Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Strasbourg, 8 June 2016**
**(OR. en)**

**2013/0402 (COD)**
**LEX 1677**

**PE-CONS 76/1/15**

**REV 1**

**PI 107**

**CODEC 1766**

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**ON THE PROTECTION OF UNDISCLOSED KNOW-HOW**

**AND BUSINESS INFORMATION (TRADE SECRETS)**

**AGAINST THEIR UNLAWFUL ACQUISITION, USE AND DISCLOSURE**

PE-CONS 76/1/15 REV 1

# **EN**

**DIRECTIVE (EU) 2016/….**

**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**

**(Text with EEA relevance)**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114

thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee **[1]**,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 226, 16.7.2014, p. 48.
**2** Position of the European Parliament of 14 April 2016 (not yet published in the Official
Journal) and decision of the Council of 27 May 2016.

PE-CONS 76/1/15 REV 1 1

# **EN**

Whereas:

(1) Businesses and non-commercial research institutions invest in acquiring, developing and

applying know-how and information which is the currency of the knowledge economy and

provides a competitive advantage. This investment in generating and applying intellectual

capital is a determining factor as regards their competitiveness and innovation-related

performance in the market and therefore their returns on investment, which is the

underlying motivation for business research and development. Businesses have recourse to

different means to appropriate the results of their innovation-related activities when

openness does not allow for the full exploitation of their investment in research and

innovation. Use of intellectual property rights, such as patents, design rights or copyright,

is one such means. Another means of appropriating the results of innovation is to protect

access to, and exploit, knowledge that is valuable to the entity and not widely known. Such

valuable know-how and business information, that is undisclosed and intended to remain

confidential, is referred to as a trade secret.

(2) Businesses, irrespective of their size, value trade secrets as much as patents and other

forms of intellectual property right. They use confidentiality as a business competitiveness

and research innovation management tool, and in relation to a diverse range of information

that extends beyond technological knowledge to commercial data such as information on

customers and suppliers, business plans, and market research and strategies. Small and

medium-sized enterprises (SMEs) value and rely on trade secrets even more. By protecting

such a wide range of know-how and business information, whether as a complement or as

an alternative to intellectual property rights, trade secrets allow creators and innovators to

derive profit from their creation or innovation and, therefore, are particularly important for

business competitiveness as well as for research and development, and innovation-related

performance.

PE-CONS 76/1/15 REV 1 2

# **EN**

(3) Open innovation is a catalyst for new ideas which meet the needs of consumers and tackle

societal challenges, and allows those ideas to find their way to the market. Such innovation

is an important lever for the creation of new knowledge, and underpins the emergence of

new and innovative business models based on the use of co-created knowledge.

Collaborative research, including cross-border cooperation, is particularly important in

increasing the levels of business research and development within the internal market. The

dissemination of knowledge and information should be considered as being essential for

the purpose of ensuring dynamic, positive and equal business development opportunities,

in particular for SMEs. In an internal market in which barriers to cross-border

collaboration are minimised and cooperation is not distorted, intellectual creation and

innovation should encourage investment in innovative processes, services and products.

Such an environment conducive to intellectual creation and innovation, and in which

employment mobility is not hindered, is also important for employment growth and for

improving the competitiveness of the Union economy. Trade secrets have an important

role in protecting the exchange of knowledge between businesses, including in particular

SMEs, and research institutions both within and across the borders of the internal market,

in the context of research and development, and innovation. Trade secrets are one of the

most commonly used forms of protection of intellectual creation and innovative know-how

by businesses, yet at the same time they are the least protected by the existing Union legal

framework against their unlawful acquisition, use or disclosure by other parties.

PE-CONS 76/1/15 REV 1 3

# **EN**

(4) Innovative businesses are increasingly exposed to dishonest practices aimed at

misappropriating trade secrets, such as theft, unauthorised copying, economic espionage or

the breach of confidentiality requirements, whether from within or from outside of the

Union. Recent developments, such as globalisation, increased outsourcing, longer supply

chains, and the increased use of information and communication technology contribute to

increasing the risk of those practices. The unlawful acquisition, use or disclosure of a trade

secret compromises legitimate trade secret holders’ ability to obtain first-mover returns

from their innovation-related efforts. Without effective and comparable legal means for

protecting trade secrets across the Union, incentives to engage in innovation-related

cross-border activity within the internal market are undermined, and trade secrets are

unable to fulfil their potential as drivers of economic growth and jobs. Thus, innovation

and creativity are discouraged and investment diminishes, thereby affecting the smooth

functioning of the internal market and undermining its growth-enhancing potential.

(5) International efforts made in the framework of the World Trade Organization to address

this problem led to the conclusion of the Agreement on Trade-related Aspects of

Intellectual Property Rights (the TRIPS Agreement). The TRIPS Agreement contains, inter

alia, provisions on the protection of trade secrets against their unlawful acquisition, use or

disclosure by third parties, which are common international standards. All Member States,

as well as the Union itself, are bound by this Agreement which was approved by Council

Decision 94/800/EC **[1]** .

**1** Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of
the European Community, as regards matters within its competence, of the agreements
reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994,
p. 1).

PE-CONS 76/1/15 REV 1 4

# **EN**

(6) Notwithstanding the TRIPS Agreement, there are important differences in the

Member States’ legislation as regards the protection of trade secrets against their unlawful

acquisition, use or disclosure by other persons. For example, not all Member States have

adopted national definitions of a trade secret or the unlawful acquisition, use or disclosure

of a trade secret, therefore knowledge on the scope of protection is not readily accessible

and that scope differs across the Member States. Furthermore, there is no consistency as

regards the civil law remedies available in the event of unlawful acquisition, use or

disclosure of trade secrets, as cease and desist orders are not always available in all

Member States against third parties who are not competitors of the legitimate trade secret

holder. Divergences also exist across the Member States with respect to the treatment of a

third party who has acquired the trade secret in good faith but subsequently learns, at the

time of use, that the acquisition derived from a previous unlawful acquisition by another

party.

PE-CONS 76/1/15 REV 1 5

# **EN**

(7) National rules also differ as to whether legitimate trade secret holders are allowed to seek

the destruction of goods produced by third parties who use trade secrets unlawfully, or the

return or destruction of any documents, files or materials containing or embodying the

unlawfully acquired or used trade secret. Furthermore, applicable national rules on the

calculation of damages do not always take account of the intangible nature of trade secrets,

which makes it difficult to demonstrate the actual profits lost or the unjust enrichment of

the infringer where no market value can be established for the information in question.

Only a few Member States allow for the application of abstract rules on the calculation of

damages based on the reasonable royalty or fee which could have been due had a licence

for the use of the trade secret existed. Additionally, many national rules do not provide for

appropriate protection of the confidentiality of a trade secret where the trade secret holder

introduces a claim for alleged unlawful acquisition, use or disclosure of the trade secret by

a third party, thereby reducing the attractiveness of the existing measures and remedies and

weakening the protection offered.

(8) The differences in the legal protection of trade secrets provided for by the Member States

imply that trade secrets do not enjoy an equivalent level of protection throughout the

Union, thus leading to fragmentation of the internal market in this area and a weakening of

the overall deterrent effect of the relevant rules. The internal market is affected in so far as

such differences lower the incentives for businesses to undertake innovation-related

cross-border economic activity, including research cooperation or production cooperation

with partners, outsourcing or investment in other Member States, which depends on the use

of information that enjoys protection as trade secrets. Cross-border network research and

development, as well as innovation-related activities, including related production and

subsequent cross-border trade, are rendered less attractive and more difficult within the

Union, thus also resulting in Union-wide innovation-related inefficiencies.

PE-CONS 76/1/15 REV 1 6

# **EN**

(9) In addition, there is a higher risk for businesses in Member States with comparatively

lower levels of protection, due to the fact that trade secrets may be stolen or otherwise

unlawfully acquired more easily. This leads to inefficient allocation of capital to

growth-enhancing innovation within the internal market because of the higher expenditure

on protective measures to compensate for the insufficient legal protection in some

Member States. It also favours the activity of unfair competitors who, subsequent to the

unlawful acquisition of trade secrets, could spread goods resulting from such acquisition

across the internal market. Differences in legislative regimes also facilitate the importation

of goods from third countries into the Union through entry points with weaker protection,

when the design, production or marketing of those goods rely on stolen or otherwise

unlawfully acquired trade secrets. On the whole, such differences hinder the proper

functioning of the internal market.

(10) It is appropriate to provide for rules at Union level to approximate the laws of the

Member States so as to ensure that there is a sufficient and consistent level of civil redress

in the internal market in the event of unlawful acquisition, use or disclosure of a trade

secret. Those rules should be without prejudice to the possibility for Member States of

providing for more far-reaching protection against the unlawful acquisition, use or

disclosure of trade secrets, as long as the safeguards explicitly provided for in this

Directive for protecting the interests of other parties are respected.

PE-CONS 76/1/15 REV 1 7

# **EN**

(11) This Directive should not affect the application of Union or national rules that require the

disclosure of information, including trade secrets, to the public or to public authorities. Nor

should it affect the application of rules that allow public authorities to collect information

for the performance of their duties, or rules that allow or require any subsequent disclosure

by those public authorities of relevant information to the public. Such rules include, in

particular, rules on the disclosure by the Union’s institutions and bodies or national public

authorities of business-related information they hold pursuant to Regulation (EC)

No 1049/2001 of the European Parliament and of the Council **[1]**, Regulation (EC)

No 1367/2006 of the European Parliament and of the Council **[2]** and Directive 2003/4/EC of

the European Parliament and of the Council **[3]**, or pursuant to other rules on public access to

documents or on the transparency obligations of national public authorities.

(12) This Directive should not affect the right of social partners to enter into collective

agreements, where provided for under labour law, as regards any obligation not to disclose

a trade secret or to limit its use, and the consequences of a breach of such an obligation by

the party subject to it. This should be on the condition that any such collective agreement

does not restrict the exceptions laid down in this Directive when an application for

measures, procedures or remedies provided for in this Directive for alleged acquisition, use

or disclosure of a trade secret is to be dismissed.

**1** Regulation (EC) No 1049/2001 of the European Parliament and of the Council of
30 May 2001 regarding public access to European Parliament, Council and Commission
documents (OJ L 145, 31.5.2001, p. 43).
**2** Regulation (EC) No 1367/2006 of the European Parliament and of the Council of
6 September 2006 on the application of the provisions of the Aarhus Convention on Access
to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13).
**3** Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on
public access to environmental information and repealing Council Directive 90/313/EEC
(OJ L 41, 14.2.2003, p. 26).

PE-CONS 76/1/15 REV 1 8

# **EN**

(13) This Directive should not be understood as restricting the freedom of establishment, the

free movement of workers or the mobility of workers as provided for in Union law. Nor is

it intended to affect the possibility of concluding non-competition agreements between

employers and employees, in accordance with applicable law.

(14) It is important to establish a homogenous definition of a trade secret without restricting the

subject matter to be protected against misappropriation. Such definition should therefore be

constructed so as to cover know-how, business information and technological information

where there is both a legitimate interest in keeping them confidential and a legitimate

expectation that such confidentiality will be preserved. Furthermore, such know-how or

information should have a commercial value, whether actual or potential. Such know-how

or information should be considered to have a commercial value, for example, where its

unlawful acquisition, use or disclosure is likely to harm the interests of the person lawfully

controlling it, in that it undermines that person’s scientific and technical potential, business

or financial interests, strategic positions or ability to compete. The definition of trade secret

excludes trivial information and the experience and skills gained by employees in the

normal course of their employment, and also excludes information which is generally

known among, or is readily accessible to, persons within the circles that normally deal with

the kind of information in question.

(15) It is also important to identify the circumstances in which legal protection of trade secrets

is justified. For this reason, it is necessary to establish the conduct and practices which are

to be regarded as unlawful acquisition, use or disclosure of a trade secret.

PE-CONS 76/1/15 REV 1 9

# **EN**

(16) In the interest of innovation and to foster competition, the provisions of this Directive

should not create any exclusive right to know-how or information protected as trade

secrets. Thus, the independent discovery of the same know-how or information should

remain possible. Reverse engineering of a lawfully acquired product should be considered

as a lawful means of acquiring information, except when otherwise contractually agreed.

The freedom to enter into such contractual arrangements can, however, be limited by law.

(17) In some industry sectors, where creators and innovators cannot benefit from exclusive

rights and where innovation has traditionally relied upon trade secrets, products can

nowadays be easily reverse-engineered once in the market. In such cases, those creators

and innovators can be victims of practices such as parasitic copying or slavish imitations

that free-ride on their reputation and innovation efforts. Some national laws dealing with

unfair competition address those practices. While this Directive does not aim to reform or

harmonise the law on unfair competition in general, it would be appropriate that the

Commission carefully examine the need for Union action in that area.

PE-CONS 76/1/15 REV 1 10

# **EN**

(18) Furthermore, the acquisition, use or disclosure of trade secrets, whenever imposed or

permitted by law, should be treated as lawful for the purposes of this Directive. This

concerns, in particular, the acquisition and disclosure of trade secrets in the context of the

exercise of the rights of workers’ representatives to information, consultation and

participation in accordance with Union law and national laws and practices, and the

collective defence of the interests of workers and employers, including co-determination,

as well as the acquisition or disclosure of a trade secret in the context of statutory audits

performed in accordance with Union or national law. However, such treatment of the

acquisition of a trade secret as lawful should be without prejudice to any obligation of

confidentiality as regards the trade secret or any limitation as to its use that Union or

national law imposes on the recipient or acquirer of the information. In particular, this

Directive should not release public authorities from the confidentiality obligations to which

they are subject in respect of information passed on by trade secret holders, irrespective of

whether those obligations are laid down in Union or national law. Such confidentiality

obligations include, inter alia, the obligations in respect of information forwarded to

contracting authorities in the context of procurement procedures, as laid down, for

example, in Directive 2014/23/EU of the European Parliament and of the Council **[1]**,

Directive 2014/24/EU of the European Parliament and of the Council **[2]** and

Directive 2014/25/EU of the European Parliament and of the Council **[3]** .

**1** Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014
on the award of concession contracts (OJ L 94, 28.3.2014, p. 1).
**2** Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014
on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).
**3** Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014
on procurement by entities operating in the water, energy, transport and postal services
sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).

PE-CONS 76/1/15 REV 1 11

# **EN**

(19) While this Directive provides for measures and remedies which can consist of preventing

the disclosure of information in order to protect the confidentiality of trade secrets, it is

essential that the exercise of the right to freedom of expression and information which

encompasses media freedom and pluralism, as reflected in Article 11 of the Charter of

Fundamental Rights of the European Union (‘the Charter’), not be restricted, in particular

with regard to investigative journalism and the protection of journalistic sources.

(20) The measures, procedures and remedies provided for in this Directive should not restrict

whistleblowing activity. Therefore, the protection of trade secrets should not extend to

cases in which disclosure of a trade secret serves the public interest, insofar as directly

relevant misconduct, wrongdoing or illegal activity is revealed. This should not be seen as

preventing the competent judicial authorities from allowing an exception to the application

of measures, procedures and remedies in a case where the respondent had every reason to

believe in good faith that his or her conduct satisfied the appropriate criteria set out in this

Directive.

PE-CONS 76/1/15 REV 1 12

# **EN**

(21) In line with the principle of proportionality, measures, procedures and remedies intended to

protect trade secrets should be tailored to meet the objective of a smooth-functioning

internal market for research and innovation, in particular by deterring the unlawful

acquisition, use and disclosure of a trade secret. Such tailoring of measures, procedures and

remedies should not jeopardise or undermine fundamental rights and freedoms or the

public interest, such as public safety, consumer protection, public health and environmental

protection, and should be without prejudice to the mobility of workers. In this respect, the

measures, procedures and remedies provided for in this Directive are aimed at ensuring

that competent judicial authorities take into account factors such as the value of a trade

secret, the seriousness of the conduct resulting in the unlawful acquisition, use or

disclosure of the trade secret and the impact of such conduct. It should also be ensured that

the competent judicial authorities have the discretion to weigh up the interests of the

parties to the legal proceedings, as well as the interests of third parties including, where

appropriate, consumers.

(22) The smooth-functioning of the internal market would be undermined if the measures,

procedures and remedies provided for were used to pursue illegitimate intents incompatible

with the objectives of this Directive. Therefore, it is important to empower judicial

authorities to adopt appropriate measures with regard to applicants who act abusively or in

bad faith and submit manifestly unfounded applications with, for example, the aim of

unfairly delaying or restricting the respondent’s access to the market or otherwise

intimidating or harassing the respondent.

PE-CONS 76/1/15 REV 1 13

# **EN**

(23) In the interest of legal certainty, and considering that legitimate trade secret holders are

expected to exercise a duty of care as regards the preservation of the confidentiality of their

valuable trade secrets and the monitoring of their use, it is appropriate to restrict

substantive claims or the possibility of initiating actions for the protection of trade secrets

to a limited period. National law should also specify, in a clear and unambiguous manner,

from when that period is to begin to run and under what circumstances that period is to be

interrupted or suspended.

(24) The prospect of losing the confidentiality of a trade secret in the course of legal

proceedings often deters legitimate trade secret holders from instituting legal proceedings

to defend their trade secrets, thus jeopardising the effectiveness of the measures,

procedures and remedies provided for. For this reason, it is necessary to establish, subject

to appropriate safeguards ensuring the right to an effective remedy and to a fair trial,

specific requirements aimed at protecting the confidentiality of the litigated trade secret in

the course of legal proceedings instituted for its defence. Such protection should remain in

force after the legal proceedings have ended and for as long as the information constituting

the trade secret is not in the public domain.

PE-CONS 76/1/15 REV 1 14

# **EN**

(25) Such requirements should include, as a minimum, the possibility of restricting the circle of

persons entitled to have access to evidence or hearings, bearing in mind that all such

persons should be subject to the confidentiality requirements set out in this Directive, and

of publishing only the non-confidential elements of judicial decisions. In this context,

considering that assessing the nature of the information which is the subject of a dispute is

one of the main purposes of legal proceedings, it is particularly important to ensure both

the effective protection of the confidentiality of trade secrets and respect for the right of the

parties to those proceedings to an effective remedy and to a fair trial. The restricted circle

of persons should therefore consist of at least one natural person from each of the parties as

well as the respective lawyers of the parties and, where applicable, other representatives

appropriately qualified in accordance with national law in order to defend, represent or

serve the interests of a party in legal proceedings covered by this Directive, who should all

have full access to such evidence or hearings. In the event that one of the parties is a legal

person, that party should be able to propose a natural person or natural persons who ought

to form part of that circle of persons so as to ensure proper representation of that legal

person, subject to appropriate judicial control to prevent the objective of the restriction of

access to evidence and hearings from being undermined. Such safeguards should not be

understood as requiring the parties to be represented by a lawyer or another representative

in the course of legal proceedings where such representation is not required by national

law. Nor should they be understood as restricting the competence of the courts to decide, in

conformity with the applicable rules and practices of the Member State concerned, whether

and to what extent relevant court officials should also have full access to evidence and

hearings for the exercise of their duties.

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# **EN**

(26) The unlawful acquisition, use or disclosure of a trade secret by a third party could have

devastating effects on the legitimate trade secret holder, as once publicly disclosed, it

would be impossible for that holder to revert to the situation prior to the loss of the trade

secret. As a result, it is essential to provide for fast, effective and accessible provisional

measures for the immediate termination of the unlawful acquisition, use or disclosure of a

trade secret, including where it is used for the provision of services. It is essential that such

relief be available without having to await a decision on the merits of the case, while

having due respect for the right of defence and the principle of proportionality, and having

regard to the characteristics of the case. In certain instances, it should be possible to permit

the alleged infringer, subject to the lodging of one or more guarantees, to continue to use

the trade secret, in particular where there is little risk that it will enter the public domain. It

should also be possible to require guarantees of a level sufficient to cover the costs and the

injury caused to the respondent by an unjustified application, particularly where any delay

would cause irreparable harm to the legitimate trade secret holder.

(27) For the same reasons, it is also important to provide for definitive measures to prevent

unlawful use or disclosure of a trade secret, including where it is used for the provision of

services. For such measures to be effective and proportionate, their duration, when

circumstances require a limitation in time, should be sufficient to eliminate any

commercial advantage which the third party could have derived from the unlawful

acquisition, use or disclosure of the trade secret. In any event, no measure of this type

should be enforceable if the information originally covered by the trade secret is in the

public domain for reasons that cannot be attributed to the respondent.

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# **EN**

(28) It is possible that a trade secret could be used unlawfully to design, produce or market

goods, or components thereof, which could be spread across the internal market, thus

affecting the commercial interests of the trade secret holder and the functioning of the

internal market. In such cases, and when the trade secret in question has a significant

impact on the quality, value or price of the goods resulting from that unlawful use or on

reducing the cost of, facilitating or speeding up their production or marketing processes, it

is important to empower judicial authorities to order effective and appropriate measures

with a view to ensuring that those goods are not put on the market or are withdrawn from

it. Considering the global nature of trade, it is also necessary that such measures include

the prohibition of the importation of those goods into the Union or their storage for the

purposes of offering or placing them on the market. Having regard to the principle of

proportionality, corrective measures should not necessarily entail the destruction of the

goods if other viable options are present, such as depriving the good of its infringing

quality or the disposal of the goods outside the market, for example, by means of donations

to charitable organisations.

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# **EN**

(29) A person could have originally acquired a trade secret in good faith, but only become

aware at a later stage, including upon notice served by the original trade secret holder, that

that person’s knowledge of the trade secret in question derived from sources using or

disclosing the relevant trade secret in an unlawful manner. In order to avoid, under those

circumstances, the corrective measures or injunctions provided for causing

disproportionate harm to that person, Member States should provide for the possibility, in

appropriate cases, of pecuniary compensation being awarded to the injured party as an

alternative measure. Such compensation should not, however, exceed the amount of

royalties or fees which would have been due had that person obtained authorisation to use

the trade secret in question, for the period of time for which use of the trade secret could

have been prevented by the original trade secret holder. Nevertheless, where the unlawful

use of the trade secret would constitute an infringement of law other than that provided for

in this Directive or would be likely to harm consumers, such unlawful use should not be

allowed.

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# **EN**

(30) In order to avoid a person who knowingly, or with reasonable grounds for knowing,

unlawfully acquires, uses or discloses a trade secret being able to benefit from such

conduct, and to ensure that the injured trade secret holder, to the extent possible, is placed

in the position in which he, she or it would have been had that conduct not taken place, it is

necessary to provide for adequate compensation for the prejudice suffered as a result of

that unlawful conduct. The amount of damages awarded to the injured trade secret holder

should take account of all appropriate factors, such as loss of earnings incurred by the trade

secret holder or unfair profits made by the infringer and, where appropriate, any moral

prejudice caused to the trade secret holder. As an alternative, for example where,

considering the intangible nature of trade secrets, it would be difficult to determine the

amount of the actual prejudice suffered, the amount of the damages might be derived from

elements such as the royalties or fees which would have been due had the infringer

requested authorisation to use the trade secret in question. The aim of that alternative

method is not to introduce an obligation to provide for punitive damages, but to ensure

compensation based on an objective criterion while taking account of the expenses

incurred by the trade secret holder, such as the costs of identification and research. This

Directive should not prevent Member States from providing in their national law that the

liability for damages of employees is restricted in cases where they have acted without

intent.

(31) As a supplementary deterrent to future infringers and to contribute to the awareness of the

public at large, it is useful to publicise decisions, including, where appropriate, through

prominent advertising, in cases concerning the unlawful acquisition, use or disclosure of

trade secrets, on the condition that such publication does not result in the disclosure of the

trade secret or disproportionally affect the privacy and reputation of a natural person.

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# **EN**

(32) The effectiveness of the measures, procedures and remedies available to trade secret

holders could be undermined in the event of non-compliance with the relevant decisions

adopted by the competent judicial authorities. For this reason, it is necessary to ensure that

those authorities enjoy the appropriate powers of sanction.

(33) In order to facilitate the uniform application of the measures, procedures and remedies

provided for in this Directive, it is appropriate to provide for systems of cooperation and

the exchange of information as between Member States on the one hand, and between the

Member States and the Commission on the other, in particular by creating a network of

correspondents designated by Member States. In addition, in order to review whether those

measures fulfil their intended objective, the Commission, assisted, as appropriate, by the

European Union Intellectual Property Office, should examine the application of this

Directive and the effectiveness of the national measures taken.

(34) This Directive respects the fundamental rights and observes the principles recognised in

particular by the Charter, notably the right to respect for private and family life, the right to

protection of personal data, the freedom of expression and information, the freedom to

choose an occupation and right to engage in work, the freedom to conduct a business, the

right to property, the right to good administration, and in particular the access to files,

while respecting business secrecy, the right to an effective remedy and to a fair trial and

the right of defence.

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# **EN**

(35) It is important that the rights to respect for private and family life and to protection of

personal data of any person whose personal data may be processed by the trade secret

holder when taking steps to protect a trade secret, or of any person involved in legal

proceedings concerning the unlawful acquisition, use or disclosure of trade secrets under

this Directive, and whose personal data are processed, be respected. Directive 95/46/EC of

the European Parliament and of the Council **[1]** governs the processing of personal data

carried out in the Member States in the context of this Directive and under the supervision

of the Member States’ competent authorities, in particular the public independent

authorities designated by the Member States. Thus, this Directive should not affect the

rights and obligations laid down in Directive 95/46/EC, in particular the rights of the data

subject to access his or her personal data being processed and to obtain the rectification,

erasure or blocking of the data where it is incomplete or inaccurate and, where appropriate,

the obligation to process sensitive data in accordance with Article 8(5) of

Directive 95/46/EC.

(36) Since the objective of this Directive, namely to achieve a smooth-functioning internal

market by means of the establishment of a sufficient and comparable level of redress

across the internal market in the event of the unlawful acquisition, use or disclosure of a

trade secret, cannot be sufficiently achieved by Member States but can rather, by reason of

its scale and effects, be better achieved at Union level, the Union may adopt measures in

accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on

European Union. In accordance with the principle of proportionality, as set out in that

Article, this Directive does not go beyond what is necessary in order to achieve that

objective.

**1** Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on
the protection of individuals with regard to the processing of personal data and on the free
movement of such data (OJ L 281, 23.11.1995, p. 31).

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(37) This Directive does not aim to establish harmonised rules for judicial cooperation,

jurisdiction, the recognition and enforcement of judgments in civil and commercial

matters, or deal with applicable law. Other Union instruments which govern such matters

in general terms should, in principle, remain equally applicable to the field covered by this

Directive.

(38) This Directive should not affect the application of competition law rules, in particular

Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’).

The measures, procedures and remedies provided for in this Directive should not be used

to restrict unduly competition in a manner contrary to the TFEU.

(39) This Directive should not affect the application of any other relevant law in other areas,

including intellectual property rights and the law of contract. However, where the scope of

application of Directive 2004/48/EC of the European Parliament and of the Council **[1]** and

the scope of this Directive overlap, this Directive takes precedence as _lex specialis_ .

(40) The European Data Protection Supervisor was consulted in accordance with Article 28(2)

of Regulation (EC) No 45/2001 of the European Parliament and of the Council **[2]** and

delivered an opinion on 12 March 2014,

HAVE ADOPTED THIS DIRECTIVE:

**1** Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on
the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45).
**2** Regulation (EC) No 45/2001 of the European Parliament and of the Council of
18 December 2000 on the protection of individuals with regard to the processing of personal
data by the Community institutions and bodies and on the free movement of such data
(OJ L 8, 12.1.2001, p. 1).

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## **Chapter I** **Subject matter and scope**

_Article 1_

_Subject matter and scope_

1. This Directive lays down rules on the protection against the unlawful acquisition, use and

disclosure of trade secrets.

Member States may, in compliance with the provisions of the TFEU, provide for more

far-reaching protection against the unlawful acquisition, use or disclosure of trade secrets

than that required by this Directive, provided that compliance with Articles 3, 5, 6,

Article 7(1), Article 8, the second subparagraph of Article 9(1), Article 9(3) and (4),

Article 10(2), Articles 11, 13 and Article 15(3) is ensured.

2. This Directive shall not affect:

(a) the exercise of the right to freedom of expression and information as set out in the

Charter, including respect for the freedom and pluralism of the media;

(b) the application of Union or national rules requiring trade secret holders to disclose,

for reasons of public interest, information, including trade secrets, to the public or to

administrative or judicial authorities for the performance of the duties of those

authorities;

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(c) the application of Union or national rules requiring or allowing Union institutions

and bodies or national public authorities to disclose information submitted by

businesses which those institutions, bodies or authorities hold pursuant to, and in

compliance with, the obligations and prerogatives set out in Union or national law;

(d) the autonomy of social partners and their right to enter into collective agreements, in

accordance with Union law and national laws and practices.

3. Nothing in this Directive shall be understood to offer any ground for restricting the

mobility of employees. In particular, in relation to the exercise of such mobility, this

Directive shall not offer any ground for:

(a) limiting employees’ use of information that does not constitute a trade secret as

defined in point (1) of Article 2;

(b) limiting employees’ use of experience and skills honestly acquired in the normal

course of their employment;

(c) imposing any additional restrictions on employees in their employment contracts

other than restrictions imposed in accordance with Union or national law.

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_Article 2_

_Definitions_

For the purposes of this Directive, the following definitions apply:

(1) ‘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;

(2) ‘trade secret holder’ means any natural or legal person lawfully controlling a trade secret;

(3) ‘infringer’ means any natural or legal person who has unlawfully acquired, used or

disclosed a trade secret;

(4) ‘infringing goods’ means goods, the design, characteristics, functioning, production

process or marketing of which significantly benefits from trade secrets unlawfully

acquired, used or disclosed.

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## **Chapter II** **Acquisition, use and disclosure of trade secrets**

_Article 3_

_Lawful acquisition, use and disclosure of trade secrets_

1. The acquisition of a trade secret shall be considered lawful when the trade secret is

obtained by any of the following means:

(a) independent discovery or creation;

(b) observation, study, disassembly or testing of a product or object that has been made

available to the public or that is lawfully in the possession of the acquirer of the

information who is free from any legally valid duty to limit the acquisition of the

trade secret;

(c) exercise of the right of workers or workers' representatives to information and

consultation in accordance with Union law and national laws and practices;

(d) any other practice which, under the circumstances, is in conformity with honest

commercial practices.

2. The acquisition, use or disclosure of a trade secret shall be considered lawful to the extent

that such acquisition, use or disclosure is required or allowed by Union or national law.

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_Article 4_

_Unlawful acquisition, use and disclosure of trade secrets_

1. 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.

2. The acquisition of a trade secret without the consent of the trade secret holder shall be

considered unlawful, whenever carried out by:

(a) unauthorised access to, appropriation of, or copying of any documents, objects,

materials, substances or electronic files, lawfully under the control of the trade secret

holder, containing the trade secret or from which the trade secret can be deduced;

(b) any other conduct which, under the circumstances, is considered contrary to honest

commercial practices.

3. The use or disclosure of a trade secret shall be considered unlawful whenever carried out,

without the consent of the trade secret holder, by a person who is found to meet any of the

following conditions:

(a) having acquired the trade secret unlawfully;

(b) being in breach of a confidentiality agreement or any other duty not to disclose the

trade secret;

(c) being in breach of a contractual or any other duty to limit the use of the trade secret.

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# **EN**

4. The acquisition, use or disclosure of a trade secret shall also be considered unlawful

whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under

the circumstances, to have known that the trade secret had been obtained directly or

indirectly from another person who was using or disclosing the trade secret unlawfully

within the meaning of paragraph 3.

5. The production, offering or placing on the market of infringing goods, or the importation,

export or storage of infringing goods for those purposes, shall also be considered an

unlawful use of a trade secret where the person carrying out such activities knew, or ought,

under the circumstances, to have known that the trade secret was used unlawfully within

the meaning of paragraph 3.

_Article 5_

_Exceptions_

Member States shall ensure that an application for the measures, procedures and remedies provided

for in this Directive is dismissed where the alleged acquisition, use or disclosure of the trade secret

was carried out in any of the following cases:

(a) for exercising the right to freedom of expression and information as set out in the Charter,

including respect for the freedom and pluralism of the media;

(b) for revealing misconduct, wrongdoing or illegal activity, provided that the respondent

acted for the purpose of protecting the general public interest;

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(c) disclosure by workers to their representatives as part of the legitimate exercise by those

representatives of their functions in accordance with Union or national law, provided that

such disclosure was necessary for that exercise;

(d) for the purpose of protecting a legitimate interest recognised by Union or national law.

## **Chapter III** **Measures, procedures and remedies**

### **S ECTION 1** **G ENERAL PROVISIONS**

_Article 6_

_General obligation_

1. Member States shall provide for the measures, procedures and remedies necessary to

ensure the availability of civil redress against the unlawful acquisition, use and disclosure

of trade secrets.

2. The measures, procedures and remedies referred to in paragraph 1 shall:

(a) be fair and equitable;

(b) not be unnecessarily complicated or costly, or entail unreasonable time-limits or

unwarranted delays; and

(c) be effective and dissuasive.

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# **EN**

_Article 7_

_Proportionality and abuse of process_

1. The measures, procedures and remedies provided for in this Directive shall be applied in a

manner that:

(a) is proportionate;

(b) avoids the creation of barriers to legitimate trade in the internal market; and

(c) provides for safeguards against their abuse.

2. Member States shall ensure that competent judicial authorities may, upon the request of the

respondent, apply appropriate measures as provided for in national law, where an

application concerning the unlawful acquisition, use or disclosure of a trade secret is

manifestly unfounded and the applicant is found to have initiated the legal proceedings

abusively or in bad faith. Such measures may, as appropriate, include awarding damages to

the respondent, imposing sanctions on the applicant or ordering the dissemination of

information concerning a decision as referred to in Article 15.

Member States may provide that measures as referred to in the first subparagraph are dealt

with in separate legal proceedings.

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_Article 8_

_Limitation period_

1. Member States shall, in accordance with this Article, lay down rules on the limitation

periods applicable to substantive claims and actions for the application of the measures,

procedures and remedies provided for in this Directive.

The rules referred to in the first subparagraph shall determine when the limitation period

begins to run, the duration of the limitation period and the circumstances under which the

limitation period is interrupted or suspended.

2. The duration of the limitation period shall not exceed six years.

_Article 9_

_Preservation of confidentiality of trade secrets in the course of legal proceedings_

1. Member States shall ensure that the parties, their lawyers or other representatives, court

officials, witnesses, experts and any other person participating in legal proceedings relating

to the unlawful acquisition, use or disclosure of a trade secret, or who has access to

documents which form part of those legal proceedings, are not permitted to use or disclose

any trade secret or alleged trade secret which the competent judicial authorities have, in

response to a duly reasoned application by an interested party, identified as confidential

and of which they have become aware as a result of such participation or access. In that

regard, Member States may also allow competent judicial authorities to act on their own

initiative.

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The obligation referred to in the first subparagraph shall remain in force after the legal

proceedings have ended. However, such obligation shall cease to exist in any of the

following circumstances:

(a) where the alleged trade secret is found, by a final decision, not to meet the

requirements set out in point (1) of Article 2; or

(b) where over time, the information in question becomes generally known among or

readily accessible to persons within the circles that normally deal with that kind of

information.

2. Member States shall also ensure that the competent judicial authorities may, on a duly

reasoned application by a party, take specific measures necessary to preserve the

confidentiality of any trade secret or alleged trade secret used or referred to in the course of

legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret.

Member States may also allow competent judicial authorities to take such measures on

their own initiative.

The measures referred to in the first subparagraph shall at least include the possibility:

(a) of restricting access to any document containing trade secrets or alleged trade secrets

submitted by the parties or third parties, in whole or in part, to a limited number of

persons;

(b) of restricting access to hearings, when trade secrets or alleged trade secrets may be

disclosed, and the corresponding record or transcript of those hearings to a limited

number of persons;

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(c) of making available to any person other than those comprised in the limited number

of persons referred to in points (a) and (b) a non-confidential version of any judicial

decision, in which the passages containing trade secrets have been removed or

redacted.

The number of persons referred to in points (a) and (b) of the second subparagraph shall be

no greater than necessary in order to ensure compliance with the right of the parties to the

legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one

natural person from each party and the respective lawyers or other representatives of those

parties to the legal proceedings.

3. When deciding on the measures referred to in paragraph 2 and assessing their

proportionality, the competent judicial authorities shall take into account the need to ensure

the right to an effective remedy and to a fair trial, the legitimate interests of the parties and,

where appropriate, of third parties, and any potential harm for either of the parties, and,

where appropriate, for third parties, resulting from the granting or rejection of such

measures.

4. Any processing of personal data pursuant to paragraphs 1, 2 or 3 shall be carried out in

accordance with Directive 95/46/EC.

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# **EN**

### **S ECTION 2** **P ROVISIONAL AND PRECAUTIONARY MEASURES**

_Article 10_

_Provisional and precautionary measures_

1. Member States shall ensure that the competent judicial authorities may, at the request of

the trade secret holder, order any of the following provisional and precautionary measures

against the alleged infringer:

(a) the cessation of or, as the case may be, the prohibition of the use or disclosure of the

trade secret on a provisional basis;

(b) the prohibition of the production, offering, placing on the market or use of infringing

goods, or the importation, export or storage of infringing goods for those purposes;

(c) the seizure or delivery up of the suspected infringing goods, including imported

goods, so as to prevent their entry into, or circulation on, the market.

2. Member States shall ensure that the judicial authorities may, as an alternative to the

measures referred to in paragraph 1, make the continuation of the alleged unlawful use of a

trade secret subject to the lodging of guarantees intended to ensure the compensation of the

trade secret holder. Disclosure of a trade secret in return for the lodging of guarantees shall

not be allowed.

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_Article 11_

_Conditions of application and safeguards_

1. Member States shall ensure that the competent judicial authorities have, in respect of the

measures referred to in Article 10, the authority to require the applicant to provide

evidence that may reasonably be considered available in order to satisfy themselves with a

sufficient degree of certainty that:

(a) a trade secret exists;

(b) the applicant is the trade secret holder; and

(c) the trade secret has been acquired unlawfully, is being unlawfully used or disclosed,

or unlawful acquisition, use or disclosure of the trade secret is imminent.

2. Member States shall ensure that in deciding on the granting or rejection of the application

and assessing its proportionality, the competent judicial authorities shall be required to take

into account the specific circumstances of the case, including, where appropriate:

(a) the value and other specific features of the trade secret;

(b) the measures taken to protect the trade secret;

(c) the conduct of the respondent in acquiring, using or disclosing the trade secret;

(d) the impact of the unlawful use or disclosure of the trade secret;

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(e) the legitimate interests of the parties and the impact which the granting or rejection

of the measures could have on the parties;

(f) the legitimate interests of third parties;

(g) the public interest; and

(h) the safeguard of fundamental rights.

3. Member States shall ensure that the measures referred to in Article 10 are revoked or

otherwise cease to have effect, upon the request of the respondent, if:

(a) the applicant does not institute legal proceedings leading to a decision on the merits

of the case before the competent judicial authority, within a reasonable period

determined by the judicial authority ordering the measures where the law of a

Member State so permits or, in the absence of such determination, within a period

not exceeding 20 working days or 31 calendar days, whichever is the longer; or

(b) the information in question no longer meets the requirements of point (1) of

Article 2, for reasons that cannot be attributed to the respondent.

4. Member States shall ensure that the competent judicial authorities may make the measures

referred to in Article 10 subject to the lodging by the applicant of adequate security or an

equivalent assurance intended to ensure compensation for any prejudice suffered by the

respondent and, where appropriate, by any other person affected by the measures.

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# **EN**

5. Where the measures referred to in Article 10 are revoked on the basis of point (a) of

paragraph 3 of this Article, where they lapse due to any act or omission by the applicant, or

where it is subsequently found that there has been no unlawful acquisition, use or

disclosure of the trade secret or threat of such conduct, the competent judicial authorities

shall have the authority to order the applicant, upon the request of the respondent or of an

injured third party, to provide the respondent, or the injured third party, appropriate

compensation for any injury caused by those measures.

Member States may provide that the request for compensation referred to in the first

subparagraph is dealt with in separate legal proceedings.

### **S ECTION 3** **M EASURES RESULTING FROM A DECISION**

**ON THE MERITS OF THE CASE**

_Article 12_

_Injunctions and corrective measures_

1. Member States shall ensure that, where a judicial decision taken on the merits of the case

finds that there has been unlawful acquisition, use or disclosure of a trade secret, the

competent judicial authorities may, at the request of the applicant, order one or more of the

following measures against the infringer:

(a) the cessation of or, as the case may be, the prohibition of the use or disclosure of the

trade secret;

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# **EN**

(b) the prohibition of the production, offering, placing on the market or use of infringing

goods, or the importation, export or storage of infringing goods for those purposes;

(c) the adoption of the appropriate corrective measures with regard to the infringing

goods;

(d) the destruction of all or part of any document, object, material, substance or

electronic file containing or embodying the trade secret or, where appropriate, the

delivery up to the applicant of all or part of those documents, objects, materials,

substances or electronic files.

2. The corrective measures referred to in point (c) of paragraph 1 shall include:

(a) recall of the infringing goods from the market;

(b) depriving the infringing goods of their infringing quality;

(c) destruction of the infringing goods or, where appropriate, their withdrawal from the

market, provided that the withdrawal does not undermine the protection of the trade

secret in question.

3. Member States may provide that, when ordering the withdrawal of the infringing goods

from the market, their competent judicial authorities may order, at the request of the trade

secret holder, that the goods be delivered up to the holder or to charitable organisations.

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# **EN**

4. The competent judicial authorities shall order that the measures referred to in points (c) and

(d) of paragraph 1 be carried out at the expense of the infringer, unless there are particular

reasons for not doing so. Those measures shall be without prejudice to any damages that

may be due to the trade secret holder by reason of the unlawful acquisition, use or

disclosure of the trade secret.

_Article 13_

_Conditions of application, safeguards and alternative measures_

1. Member States shall ensure that, in considering an application for the adoption of the

injunctions and corrective measures provided for in Article 12 and assessing their

proportionality, the competent judicial authorities shall be required to take into account the

specific circumstances of the case, including, where appropriate:

(a) the value or other specific features of the trade secret;

(b) the measures taken to protect the trade secret;

(c) the conduct of the infringer in acquiring, using or disclosing the trade secret;

(d) the impact of the unlawful use or disclosure of the trade secret;

(e) the legitimate interests of the parties and the impact which the granting or rejection

of the measures could have on the parties;

(f) the legitimate interests of third parties;

(g) the public interest; and

(h) the safeguard of fundamental rights.

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# **EN**

Where the competent judicial authorities limit the duration of the measures referred to in

points (a) and (b) of Article 12(1), such duration shall be sufficient to eliminate any

commercial or economic advantage that the infringer could have derived from the unlawful

acquisition, use or disclosure of the trade secret.

2. Member States shall ensure that the measures referred to in points (a) and (b) of

Article 12(1) are revoked or otherwise cease to have effect, upon the request of the

respondent, if the information in question no longer meets the requirements of point (1) of

Article 2 for reasons that cannot be attributed directly or indirectly to the respondent.

3. Member States shall provide that, at the request of the person liable to be subject to the

measures provided for in Article 12, the competent judicial authority may order pecuniary

compensation to be paid to the injured party instead of applying those measures if all the

following conditions are met:

(a) the person concerned at the time of use or disclosure neither knew nor ought, under

the circumstances, to have known that the trade secret was obtained from another

person who was using or disclosing the trade secret unlawfully;

(b) execution of the measures in question would cause that person disproportionate

harm; and

(c) pecuniary compensation to the injured party appears reasonably satisfactory.

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# **EN**

Where pecuniary compensation is ordered instead of the measures referred to in points (a)

and (b) of Article 12(1), it shall not exceed 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 14_

_Damages_

1. Member States shall ensure that the competent judicial authorities, upon the request of the

injured party, order an infringer who knew or ought to have known that he, she or it was

engaging in unlawful acquisition, use or disclosure of a trade secret, to pay the trade secret

holder damages appropriate to the actual prejudice suffered as a result of the unlawful

acquisition, use or disclosure of the trade secret.

Member States may limit the liability for damages of employees towards their employers

for the unlawful acquisition, use or disclosure of a trade secret of the employer where they

act without intent.

2. When setting the damages referred to in paragraph 1, the competent judicial authorities

shall take into account all appropriate factors, such as the negative economic

consequences, including lost profits, which the injured party has suffered, any unfair

profits made by the infringer and, in appropriate cases, elements other than economic

factors, such as the moral prejudice caused to the trade secret holder by the unlawful

acquisition, use or disclosure of the trade secret.

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Alternatively, the competent judicial authorities may, in appropriate cases, set the damages

as a lump sum on the basis of elements such as, at a minimum, the amount of royalties or

fees which would have been due had the infringer requested authorisation to use the trade

secret in question.

_Article 15_

_Publication of judicial decisions_

1. Member States shall ensure that, in legal proceedings instituted for the unlawful

acquisition, use or disclosure of a trade secret, the competent judicial authorities may

order, at the request of the applicant and at the expense of the infringer, appropriate

measures for the dissemination of the information concerning the decision, including

publishing it in full or in part.

2. Any measure referred to in paragraph 1 of this Article shall preserve the confidentiality of

trade secrets as provided for in Article 9.

3. In deciding whether to order a measure referred to in paragraph 1 and when assessing its

proportionality, the competent judicial authorities shall take into account, where

appropriate, the value of the trade secret, the conduct of the infringer in acquiring, using or

disclosing the trade secret, the impact of the unlawful use or disclosure of the trade secret,

and the likelihood of further unlawful use or disclosure of the trade secret by the infringer.

The competent judicial authorities shall also take into account whether the information on

the infringer would be such as to allow a natural person to be identified and, if so, whether

publication of that information would be justified, in particular in the light of the possible

harm that such measure may cause to the privacy and reputation of the infringer.

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# **EN**

## **Chapter IV** **Sanctions, reporting and final provisions**

_Article 16_

_Sanctions for non-compliance with this Directive_

Member States shall ensure that the competent judicial authorities may impose sanctions on any

person who fails or refuses to comply with any measure adopted pursuant to Articles 9, 10 and 12.

The sanctions provided for shall include the possibility of imposing recurring penalty payments in

the event of non-compliance with a measure adopted pursuant to Articles 10 and 12.

The sanctions provided for shall be effective, proportionate and dissuasive.

_Article 17_

_Exchange of information and correspondents_

For the purpose of promoting cooperation, including the exchange of information, among

Member States and between Member States and the Commission, each Member State shall

designate one or more national correspondents for any question relating to the implementation of

the measures provided for by this Directive. It shall communicate the details of the national

correspondent or correspondents to the other Member States and the Commission.

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# **EN**

_Article 18_

_Reports_

1. By … [five years after the date of adoption of this Directive], the European Union

Intellectual Property Office, in the context of the activities of the European Observatory on

Infringements of Intellectual Property Rights, shall prepare an initial report on the

litigation trends regarding the unlawful acquisition, use or disclosure of trade secrets

pursuant to the application of this Directive.

2. By … [six years after the date of adoption of this Directive], the Commission shall draw up

an intermediate report on the application of this Directive, and shall submit it to the

European Parliament and to the Council. That report shall take due account of the report

referred to in paragraph 1.

The intermediate report shall examine, in particular, the possible effects of the application

of this Directive on research and innovation, the mobility of employees and on the exercise

of the right to freedom of expression and information.

3. By … [10 years after the date of adoption of this Directive], the Commission shall carry

out an evaluation of the impact of this Directive and submit a report to the

European Parliament and to the Council.

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# **EN**

_Article 19_

_Transposition_

1. Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by … [24 months after the date of adoption of this

Directive]. They shall immediately communicate the text of those measures to the

Commission.

When Member States adopt those measures, they shall contain a reference to this Directive

or be accompanied by such a reference on the occasion of their official publication.

Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of

national law which they adopt in the field covered by this Directive.

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_Article 20_

_Entry into force_

This Directive shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

_Article 21_

_Addressees_

This Directive is addressed to the Member States.

Done at Strasbourg,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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# **EN**