Brussels, 25/11/2013 (Agence Europe) - The European Commission is to present, possibly on Wednesday 27 November, a harmonisation of the national rules on commercial secrets, an area in which there are currently no European rules.
Under a draft directive, of which EUROPE has had sight, the definitions of the commercial secrets of the owners of the rights and products in question, harmonised at European level, will be brought in, together with the circumstances under which the use of a commercial secret is illegal. These measures must be taken within two years. The European Executive is establishing the data to be taken into account to determine the level of damages, but has not laid down the sanctions to be applied.
Certain information which cannot be protected by patent, for example, represent a competitive advantage for their owners over their competitors, irrespective of the sector or size of business. However, the Commission notes that dishonest practices on this subject are on the increase, particularly economic espionage or theft. In addition, the member states do not all offer the same level of protection from these harmful practices.
Under a provisional version of the legislative proposal, in order to be defined as such a commercial secret must be confidential information, its secret nature must confer value upon it and justify efforts on the part of the holder to preserve its confidentiality. The acquisition, use or disclosure of this secret information by a third party would be illegal in the absence of the consent of the owner of the information thus deemed confidential. However, the logic does not stop there. The Commission has indicated that any person not involved in these deeds but making use of this information, whether or not they are aware of this, would also be acting illegally (notwithstanding independent discovery).
The Commission has also detailed the measures and procedures to be complied with in the event of illegal activity and will give the member states two years to apply them following demonstration of a violation of a commercial secret. In order to establish the damages resulting from a breach of confidentiality, the Commission would recommend taking account of the revenue shortfall (such as royalties), but also the non-material harm in the same sum. The Executive also wishes to ensure that the confidential nature of the information in question is respected by the legal authorities during legal proceedings. Lastly, the Commission is leaving it up to the member states to determine the sanctions necessary and will not make any prescriptions on this issue. (MD/transl.fl)