reverse engineering, the protection of intellectual property rights and the potential impact on the competitiveness of Union undertakings. 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 user 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

A well-functioning Single Market depends on both the free flow of data and effective protection of trade secrets and intellectual property. This amendment provides greater legal certainty by clarifying how economic risks should be assessed, while ensuring that mandatory data-sharing obligations do not weaken the competitiveness of Union undertakings or reduce incentives to innovate and invest across the Single Market.

Justification

Frees businesses to use non-personal product data without concluding a separate contract with every user, removing a paperwork obligation that serves no protective purpose

13. A data holder shall only use any readily available data that is non-personal data on the basis of a contract with the user.A data holder is entitled to use any readily available data that is non-personal data. Such use shall be without prejudice to Regulation (EU) 2016/679 and shall comply with Union and national law on the protection of trade secrets and intellectual property rights. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active."