Article 4

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. 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 who is a trade secret holder finds that, the data requested may result in 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 party, that data holder may refuse a request for access to the specific data in question. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentuser authorityrequesting designatedthe pursuantdata. toThe ArticleCommission 37shall issue guidance in consultation with the stakeholders, on the application of this paragraph.;

Justification

This amendment strengthens the protection of trade secrets by allowing data holders to refuse access where there is a risk of unlawful acquisition, use or disclosure of confidential business information. It helps safeguard innovation, competitiveness and sensitive commercial assets, while providing additional guidance for the consistent application of the provision.

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 shall first propose to the user specific technical and organisational measures to preserve the confidentiality of the trade secrets in question. The user 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 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, specifying the measures proposed and the reasons why no agreement could be reached.;

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, 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 withhold 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 to grant access to the concerned data shall be subject to review. This review shall be carried out by an independent authority. The authority shall act transparently towards the requesting user or recipient. It shall also provide effective redress.

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. That demonstration must prove that the refusal is necessary and proportionate and shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries,and 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 and shall contain detailed, verifiable and evidence-based reasoning 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 proposed extension of the trade secrets safeguard, which is intended to guard against the risk of trade secrets being disclosed to third countries, provides further grounds for refusal which run the risk of undermining the objectives of the Data Act by allowing original equipment manufacturers to systematically limit SMEs from accessing data. SMEs often lack the wherewithal to assess complex corporate structures or demonstrate that their requests are devoid of risk. The burden of proof should continue to be with the data holder; safeguards should be applied restrictively, and refusals should be duly substantiated and subject to independent review.

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 or categorial 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.;

8a. Article 4, paragraph 13 is amended as follows

Justification

This amendment clarifies that the use of non-personal data does not require additional user consent or contractual arrangements. It enhances legal certainty, reduces unnecessary administrative burdens and facilitates the effective use of non-personal data in line with the objectives of the Regulation.