New EU Trade Secrets Directive

Monday, 15 August 2016

As of 27 May 2016, the new EU Trade Secrets Directive (the “Directive”) has been adopted by both the European Parliament and the European Council.

The aim of the Directive is to harmonise the definition of "trade secret", the remedies available to trade secret holders in an event of misuse, and the measures which a Court can take to prevent disclosure of trade secrets during legal proceedings. The Directive will not impact restrictive covenants or whistleblowers where the disclosure of a trade secret serves the public interest.

Notably, the Directive provides a long-awaited definition of a trade secret, being information which:

• is secret in the sense that it is not generally known among or readily accessible to persons within the circles that would normally deal with the kind of information in question;
• has commercial value because it is a secret; and
• has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it a secret.

Once published in the Official Journal of the EU, Member States will have two years in which to incorporate the Directive into domestic law.

Key Implications

The Directive will be of particular significance if you or your business possess trade secrets or has access to the trade secrets of others and you should seek legal advice as to how to ensure you are adequately protected in this regard. As is the case with all EU legislation, there is now an element of business uncertainty as to whether there will be a divergence in approach post-‘Brexit’ between the UK and the rest of Europe; however, Ireland will retain the EU standards.

For further information, contact a member of our Technology Team.