Article 5

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

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.

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.;

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.

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.;