Recital 12

The activation of the refusal mechanism should remain voluntary, and the demonstration done only upon its activation. Data holders should not be required to conduct a full-scale analysis or demonstration of the level of trade secret protection in third countries or by a third country entity as a precondition to be able to substantiate their refusal to sharing data or to disclose trade secrets. In their demonstration, data holders may take into consideration various factors, such as insufficient or inadequate legal standards, poor or arbitrary enforcement, historical infringements, foreign disclosure obligations conflicting with Union law, limited legal recourse or remedies for Union entities, the strategic misuse of procedural tactics to undermine competitors, or undue political influence. Given the diverse range of entities, third countries, and data sharing scenarios involved, data holders should focus their assessment and demonstration on pertinent risks and act accordingly, including by setting appropriate safeguards or activating the refusal mechanism. Refusals should be clear, proportionate, and tailored to the specific circumstances of each case, rather than being applied systematically or in a generalized manner across entities of an entire third country.