European Directive (EU) 2016/943 aims to harmonize and improve the legal protection of business information throughout the European Union. It also has far-reaching consequences for trade secret holders, however.
The German legislator has now transposed the Directive into national law and promulgated the “Law on the Transposition of Directive (EU) 2016/943 on the Protection of Undisclosed Know-how and Business Information (Trade Secrets) Against their Unlawful Acquisition, Use and Disclosure.” It entered into force on April 26, 2019.
In contrast to current German law, a trade secret is not “automatically” protected by law, but only if the holder of the trade secret has taken appropriate measures to keep it confidential. The trade secret holder may have to submit and prove those measures in a possible trial. Companies that have not taken appropriate measures or are unable to submit and prove them in court may possibly not be considered worthy of protection in court proceedings.
In particular, Directive (EU) 2016/943 leads to the following additional amendments:
Reverse engineering is permissible as long as it is not contractually excluded.
It is also effectively possible to maintain trade secrecy in state court proceedings.
An infringement does not require culpable action.
The protection of trade secrets concerns, for example, technical know-how, commercial secrets such as customer and supplier lists, business strategies or data collections. Interfaces exist in particular to data protection law, IT law, employment law, and contract law. In addition to organizational measures as well as legal and actual access restrictions to information, it may also make sense, for example, to train employees in establishing the right amount of secret information. We therefore pool our expertise and experience from various areas in the “Protection of Trade Secrets” task force, working together in an interdisciplinary team.
Lawyers and Members in practicegroup Protection of Trade Secrets