Trade Secrets Directive: final text agreed between the European Parliament and the Council of Europe

On 15 December 2015 the European Parliament and the Council of Europe, through their respective internal bodies, the Legal Affairs Committee (JURI) and the Committee of Permanent Representatives (COREPER), reached an agreement on the final draft of the Directive (available here, see also our previous comment on the EU Commision’s proposal here).

The final version of the text was endorsed by the JURI on 28th January 2016. The European Parliament shall vote upon it in plenary session. Subsequently, the text shall be submitted to the Council of Europe for final revisions.

Following these steps, the European Member States will have 24 months to transpose the Directive. This time period will begin from the date of publication of the Directive in the Official Journal of the European Union, which is not due before March or April 2016.

During the negotiations, one of the main issues of debate between the European Parliament and the Council of Europe concerned the necessity to strike a balance between, on the one hand, the right of information, the freedom of expression and investigative journalism (so-called “whistle-blowing”) and, on the other hand, the protection of trade secrets.

For this purpose, the final text provides for guarantees for the preservation of each of these fundamental rights and strengthens the position of whistle-blowers, by stating, at Art. 1, that the Directive “shall not affect the exercise of the right of freedom of expression and information” and, at art. 4, that “the measures, procedures and remedies provided in this Directive are dismissed when the alleged acquisition, use or disclosure of trade secret was carried outfor revealing a misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest”.

Finally, the Directive will guarantee that its rules will not create unjustified barriers to worker’s mobility. Indeed, as underlined by the JURI, the Directive specifies, at Art. 1, that rules protecting trade secrets will not “[limit] employees’ use of the experience and skills honestly acquired in the normal course of their employment”, and that rules should not “[impose] any additional restrictions on employees in their employment contracts other than in accordance with EU or national law”.

Alessandro Massolo

Researcher at Osservatorio di proprietà intellettuale, concorrenza e comunicazioni, LUISS Guido Carli

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