Belgian Council of Ministers approves EU Trade Secrets Directive draft bill

On 8 June 2016, the European Parliament and the Council adopted the Trade Secrets Directive The aim of this Directive is to (i) provide a consistent definition for a “trade secret” and how it can be protected, (ii) set out the remedies for a trade secret’s misuse or misappropriation and (iii) ensure that national courts can guarantee the confidentiality of trade secrets during legal proceedings. Prior to the Directive, the EU lacked a common legal framework for the protection of trade secrets. Each European country had its own definition of trade secrets, and measures and remedies could also vary. The Directive aims to create a level playing field for EU companies defending themselves in European courts.

To date, Belgian Law provides protection for manufacturing secrets through tort, criminal law, commercial law and contract law. For instance, the principle that contractual obligations should be performed in good faith may be used against a party breaching a contractual obligation, such as a confidentiality clause. However, these existing mechanisms do not provide sufficiently strong protection for trade secrets and do not meet the Trade Secrets Directive’s minimum standards.

Before 9 June 2018, all EU Member States must incorporate that minimum level of protection into their national laws. As the Directive provides for minimum harmonization, Member States can apply stricter rules.

On 19 January 2018, the Belgian Council of Ministers approved a draft bill implementing the EU Trade Secrets Directive. The draft bill gives judges the power to pass provisional and protective measures, and to issue injunctions and corrective measures to protect trade secrets, and also allows them to issue cease-and-desist orders in the event of an impending acquisition of trade secrets. In addition, the draft bill stipulates a specific limitation period and establishes confidentiality provisions in legal proceedings. Sanctions for non-compliance include judicial fines and penalty payments. Finally, the draft bill provides for the centralization in the commercial courts of all claims (regardless of size) relating to the unlawful acquisition, use or disclosure of trade secrets.

The draft bill will shortly be submitted to the Council of State and later to the Chamber of Representatives.

Laurine Georgis, Senior Associate, laurine.georgis@cms-db.com
Tom Heremans, Managing Partner, tom.heremans@cms-db.com