The Limits of EU Trade Secret Protection

Abstract

During the journey of the EU Trade Secrets Directive 2016/943 controversies surrounded the scope of trade secrets protection and its appropriate limits. There were concerns that public institutions, journalists, employees, whistle-blowers, competitors and consumers would be unduly restricted. As such, what evolved as article 3 ‘Lawful acquisition, use or disclosure’ and article 5 ‘Exceptions’ attracted a great deal of attention, especially at the European Parliament stage. This paper examines the background and scope of articles 3 and 5 of the Directive and argues there is considerable risk of divergence in implementation by Member States and interpretation by national courts. Further, it is unclear what interpretative approach the CJEU should adopt towards these provisions. The paper begins by considering how the Directive conceptually frames trade secrets protection before turning to examine article 3 and then article 5, and finally drawing together conclusions.

Keywords: trade secrets, harmonization, exceptions, limitations, public interest, freedom of expression, whistle-blowing, reverse engineering, lawful acquisition, independent creation