What Happens to Your Trade Secrets When You Hand Over AI Act Documentation? (Article 78)

Complying with the EU AI Act means handing your most sensitive material — the Annex IV technical documentation, model details, sometimes source code — to regulators and conformity-assessment bodies. The reasonable fear: does this expose my intellectual property? Article 78 of Regulation (EU) 2024/1689 is the answer. It binds the authorities, notified bodies and the Commission to respect the confidentiality of information and trade secrets they obtain, and it tells you what protection you can expect — and where the limits sit.

This page sets out the Article 78 duty, what it covers, the carve-outs, and how it interacts with the disclosures you can still be compelled to make. For the documents themselves, see the Annex IV technical documentation requirements and the broader provider obligations.

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The one-paragraph answer

Article 78 obliges every party that obtains information under the AI Act — national competent authorities, notified bodies, the Commission and anyone acting on their behalf — to respect the confidentiality of that information and to protect intellectual property rights, trade secrets and confidential business information, including source code. They may use what they collect only for the purpose it was collected. The protection is strong but not absolute: it yields where disclosure is needed to protect health, safety or fundamental rights, and it does not block court proceedings or the specific transparency duties the Act itself imposes.

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What Article 78 actually protects

Article 78 is a duty owed to you by the people who receive your material. It covers three things explicitly:

• Confidentiality of information and data obtained in carrying out tasks under the Regulation.
• Intellectual property rights, confidential business information and trade secrets — Article 78 names source code as a specific example of material whose confidentiality must be protected.
• The integrity and security of the information, with parties required to put appropriate technical and organisational measures in place.

Crucially, the recipients may request only the data strictly necessary to assess the risk and exercise their powers, and use it only for the purpose it was collected. A market-surveillance authority cannot lawfully repurpose your training-data summary for an unrelated investigation, or pass your model internals to a competitor.

Who is bound

The duty reaches the whole supervisory chain: national competent authorities designated under Article 70, notified bodies designated under Article 31, the Commission and the AI Office, and any natural or legal person acting on their behalf — including external experts. It also binds them to handle classified information under the relevant security rules.

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What a provider can expect when handing over documentation

In practice, Article 78 lets you submit a real technical file rather than a hollow one. Three expectations follow:

1. Your Annex IV file stays inside the supervisory chain. The technical documentation you prepare under Article 11 — system description, design choices, data, testing, risk-management records — is protected business information. It is not published, and it cannot be handed to third parties outside the purpose for which it was collected.
2. Source code gets the highest protection, and is requested only when needed. Article 78 singles out source code; authorities request it only where it is necessary to assess conformity and other, less intrusive means have not sufficed. It is not a routine submission.
3. Necessity and purpose-limitation cap the ask. You can push back on a request that exceeds what is strictly necessary for the specific assessment. The principle is built into the Article.

Note the contrast in the last row: the Article 47 Declaration of Conformity and the CE marking are meant to be visible — they are your public attestation, not confidential material. Article 78 protects the evidence behind the attestation, not the attestation itself.

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The limits: where confidentiality yields

Article 78 is qualified, and a provider should know exactly where the protection stops.

• Health, safety and fundamental rights. Confidentiality does not prevent disclosure where it is necessary to protect people. An authority can act on, and where necessary share, information that reveals a serious risk.
• Court and administrative proceedings. Article 78 does not override disclosure required in legal proceedings.
• Information exchange between authorities. Authorities and the Commission may share information with each other for supervisory purposes — but the recipients are themselves bound by the same confidentiality duty, so the protection travels with the data.
• The Act's own transparency duties. Article 78 does not switch off the public-facing obligations the Regulation imposes — EU-database registration under Article 49 (the public-record fields), the Article 50 transparency disclosures, or the Article 47 declaration. These are deliberate transparency points, not breaches of confidentiality.

The structure is sensible: the evidence you submit to prove conformity is confidential; the fact of conformity, and the safety-critical information regulators need to protect the public, are not.

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How Article 78 interacts with Articles 21 and 74

Two disclosure powers commonly come up alongside Article 78, and they do not contradict it.

Article 21 lets a national competent authority make a reasoned request for the information and documentation needed to demonstrate a high-risk system's conformity — in an EU official language. You must provide it, but the authority receives it under the Article 78 confidentiality duty. See Article 21.

Article 74 and the following market-surveillance provisions give authorities investigatory powers, including access to documentation, source code and data where justified. Again, what they obtain is held under Article 78. The disclosure duty (you must hand it over) and the confidentiality duty (they must protect it) are two halves of the same bargain. See market surveillance.

The same logic applies to your serious-incident reporting under Article 73: you report, the authority receives the report under Article 78 protection. Disclosure obligations and confidentiality run in parallel, not in conflict.

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Worked example: a provider weighs what to submit

Quellcode GmbH — a fictional 70-person German company (~€12M turnover) — provides a high-risk recruitment-screening system and is preparing for an authority request after a complaint.

• The Annex IV file. Quellcode submits its full Article 11 technical documentation — system design, data governance, testing, risk-management records. Under Article 78 this is confidential business information; it stays within the supervisory chain and cannot be repurposed.
• A source-code request. The authority signals it may need parts of the source code. Quellcode notes that Article 78 names source code specifically and that requests must be strictly necessary; it asks the authority to justify the necessity and to scope the request, which the Article supports.
• The declaration and registration. Quellcode's Article 47 Declaration of Conformity and its Article 49 registration fields are not confidential — they are the public attestation. It does not treat those as protected.
• A safety-critical finding. If the assessment surfaces a serious risk to candidates' fundamental rights, Quellcode accepts that Article 78 would not block the authority acting on, or sharing, that safety-relevant information.

The verdict: Quellcode can submit a genuine, complete technical file with confidence that its IP and source code are protected — while recognising the public attestations and the safety carve-out sit outside that protection. As an SME, its penalty exposure is capped at the lower figure under Article 99(6).

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How Confir helps

Confir assembles the Annex IV / Article 11 technical documentation pack and the Article 47 / Annex V Declaration of Conformity that a provider submits — and it keeps the distinction Article 78 cares about clear: the confidential evidence behind conformity versus the public attestation of it. The engine is deterministic and rule-based, so the file you hand to an authority is reproducible and the rule behind every classification is visible and audit-defensible. To see what a request would ask for, start with provider obligations and the Annex IV requirements.

Related guides

• Annex IV technical documentation
• Provider obligations
• Article 21 — reasoned requests
• Market surveillance under the AI Act
• Article 73 — serious-incident reporting
• EU Declaration of Conformity (Article 47)