On 16 October 2018 the Dutch Senate passed a Bill that implements the EU Trade Secrets Directive (the Bill). The Bill, after its publication as Act, shall enter into force at a time to be determined by Royal Decree.
The debate in the Senate concentrated on a provision of the Bill that gives the court the ability to order the unsuccessful party to pay the full legal costs of the other party (the Provision). The Provision forms no part of the EU Trade Secrets Directive so the Netherlands opted for a broader protection for trade secrets than the directive provides. Members of various political parties expressed their concerns, they argued that the unpredictability and the legal inequality of the Bill has increased by the Provision. This would affect an important objective of the Bill: protecting trade secrets of smaller parties in an accessible, simple and cost-effective way.
In response, the government clarified that a court is not obliged to apply the Provision. An order to pay the full legal costs may only be reasonable in the case of flagrant infringements, if it is clear that there is a trade secret and if the infringer has deliberately infringed it. The objective of the Provision is mainly to prevent that small and medium-sized enterprises (but also other holders of trade secrets) that win a lawsuit when there is a flagrant infringement, will remain with the costs of the lawsuit. The Provision puts parties that cannot bear major litigation risks in a better position, because they are more likely to get their full legal costs reimbursed in case of a flagrant infringement than when the court-approved scale of costs apply (this is limited to a part of the legal costs). The court can stick to the court-approved scale of costs in lawsuits that are less clear-cut. The government is therefore not afraid that the Provision would increase the legal inequality in the protection of trade secrets.
Furthermore, the government amended the Bill. A paragraph in the Provision has been added stating that rules may be laid down by an order in council with respect to in which cases the court can order the unsuccessful party to pay the full costs of the other party.