Article 5

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

Justification

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