'Provisional agreement' reached on new EU trade secrets laws

Out-Law News | 16 Dec 2015 | 11:10 am | 2 min. read

"Provisional agreement" has been reached on proposed new EU laws that will offer businesses protection against the unlawful acquisition, disclosure and use of their trade secrets, EU officials have said.

The Council of Ministers, which represents the views of national governments within the EU, said that a deal has been struck with MEPs over the contents of a new Trade Secrets Directive.

Both the Council and the European Parliament will need to formally approve the new laws before they can come into force. The Parliament is expected to vote on the issue next year, the Council said.

Intellectual property law expert Emmanuel Gougé of Pinsent Masons, the law firm behind Out-Law.com, said the new Directive is "greatly awaited" by industry in France.

The text of the Directive on which provisional agreement has been reached is not yet available, but the Council said it is "intended to have a deterrent effect against the illegal disclosure of trade secrets, without undermining fundamental rights and freedoms or the public interest, such as public safety, consumer protection, public health, environmental protection and mobility of workers".

The Council said that the Directive will require EU countries to "provide for the measures, procedures and remedies necessary to ensure the availability of civil redress" where others unlawfully acquire, use or disclose their trade secrets. Those measures, procedures and remedies will need to be "fair, effective and dissuasive", it said.

Businesses will have up to six years from the point of an alleged infringement to bring a claim for unlawful acquisition, use or disclosure of their trade secrets before the courts, the Council said, confirming plans it had pushed for previously.

The Council said the Directive will leave it up to national courts to determine whether whistleblowers that act in good faith are justified in disclosing commercial secrets on general public interest grounds.

The new laws will also not prevent workers from using "experience and skills honestly acquired in the normal course of their employment", it said.

Under the European Commission's original proposals for the Directive, information that is secret, has commercial value because of its secrecy and has been the subject of "reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret" would qualify as a trade secret and for protection against misuse.

Information would be said to be 'secret' if "it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question", according to those proposals.

Luxembourg currently holds the presidency of the Council of Ministers. Etienne Schneider, Luxembourg's deputy prime minister and minister for economic affairs, said: "Nowadays there is great diversity of systems and definitions in member states as regards the treatment and the protection of trade secrets. This new instrument will bring legal clarity and a level playing field to all European companies. It will also help increase their interest in the development of research and innovation activities."