Trade Secrets basics - EU

   Definition of a trade secret

Pursuant to Article 2 of the Directive (EU) 2016/943: "'Trade secret' means information which meets all of the following requirements:

• (a) it is secret in the sense that 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;
• (b) it has commercial value because it is secret;
• (c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret."

   Requirements to qualify for protection

The information must satisfy the statutory definition above and show that reasonable steps have been taken to keep the information secret (Article 2, Directive 2016/943). 

   Protection Mechanism

If the information qualifies as a trade secret under the above definition it is protected against unlawful acquisition, use or disclosure of the information, Article 4 of the Directive (EU) 2016/943 states that "Member States shall ensure that trade secret holders are entitled to apply for the measures, procedures and remedies provided for in this Directive in order to prevent, or obtain redress for, the unlawful acquisition, use or disclosure of their trade secret".

   Remedies

Injunctions and corrective measures (e.g. recall, depriving the infringing goods of their infringing quality and destruction – Article 12 of the Directive (EU) 2016/943), compensation (limited to the amount of royalties or fees which would have been due, had that person requested authorisation to use the trade secret in question, for the period of time for which use of the trade secret could have been prohibited – Article 13 of the Directive (EU) 2016/943 ), damages (Article 14 of the Directive (EU) 2016/943) and publication of the judicial decision (Article 15 of the Directive (EU) 2016/943).

   Confidentiality in Proceedings

Member States must ensure effective measures to preserve the confidentiality of alleged trade secrets in legal proceedings, including restrictions on access to documents and hearings, non-confidential versions of filings and decisions, and tailored protective orders (Article 10 of the Directive (EU) 2016/943).

   Limitation Period

Across EU, the duration of the limitation period shall not exceed 6 years from the later of the cessation of unlawful activity or when the trade secret holder knew or should have known of the infringement (Article 8 of the Directive (EU) 2016/943). However, each Member State may establish stricter limitation periods (for example, in Italy the period is 5 years).