We have previously posted on the EU negotiations in December 2015 regarding the new EU Trade Secrets Directive.
The new Directive was approved by the European Parliament in April 2016 and was formally unanimously adopted by the Council last Friday 27 May 2016. See here for the Council's press release.
Currently EU countries have a significant degree of autonomy as to what information is protected and how it may be enforced. This means that the legal regimes vary enormously across the EU and businesses often find it difficult to understand and access the systems of other Member States. Overall, enforcing trade secrets across the EU can be expensive and difficult to coordinate. The Directive therefore harmonises the definition of trade secrets across the EU and defines what constitutes lawful and unlawful acquisition of trade secrets. It includes a range of remedies for trade secret misappropriation and requires Member States to put in place measures to preserve the confidentiality of a trade secret during court proceedings including, as a minimum, through setting up confidentiality clubs.
Once the Directive has been published in the Official Journal of the EU and it comes into force (the 20th day following the OJ publication), Member States will have two years to implement the Directive (until mid-2018) into national laws. There are still some questions as to the extent to which the various laws that protect trade secrets and confidential information in the EU will be harmonised. In particular it is currently unclear whether the UK "law of confidential information" will run in parallel with the rights conferred under the Trade Secrets Directive, or whether the UK courts may give precedence to EU law thereby narrowing the protection currently afforded in England. We shall continue to post on these issues as the implementation process progresses.
For a more detailed review of the proposed Directive, please see our previous publication.
Trade secrets are growing in importance and top of the reform agenda at the moment. President Obama signed the US Defend Trade Secrets Act on 11 May 2016. This provides harmonised federal protection for confidential information and allows civil actions for theft of trade secrets. The Act received near unanimous approval in the House of Representatives and Senate.
UPDATE: The Directive was published in the Official Journal on 15 June 2016, meaning that the Directive comes into force on 5 July 2016. Member States now have two years to implement its provisions into national law.