The EU Council finally formally adopted the Directive on the protection of trade secrets. The main purpose of the Directive is to harmonise and enhance the protection of trade secrets Europe-wide and to thus create an innovation-friendly environment for businesses.

Most players in the automotive sector knowingly or unknowingly own trade secrets (‘knowhow’). Confidentiality often qualifies as the most effective way to protect valuable commercial or technical information. This can include manufacturing processes, technical documentation or even compilations of sensitive data, such as price and customer lists.

Aware of their value and of the differences in the legal protection of trade secrets between the Member States, the European Commission proposed, already back in November 2013, a Trade Secrets Directive. The aim is to harmonise the protection of trade secrets Europe-wide, upgrade that protection to basically the level of intellectual property and to thus create an innovation-friendly environment for businesses.

The Directive deals inter alia with the following questions:

  • The definition of a trade secret;
  • Unlawful acquisition, use or disclosure of trade secrets;
  • Provisional and precautionary measures that can be granted by the competent judicial authorities;
  • Measures resulting from a decision on the merits of the case;
  • Proportionality and safeguards against abuse of process.

Although having been subject to strong criticism (its opponents indeed consider that the Directive constitutes an impediment to the freedom of expression, giving a ground to condemn both the whistle blower or the employee and the journalist for revealing, without consent of the trade secret holder, secret information that the world owes to know), the Directive seeks to find a balance of interests and was formally adopted by the EU Council on 27 May 2016. Member States now have two years to implement the Directive in their national legislation.