The development of a European trade secret rule

Abstract

Knowledge is the key factor and it is also the essence of every business, whether it is a small medium business or a multi-national. The protection of a trade secret by its right holder has always been of great debate, until the Commission decided to push forward a legislative development with the objective to reach a harmonization between the different legal frameworks across the European territory with regards the protection granted to trade secrets. The Commission proposed a text to enact a Directive which specifically caters for protection against the misappropriation of confidential information, which Directive was endorsed by the European Parliament in 2016. The first chapter of this thesis shall give an overview of the early history of a trade secret, highlighting all the different legal frameworks that exist for the protection of trade secrets as well as looking into all the different interpretations that were given when it came to define a trade secret. The second chapter shall delve into the necessity and the birth of the Directive and the studies carried by the Commission that brought about this European legislative development. This chapter shall shed more light on the fragmented protection that is being granted by the Member States up to this very day, since the Directive still needs to be transposed into national law. The third chapter shall focus on the definition of a trade secret provided by the Trade Secrets Directive and whether it shall bring about changes compared to the definition found in the TRIPS Agreement and in other international legal frameworks. Three elements shall be extracted from the definition of a trade secret and shall be discussed thoroughly through the whole chapter. The fourth chapter shall delve into what is considered the cornerstone of the whole Directive, the acquisition, use and disclosure of a trade secret. It shall be noted that the Directive not only refers to unlawful acquisition but it also caters for the possibility of having a lawful one. The final section of this chapter shall focus in more detail on the exceptions to the acquisition of a trade secret provided by the Directive which relate to freedom of expression, whistle-blowers as well as Union's representatives. The fifth chapter shall look into the litigation process that one has to revert to in order to protect a trade secret or else to find civil redress against the misappropriation of confidential information whilst pointing out the principle of confidentiality that needs to subsist during lawsuits.