Medical devices

The life sciences sector encompasses companies in the fields of pharmaceuticals, biotechnology and medical technology that focus on the research, development and commercialisation of a wide range of products that have a medical application. Such products include pharmaceuticals (ie everything from over-the-counter painkillers to advanced therapies for treating diseases such as cancer or HIV), medical devices (eg plasters, syringes, heart stents, pacemakers, etc) and diagnostics.

Understandably, the life sciences sector is highly regulated and the development and commercialisation of products in the life sciences sector is subject to stringent rules. However, there is not one clearly defined body of ‘pharmaceutical’ or ‘life sciences’ law, instead, a complex framework of rules exists that derives from a variety of sources. In the EU, a large amount of the regulation originates from Directives or Regulations and is supplemented by guidance issued by the European Commission and by the European Medicines Agency (EMA), the decentralised agency of the EU responsible for the scientific evaluation, supervision and safety monitoring of medicines.

Article 2(1) of Regulation (EU) 2017/745, the Medical Devices Regulation (MDR) defines a medical device as ‘…any instrument, apparatus, appliance, software,

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Automated decision-making and DSARs: right to access means a right to explainability (CK v Magistrat Der Stadt Wiendun & Bradstreet Austria GMBH)

Information Law analysis: The Court of Justice provided several clarifications around the scope of data subject access requests (DSARs) in the context of automated decision-making. The court held the determining factor for whether information constitutes ‘meaningful information about the logic involved’ under Article 15(1)(h) of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) is whether the information enables the data subject to understand the logic involved in automated decision-making involving their personal data. The court also held disclosure by controllers should be underpinned by the principles of transparency, which requires information to be clear, accessible and intelligible, both in terms of content and form, from the perspective of data subjects. In the context of automated decision-making this doesn’t necessarily mean providing the exact algorithm, if it doesn’t help the data subject’s understanding of the ‘how’. The court confirmed DSARs do not mandate the disclosure of trade secrets, but this can only be decided by the relevant supervisory authority or competent court, after assessing all relevant information provided to them by a controller. The protection of trade secrets cannot be used as a blanket excuse by businesses to withhold certain information from individuals making a request under Article 15(1)(h) of the EU GDPR. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

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