The European Union’s New Trade Secrets Directive

By Emmanuelle Ragot*

I. INTRODUCTION

The unlawful acquisition, use and disclosure of trade secrets is a growing concern among companies in the European Union. According to a recent European Commission study, approximately 25 percent of European companies responding to a survey regarding trade secret use and protection stated that they "ha[d] suffered at least one attempt at misappropriation" between 2003 and 2013, and 38 percent stated that they believed the risk of such misappropriation had increased during that time period.¹

Surprisingly, however, there is currently no unified EU framework for trade secret protection. Instead, trade secrets are governed by national laws, which are often outdated, unclear and contradictory. For example, trade secret laws in Germany, Finland, Greece, Denmark and Spain fail to clearly define trade secrets.² Trade secret laws in many EU member states also suffer from significant loopholes.³ Further, some states, such as Belgium, France, Ireland, Luxembourg, Malta, the Netherlands and the UK, have no specific civil legislation regarding trade secrets at all. In these states, misappropriation claims are prosecuted under a variety of different legal theories, including extra-contractual liability, traditional common law and criminal law.⁴