The EU Directive on the Protection of Trade Secrets

Abstract

Perceiving the problems triggered by a lack of consistent framework for the legal protection of trade secrets across the European Union and the need to nurture innovation and creativity within the internal market, in November 2013 the European Commission undertook to propose a Directive which harmonises the minimum safeguards provided by the 28 Member States. The first chapter of this research project gives an overview of the current fragmented scenario, highlighting the existing divergences between Member States’ laws to protect businesses from the misappropriation of their undisclosed know-how. The options explored by the Commission to combat the unlawful acquisition, use and disclosure of trade secrets across the EU are outlined, whilst analysing the reasons why a Directive was deemed to be the preferred option. The second chapter delves into the main features of the initial proposal as drafted by the Commission, namely the common definition and redress mechanisms available to trade secret holders introduced by the Directive. This chapter also sheds light on the criticism which the initiative received from civil society, claiming that a legislation intended to foster innovation and regulate fair competition between businesses will result in a blanket right to corporate secrecy, suppressing citizens’ freedoms and their right to make informed decisions. The third chapter comparatively analyses the amendments made to the Commission’s draft in the final compromise text negotiated between Council and Parliament’s Committee on Legal Affairs. The final sections of the research project critically examine whether the Commission’s objectives have been reached and whether the approved Directive strikes a balance between corporate and democratic interests.