Directive (EU) 2016/943 (protection of trade secrets)

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Directive (EU) 2016/943

Title: Directive (EU) 2016/943 of the European Parliament and of the Council of June 8, 2016 on the protection of confidential know-how and confidential business information (trade secrets) against unlawful acquisition, use and disclosure
Designation:
(not official) 		Trade Secret Protection Policy
Scope: EEA
Legal matter: Commercial law
Basis: TFEU , in particular Article 114
Procedure overview: European Commission
European Parliament
IPEX Wiki
To be
implemented in national law by: 		June 9, 2018
Implemented by: Law on the protection of trade secrets (Germany)
UWG amendment 2018 (Austria)
Reference: OJ L 157 of 15.6.2016, pp. 1-18
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

Through the directive on the protection of trade secrets (Directive (EU) 2016/943, Engl. : Trade Secrets Directive ) are confidential know-how and confidential business information ( trade secrets ) are protected against unauthorized acquisition.

history

The protection of intellectual property was already regulated under Union law with Directive 2004/48 / EC . This Directive 2004/48 / EC takes precedence over Directive (EU) 2016/943 as a lex specialis .

The directive on the protection of trade secrets thus complements the protection from Directive 2004/48 / EC.

Objectives and purpose of the guideline

The main aim and purpose of Directive (EU) 2016/943 is to achieve a smoothly functioning internal market for research and innovation by creating measures, procedures and legal remedies to protect trade secrets, in particular to prevent unlawful acquisition and use and disclosure deterring a trade secret .

This is necessary because the investments by companies and non-commercial research institutions in the acquisition, development and application of know-how and information create a competitive advantage and this investment in the creation and application of intellectual capital is and is a determining factor for competitiveness Market success of companies through innovation and thus their profitability, which ultimately represents the motivation for their research and development activities. In various constellations, however, it is not possible for these companies to provide the necessary protection, e.g. B. to guarantee through patents , trademark protection, etc., but must be able to be taken care of by protecting business secrets.

Directive (EU) 2016/943 may not be used to pursue illegitimate intentions that are incompatible with the objectives of this directive . According to the Directive, courts must therefore have the power to take reasonable measures against applicants who act abusively or dishonestly and who make manifestly unfounded applications, for example for the purpose of unreasonably delaying or restricting the opponent's market access or otherwise intimidate or cause trouble .

Limitation of the Policy

Directive (EU) 2016/943 must not serve to jeopardize or undermine fundamental rights and freedoms or the common good, such as public safety, consumer protection, public health and environmental protection , and may also protect workers' mobility (free movement of workers ) or the right to respect for private and family life and the protection of personal data of all persons. The protection of confidentiality must also be refused if higher-ranking interests, e.g. B. the freedom of expression , freedom of information , freedom of the press, etc. require this or through the disclosure of business secrets z. B. an illegal activity (e.g. through whistleblowing ) is discovered.

The guideline cannot be used by companies to withhold information to the public or government agencies that is required to be published or made available by law.

Directive (EU) 2016/943 cannot be used to establish exclusive rights to know-how or information protected as such that is protected as a trade secret. Independent discovery of the same know-how or the same information should continue to be possible. The reverse engineering with a legally acquired product remains a legally permissible means of acquiring information, unless contractually agreed otherwise.

Directive (EU) 2016/943 does not affect the application of the competition rules, in particular Articles 101 and 102 TFEU, and the measures, procedures and legal remedies provided for in this directive (...) may not be used to promote competition contrary to the provisions of TFEU ​​in an inadmissible way .

Necessity of the directive

The Directive was necessary because the legal protection of trade secrets provided for in the Member States was not equally protected across the Union, which fragmented the internal market in this area and weakened the general deterrent effect of the relevant rules .

The provisions of Directive (EU) 2016/943 do not prevent the member states from stipulating further protection against unlawful acquisition or unlawful use or disclosure of trade secrets, provided that the provisions expressly set out in this directive for the protection of the interests of other parties are observed .

Scope of the Directive

Spatial scope

The scope of the Directive (EU) 2016/943 on the protection of trade secrets extends to the EU member states and the other member states of the EEA .

Personal scope

The provisions of Directive (EU) 2016/943 on the protection of business secrets apply to all persons, regardless of their origin or location.

Material scope

Since the protection of trade secrets is a relative right (not an absolute right, such as the right to intellectual property ), only the unfair or dishonest appropriation or exploitation of trade secrets is frowned upon . Directive (EU) 2016/943 therefore makes a distinction in Articles 3 and 4 with regard to the acquisition, use and disclosure of trade secrets, whether this is lawful or unlawful, or whether we obtain it.

Definition of trade secret

According to Article 2 of Directive (EU) 2016/943 a "trade secret" is:

  • Information that is secret in the sense that neither in its entirety nor in the exact arrangement and composition of its components is generally known or readily accessible to the people in the circles who usually deal with this type of information ;
  • Information that (is) of commercial value because it is secret ;
  • Information subject to appropriate in the circumstances reasonable confidentiality measures by the person (are) having the lawful control over the information ;

To qualify as a trade secret, all of the above criteria must be met.

Legal protection

Directive (EU) 2016/943 contains a quite extensive catalog of legal protection measures that must be guaranteed by the EU member states. In principle, the protection of trade secrets must be guaranteed by simple but effective and dissuasive civil law measures (Article 6 of Directive (EU) 2016/943).

The legal protection measures must ensure proportionality and do not encourage abusive actions. The establishment of barriers to legitimate trade in the internal market must be avoided (Article 7 of Directive (EU) 2016/943).

The limitation periods may not exceed six years (Article 8 of Directive (EU) 2016/943).

In court proceedings, the confidentiality of business secrets must be maintained by all persons involved in the course of court proceedings and also after the conclusion of the court proceedings (Article 9 (1) of Directive (EU) 2016/943). For this purpose, z. B. (Article 9 Paragraph 2 of Directive (EU) 2016/943)

  • access to documents that contain trade secrets or alleged trade secrets are restricted,
  • the public are restricted in the proceedings,
  • Passages in court decisions are deleted or blackened out.

In any case, however, the right to an effective legal remedy and a fair trial must be guaranteed (Article 9 (3) of Directive (EU) 2016/943).

In order to protect its trade secret, a victorious party can request the court to take the following court orders and remedial measures (Article 12 of Directive (EU) 2016/943):

  • Suspension or, if applicable, prohibition of the use or disclosure of the trade secret ;
  • Prohibiting the manufacturing, offering, marketing or use of infringing products or the import, export or storage of infringing products for these purposes ;
  • appropriate remedial action with respect to the infringing product ;
  • the destruction of all or part of the documents, objects, materials, substances or electronic files that contain or embody the trade secret or, if applicable, the surrender of all or part of these documents, objects, materials, substances or electronic files to the applicant ;
  • Recall of the infringing products from the market ;
  • the elimination of the infringing quality of the infringing products ;
  • the destruction of the infringing products or, if applicable, their withdrawal from the market, provided that the protection of the trade secret in question is not impaired by this withdrawal from the market .

These measures are without prejudice to any damages that may be payable to the holder of the trade secret due to the illegal acquisition or use or disclosure of the trade secret (Article 12 (4) in conjunction with Article 14 of Directive (EU) 2016/943). For an unlawful acquisition or unlawful use or disclosure of a trade secret, an infringer must pay the holder of the trade secret compensation that is proportionate to the damage actually suffered as a result of the unlawful acquisition or unlawful disclosure or use (Article 14 (1) of Directive (EU) 2016 / 943).

The trade secret holder can request the publication of court decisions (Article 15 of Directive (EU) 2016/943).

Legal basis

The enactment of Directive (EU) 2016/943 was based in particular on Article 114 TFEU (measures for the approximation of legal and administrative provisions of the Union member states, which deal with the establishment and functioning of the internal market).

The directive was adopted by the Council and the European Parliament as part of the ordinary legislative procedure .

Structure of Directive (EU) 2016/943

Directive (EU) 2016/943 has the following structure:

  • CHAPTER I (subject matter and scope)
    • Article 1 (subject matter and scope)
    • Article 2 (definitions)
  • CHAPTER II (Acquisition, Use and Disclosure of Trade Secrets)
    • Article 3 (Lawful Acquisition, Lawful Use and Lawful Disclosure of Trade Secrets)
    • Article 4 (unlawful acquisition, unlawful use and unlawful disclosure of trade secrets)
    • Article 5 (exceptions)
  • CHAPTER III (Measures, Procedures and Remedies)
    • Section 1 (General Provisions)
      • Article 6 (general obligation)
      • Article 7 (proportionality and unfair actions)
      • Article 8 (limitation periods)
      • Article 9 (maintaining confidentiality of trade secrets during legal proceedings)
    • Section 2 (Provisional and Preventive Actions)
      • Article 10 (provisional and preventive measures)
      • Article 11 (conditions of use and protective measures)
    • Section 3 (measures based on a factual decision)
      • Article 12 (court orders and remedial measures)
      • Article 13 (conditions of use, protective provisions and alternative measures)
      • Article 14 (damages)
      • Article 15 (publication of court decisions)
  • CHAPTER IV (Sanctions, Reporting and Final Provisions)
    • Article 16 (penalties for non-compliance with this Directive)
    • Article 17 (exchange of information and correspondents)
    • Article 18 (reports)
    • Article 19 (implementation)
    • Article 20 (entry into force)
    • Article 21 (addressees)

Implementation of the directive

According to Article 19 of Directive (EU) 2016/943, the directive had to be implemented by June 9, 2018. In Germany, the protection of secrets has so far been regulated in Sections 17–19 of the Act against Unfair Competition . The law of April 18, 2019 ( Federal Law Gazette I p. 466 ) summarizes this in a new law on the protection of business secrets (GeschGehG). In Austria, the requirements of the directive have been integrated into the federal law against unfair competition that has existed since 1984. Legal protection in Austria with regard to the protection of business secrets is described as incomplete.

Web links

Individual evidence

  1. ↑ Directive (EU) 2016/943 of the European Parliament and of the Council of June 8, 2016 on the protection of confidential know-how and confidential business information (trade secrets) against unlawful acquisition as well as unlawful use and disclosure (OJ EU No. L 157, 1 to 18).
  2. ↑ See Recital 39 of Directive (EU) 2016/943.
  3. ↑ a b Recital 1 ff and 21 of Directive (EU) 2016/943.
  4. ↑ Recital 1 ff of Directive (EU) 2016/943.
  5. ↑ Recital 22 ff of Directive (EU) 2016/943.
  6. ↑ Article 1 and recitals 11 f, 18 and 26 of Directive (EU) 2016/943.
  7. ↑ Article 1 and recitals 18 and 35 of Directive (EU) 2016/943.
  8. ↑ See Article 5 of Directive (EU) 2016/943 and recitals 19 f and 34.
  9. ↑ Recital 11 of Directive (EU) 2016/943.
  10. ↑ Recital 16 of Directive (EU) 2016/943.
  11. ↑ Recital 38 of Directive (EU) 2016/943.
  12. ↑ Article 1, Paragraph 1 and Recital 8 ff of Directive (EU) 2016/943.
  13. ↑ See long title of the guideline.
  14. ↑ Federal Law Gazette No. 448/1984. See § 45 and §§ 26a to 26j UWG.
  15. ↑ Jürgen CT Rassi: The Directive 2016/943 / EU for the protection of trade secrets - An overview , Zak 21/2016, p. 404 ff.