On 5 July 2016, the Directive (EU) 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure ("Directive") entered into force. The Directive is expected to become national law by 9 June 2018 at the latest.

The differences in the legal protection of trade secrets in the various jurisdictions within the EU were the reason for the European Union to provide rules that unify the laws of the Member States. By doing so, it ensures that the internal markets will be strengthened and there will be a sufficient and consistent level of civil redress (see recital 8 et seq).

In order to provide a common understanding, Article 2 of the Directive defines "trade secrets".

What affect does the Directive have on Austrian Civil Procedural Law?

Article 9 of the Directive provides for certain rules when it comes to the preservation of confidentiality of trade secrets in the course of legal proceedings. Therefore, should we expect any relevant changes?

In Austria, trade secrets are protected by the Austrian Civil Procedure Code ("ZPO"). For example, in cases where the opponent keeps documents which are necessary for the other party's reasoning, the court may instruct the opponent to disclose the documents. However, the instructed party may refuse to disclose the documents if trade secrets may be violated (see Section 305 para 4 ZPO). The ZPO also contains a similar provision regarding witness testimonies (see Section 321 para 1 no 5 ZPO).

In cases where the economic situation of a company is subject to proceedings, the protection of their trade secrets could be also granted by involving certain court experts who screen the relevant data and exclude parts of the documentation which could include trade secrets, or the expert can provide the court and the parties with an unobjectionable summary.

Based on this, it seems that there is little need to further adapt the Austrian ZPO, perhaps the definition of a trade secret will be implemented. In this context, it has to be noted that the Austrian Supreme Court has already referred to this Directive and stated that the present Austrian interpretation of trade secrets does not seem to compromise the achievement of the Directive's objectives (see 4 Ob 165/16t).

We will keep you updated if any relevant changes might occur.