Adoption of the EU Directive on trade secrets: legal assessments including on whistleblowers

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The Academy of European Law (ERA)  based in Trier, organised in Brussels a workshop on “The adoption of the EU directive on trade secrets” . While the workshop was geared at lawyers in private practice and representatives of national and intellectual property officers and ministries, the EFJ as well as EUROCADRES, organising professionals and managers in branches of industry, public and private services and administrative departments, were present as well.

Mariano Fernandez-Salas, European Commission, DG Internal Market, gave an overview of the directive explaining also the procedure which started with a Commission proposal in November 2013 and the final publication in the Official Journalism on 15.06.2016. The end of the transposition into national legislation period is July 2018. The definition of trade secrets is identical with the one from the TRIPS agreement. Among other, he outlined the exemptions regarding journalist’ and media (Article 5 & rec. 19 and 20). He mentioned the double reference to the right to freedom of the media in recital 19, Article 1.2 (a) and Article 5 (a) which is due to the co-legislation procedure. He acknowledged the wide-spread criticism regarding the whistleblowers’ exemption being to broad, and said that more far reaching protection at national level is possible. The exemptions must be guaranteed at national level, Fernandez-Salas stressed. When it comes to labour related issues and contracts, the autonomy of social partners  must be respected.

Dr. Ralph Nack, German expert on patent law, regards the trade secrets as a new intellectual property right. He shared the critical assessment regarding whistleblowers:

“What happens if reveal of information done in good faith, but only some of the leaked confidential material reveal wrongdoing, and some of it does not? Whistleblowers have to prove the public interest, and such burden of proof makes it very inattractive to blow the whistle. Courts will have to give shape to somewhat blurry concept of general  public interest in the framework of the directive.”

Nack said this can and should be corrected at national level. The directive is a minimum harmonisation, a lot depends on implementation; court interpretations and contractual law in employment relationship.

Martin Jefflén, President of Eurocadres, outlined “workers’ perspectives on trade secrets discussing mobility, whistleblowers and trade union /workers ‘ representation. While he expressed satisfaction with the safeguards on trade union rights added during co-legislation procedure, Jefflén agreed that the exception on whistleblowers (5.b) still potentially poses great problems and the risk to end up in court with such a general terminology as “general public interest” is high. He acknowldged meanwhile the improvements made under exceptions. Jefflén called for EU wide whistleblower protection, as this whistleblower exception is no protection.

The directive

Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure ( 1 )

can be down-loaded in all EU official languages, here:

The rest of the workshop dealt with trade secrets in court proceedings. www.era.int

 

Credit photo: EFJ

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