The European Commission is currently working on a draft directive to achieve improved protection of unpublished know-how and business information against any unlawful access, use and publication.

This concerns a harmonisation directive designed to ensure that the same minimum protection framework is available in all EU countries. Although the obligation to provide adequate protection for unpublished information is hardly new—for example, see Article 39 of the TRIPS Convention of 1994—it cannot be denied that major differences exist in the manner in which legal actions can be taken in different EU countries against the theft and use of trade secrets (that are not protected by proprietary rights).

The new directive is expected to come into force by the end of 2015.

The version currently available suggests that the concept ‘trade secret’ will be interpreted in a very broad, non-exhaustive manner, which means that in principle, any type of unpublished information that is not readily accessible, can be granted protection.

Member States will be obliged to create a legal framework that provides sufficient means to act against the illegal access, use and publication of trade secrets. The arsenal of potential claims is varied, since the draft directive refers to provisional and precautionary measures, prohibitory injunctions and opportunity to obtain damages. In addition, there is a provision for ‘corrective measures’, including the recall or destruction of infringing goods, and the surrender of carriers containing the information concerned.

One thorny issue is still the manner in which the general know-how gained by employees, and which they carry to their next employer, is dealt with. The current version of the draft directive does not clarify how the national court will need to make a distinction between a prohibited disclosure of trade secrets and the application of general know-how. Insofar as it is not included in the final text, it can be expected that the courts will fall back on existing case law in relation to the application of Article 17(3) of the Employment Contract Act and in relation to (dis)honest market practices.

Portelio will be pleased to provide more detailed information when the approved directive is published and we remain at your disposal should you have any questions in the meantime.



Timothy Van de Gehuchte
Sander Vanderheyde

Portelio Law Firm