Trade Secrets Directive, Articles 2 to 5 (trade secret definition, lawful and unlawful acquisition, use and disclosure)

Article 19(1) required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 9 June 2018.

Article 2, point (1), defines a trade secret as information that is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question, that has commercial value because it is secret, and that has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

Article 3(1) makes the acquisition of a trade secret lawful when it is obtained by independent discovery or creation; by observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in the possession of the acquirer of the information who is free from any legally valid duty to limit the acquisition of the trade secret; by exercise of the right of workers or workers' representatives to information and consultation in accordance with Union law and national laws and practices; or by any other practice which, under the circumstances, is in conformity with fair dealing in commercial practice.

Recital 16 states that reverse engineering of a lawfully acquired product should be considered a lawful means of acquiring information, except when otherwise contractually agreed.

Article 4(2) makes the acquisition of a trade secret without the consent of the trade secret holder unlawful when carried out by unauthorized access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced, or by any other conduct which, under the circumstances, is considered contrary to fair dealing in commercial practice.

Article 4(3) makes the use or disclosure of a trade secret without the holder's consent unlawful when carried out by a person who acquired it unlawfully, who is in breach of a confidentiality agreement or any other duty not to disclose it, or who is in breach of a contractual or any other duty to limit its use.

Article 4(4) makes the acquisition, use or disclosure unlawful as well when a person, at the time, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing it unlawfully within the meaning of Article 4(3).

Article 5 requires Member States to ensure that an application for the Directive's measures, procedures and remedies is dismissed where the acquisition, use or disclosure was carried out for exercising the right to freedom of expression and information, for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest, for disclosure by workers to their representatives as part of the legitimate exercise by those representatives of their functions in accordance with Union or national law, provided that the disclosure was necessary for that exercise, or for the purpose of protecting a legitimate interest recognized by Union or national law.

Article 4(1) requires Member States to ensure that trade secret holders are entitled to apply for the measures, procedures and remedies the Directive provides in order to prevent, or obtain redress for, the unlawful acquisition, use or disclosure of their trade secret. Article 6(1) requires Member States to provide for the measures, procedures and remedies necessary to ensure the availability of civil redress against the unlawful acquisition, use and disclosure of trade secrets.