Article 4 – The rights and obligations of users and data holders with regard to access, use and making available product data and related service data

Trade secrets shall be preserved and do not have to be disclosed, unless the data holder and the user have taken all necessary measures prior to the disclosure to preserve their confidentiality in particular regarding third parties. The data holder or, where they are not the same person, the trade secret holder shall identify the data which are protected as trade secrets, including in the relevant metadata, and shall agree with the user proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, in particular in relation to third parties, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct.

Where the data holder who is a trade secret holder is able to demonstrate that it is likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the user poses a significant 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 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. Data holders who refuse to share data pursuant to the first sub-paragraph shall notify all instances of refusal to the competent authority designated pursuant to Article 37 every 3 months. The Commission shall issue guidelines, in consultation with the European Data Innovation Board (EDIB), on the application of this paragraph, such as the assessment of serious economic damage, the type of data in critical economic sectors that typically may give rise to serious economic damage when unlawfully disclosed to third parties, on the enforceability of trade secrets protection in third countries, and how to assess the control of economic operators by third-country entities.