Recently, the EU Member States adopted the Trade Secrets Directive. With the introduction of this Directive, companies are now able to better protect their trade secrets against theft and other abuse. The Directive must be transposed into national law within two years. Below is an overview of the key points of the Directive.

  • There is a trade secret if three requirements are met: (i) it must be confidential information, (ii) the information must have a commercial value because of its confidentiality; and (iii) the trade secret holder must have made reasonable efforts to keep the information.
  • The acquisition of a trade secret is unlawful if the trade secret holder has not given its consent and if it is carried out by means of (i) unauthorised access to, appropriation or copying of any documents, objects, materials, substances or electronic files lawfully under the control of the trade secret holder which contain the trade secret or from which the trade secret can be deduced, or (ii) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.
  • The use or disclosure of a trade secret is considered unlawful whenever carried out, without the consent of the trade secret holder, by a person who (i) has acquired the trade secret unlawfully (see previous paragraph), (ii) is in breach of an obligation of confidentiality or confidentiality agreement, (iii) is in breach of a contractual or other obligation to limit the use of this trade secret.

What does this mean for your company?

It is advisable to identify in advance whether the information your company wants to protect can be regarded as a 'trade secret'. In particular, an assessment should be made whether action has been taken in order to keep this information confidential.