European Council directive promises to protect trade secrets and whistle blowers

The directive lays down common measures against the unlawful acquisition, use and disclosure of trade secrets but will also “fully ensure” that investigative journalism can be practised without any new limitations.

It also complies with the EU’s Charter of Fundamental Rights, which preserves freedom and pluralism of the media.

Under the new measures, whistle-blowers will enjoy “adequate protection” but it will be up to national competent judicial authorities to judge whether the disclosure of a commercial secret was necessary to denounce a misconduct, wrongdoing or illegal activity.

In accordance with the new legal framework, EU member states will have to provide for the measures, procedures and remedies necessary to ensure the availability of civil redress against illegal acquisition, use and disclosure of trade secrets.

These will have to be fair, effective and dissuasive and must not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

The limitation period for claims will not exceed six years.

Trade secret holders will be entitled to apply for remedies in case of damages following cases of illegal appropriation of documents, objects, materials, substances or electronic files containing the trade secret or from which the trade secret can be deduced.

Where necessary, confidentiality of trade secrets will also be preserved during the course of and after the legal proceedings.

After the directive is published in the Official Journal of the EU and comes into force, member states will have a maximum of two years to incorporate the new provisions into domestic law.