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Trade Secrets Directive finally passed

On 27 May 2016 the Council of the European Union confirmed that it has approved the Trade Secrets Directive, meaning that it will become law.

The date by which Member States must implement the Directive will be confirmed when it is published in the Official Journal of the European Union shortly.

Member States will have 24 months from the date of adoption to bring in measures to ensure a minimum level of civil law protections and procedures for enforcement of confidential commercial information.  See our previous post on the key provisions of the Directive here.

The Directive, initially proposed in 2013, has been passed despite the objections of the German Pirate Party and a number of organisations of investigative journalists and lawyers.  Key concerns related to employee mobility (the right for employees to use experience and skills honestly acquired) and protection for whistleblowers and journalist’s sources.

Critics noted the importance of breaches of confidence in revealing stories in the public interest, such as in the “Panama Papers” leaks.  The Council’s press release addresses these issues in the same terms as the Parliament did previously, in an attempt to reassure those who have heard grave reports about the Directive’s draconian effects.  This is unlikely to satisfy those critics who are concerned about the laws Member States will pass to ensure at least a minimum level, and potentially a greater level of protection for trade secrets holders, at the expense of other considerations.

The extent of any implementing legislation that will be required in the UK remains uncertain, as existing common law protections for confidential information and UK court procedures already address the majority of the issues raised by the Directive.

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

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