Data Act: a trade secret protects only what you have already mapped
8 min read
A typical scenario, not the case of a real company. The manufacturer of a connected machine tool receives, in October 2026, its first request for access to process data: cycles, calibration parameters, alarm thresholds. It replies with the line it believes is enough — “this data is covered by trade secrecy” — and finds out it is not. Regulation (EU) 2023/2854 (the Data Act) does not ask you to declare the secret when the request arrives. It asks you to have already mapped it.
The date concerns new products, not the installed base
The Data Act has applied since 12 September 2025. But the obligation touching design itself — data accessible to the user “by default”, article 3(1) — has its own, later date: article 50, third paragraph, is clear — “The obligation resulting from Article 3(1) shall apply to connected products and the services related to them placed on the market after 12 September 2026.”
This is the distinction almost everyone gets wrong: the deadline concerns products leaving the factory after that day, not the fleet already installed. A connected machine sold in March 2026 need not be recalled or updated: the obligation applies product by product, from the moment it is born. Whoever has an installed base has no retroactive obligation — and should not be alarmed over a deadline that does not concern them.
Three steps, in scale
Article 4 governs what happens when, among the data a user is entitled to receive, there is information the data holder considers a trade secret. It is not a generic power to refuse: there are three distinct steps, and each presupposes the one before it.
First: identify and agree, before disclosure. Paragraph 6 leaves no room: “Trade secrets shall be preserved and shall be disclosed only where the data holder and the user take all necessary measures prior to the disclosure to preserve their confidentiality”. It also specifies who does what: the data holder or, if different, 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”. Two tasks, not one: knowing what is secret, item by item and metadata included, and agreeing its protection with the user.
Second: withhold, with the authority in the loop. If the measures cannot be agreed, or the user fails to respect them, paragraph 7 allows the data holder to “withhold or, as the case may be, suspend the sharing of data identified as trade secrets.” It is not a silent block: the decision “shall be duly substantiated and provided in writing to the user without undue delay”, and the data holder “shall notify the competent authority designated pursuant to Article 37” that it has withheld the data, stating which measures were not agreed or implemented.
Third: refuse, but case by case. Only in exceptional circumstances, where the holder “is able to demonstrate that it is highly likely to suffer serious economic damage from the disclosure”, does paragraph 8 allow it to refuse access — “on a case-by-case basis”, not as a general rule, with the demonstration “duly substantiated on the basis of objective elements”. Refusal, too, leaves a trace: the full text of the paragraph, beyond the most-quoted excerpt, adds that whoever refuses this way must still notify the authority under article 37 — the same notice required for withholding.
Why everything rests on the first step
Whoever reaches the request stage without ever having done the paragraph 6 work has nothing to agree on: it cannot propose measures over a perimeter it never wrote down, because it does not know precisely what it is protecting — which process variables, which alarm thresholds, which logs are know-how and which are plain telemetry the user is entitled to regardless. The text names a layer almost nobody checks first: metadata — not just whether a sensor’s value is protected, but whether the field name and the sampling frequency are too.
It is the same exercise, on the same object, needed to prove the “reasonably adequate measures” required by trade secret law in any civil case — we wrote about that here: a written, dated perimeter of what is secret. Whoever has already done that work to hold up in court arrives ready for a Data Act request too; whoever never has discovers two open debts, not one.
Withholding builds a file, it does not avoid one
Paragraph 7 removes the easiest option — ignoring the request, or replying with a generic refusal. It requires two written communications: the justification to the user, and the notice to the authority. Withholding without ever having agreed anything does not close the problem: it moves it onto a desk where someone else is watching.
There is a second-order consequence worth spelling out. Every notice under article 37 builds, at the competent authority, a record of who withholds data, how often and for what reasons — the same authority to which article 37(5)(b) assigns the task of handling complaints “including in relation to trade secrets”. A supplier that withholds often, perhaps because it never did the paragraph 6 mapping, stops being an isolated case and becomes a visible pattern to whoever is watching.
Refusal applies to the request, not the product
Paragraph 8 offers no structural way out: “on a case-by-case basis” means there is no policy declaring an entire category of data permanently confidential. Each request must be justified on its own merits, against criteria the text lists — the enforceability of trade secret protection in third countries, the nature and level of confidentiality of the data requested, “the uniqueness and novelty of the connected product”.
That last criterion deserves attention: a mature product, with competitors already offering comparable solutions, objectively has less novelty to defend than one just launched. The window in which refusal rests on solid ground is the one right after launch, not the one in which the product is already mature — an implicit incentive worth recognising.
Sharing with a third party, and who rules on disputes
The mechanism repeats almost identically in article 5, on the user’s right to have data shared with a third party — a maintenance provider, an insurer: paragraphs 9-11 reproduce the same sequence. One technical difference: sharing with the third party is permitted “only to the extent that such disclosure is strictly necessary to fulfil the purpose agreed between the user and the third party” — a strict-necessity test that paragraph 6 of article 4 does not impose in the same way. Towards a third party, the perimeter to justify is narrower still.
Who rules on a dispute? Article 37 requires every Member State to designate one or more competent authorities, with powers that include complaints and investigations. In Italy we have found no record of the designating decree — no primary source for it as at the date of this article — we flagged this back in July — but the regulation is directly applicable, and the notification duties remain in force regardless.
The other side of the coin, and how we put it into operation
The Data Act does not empty out trade secrecy: it turns it into a procedure, while explicitly recognising the risk of serious economic damage. Whoever reads the regulation as “you must hand over everything” is as wrong as whoever reads it as “just write confidential”. Between the two wrong readings lies the work done beforehand — and for an organisation with several product lines and several suppliers holding secrets of their own, that is not a spreadsheet updated by hand when a request arrives.
This is the control we put into operation: mapping which data and metadata are trade secrets on each product, the measures agreed with each user, the written justification for every block and the notices sent to the authority become a trail with date, request and outcome — ready to produce at an inspection, not an opinion closed inside a document signed once. The same system also holds together the rest of the organisation’s data — plant, archives, business systems, sensors, documents, contracts — in a single operating model on which AI agents execute decisions with a human operator in command: for large enterprises, defence, government and healthcare, compliance is the entry point, not the destination. Both modes — on-premise on self-contained machines with no deep integration into the client’s network, or a dedicated cloud with a dedicated VPN and a data centre in Italy that we staff ourselves —, shared management, multi-model systems: we are already in the field, with systems in production across a number of enterprise organisations and beyond.
Could you say today, product by product, which data and which metadata are trade secrets — and what measures you have agreed on them? Half an hour with one of our experts is enough for a first map.