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20 Jun 2016

Protection of Trade Secrets - Directive 2016/943

Directive (EU) 2016/943 of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (hereinafter the “Directive”) was formally adopted by the Council on May 27th 2016.

On June 15th 2016, the Directive was published in the Official Journal and entered into force on July 5th 2016. Member states have to transpose the Directive into their national law by June 9th 2018.

In the European Union, some Member States do not have legislation addressing the misappropriation of trade secrets, such as Luxembourg, Belgium and France, whereas others only have a widely and an ineffective protection for trade secrets.

The Directive therefore aims at creating a uniformity of protection for trade secrets within the EU.

  1. The Directive introduces a new definition of “trade secret”, covering know-how, business information and technological information that (i)“is secret in the sense that it is not (...) generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question”, (ii)“has commercial value because it is secret” and (iii) “has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret” (Article 2 (1) of the Directive).
     
  2. The Directive requires that Member States shall provide the measures, procedures and remedies necessary to ensure the availability of civil redress against the unlawful acquisition, use and disclosure of trade secrets (Article 6 (1) of the Directive). This means that the Member States shall provide the legitimate holder an ius prohibendi enforceable before the civil jurisdiction.
     
  3. Besides the possibility for the trade holder e.g. any natural or legal person lawfully controlling a trade secret to obtain compensation as a result of the misappropriation of his/her trade secret, the Directive foresees more measures in the case of unlawfully acquired, used or disclosed trade secrets: (i) the prohibition of the importation, exportation or storage of infringing goods and (ii) the seizure and prohibition on sale or marketing of infringing goods.
     
  4. The Member States shall lay down rules on the limitation periods applicable to substantive claims and actions for the application of the measures, procedures and remedies necessary to ensure the availability of the redress against the unlawful acquisition, use and disclosure of trade secrets, without exceeding a limitation period of six years (Article 8 of the Directive).
     
  5. Finally, the Directive obliges Member States to ensure that no person participating in legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret (e.g. parties, lawyers, court officials, witnesses, experts) is permitted to use or disclose any trade secret or alleged trade secret that has been identified as confidential by the competent judicial authorities.

Hence, the Member States shall ensure that the competent judicial authorities may take specific measures necessary to preserve the confidentiality of any trade secret or alleged trade secret, such as restricting the access to any document containing trade secrets or alleged trade secrets, as well as restricting the access to hearings, when trade secrets or alleged trade secrets may be disclosed (Article 9 of the Directive).