Approach to implementation 

Before the implementation of the Trade Secrets Directive (TSD) in Belgium, the theft and illegal use of trade secrets were dealt with in three different areas of Belgian law: criminal law, the law relating to employment agreements and case law relating to unfair trade practices. 

The Belgian process of implementation of the TSD was conducted via the Belgian Government who proposed a Bill to the Belgian Parliament. That Bill did not propose changes to the current criminal law or create a new type of intellectual property right. However, it would introduce a specific chapter regarding the protection of trade secrets into the Code of Economic Law. It would also create a specific cause of action arising from the unlawful obtaining, use and dissemination of a trade secret, that will be conducted via a so-called "fast track action" whereby the court rules on the merits in an accelerated action but can only issue an injunction, and not damages. Belgian law relating to employment agreements would also be amended to include the definition of a trade secret as contained in the TSD.

Stage of legislative process 

The new Trade Secret Law implementing the Directive came into force on 22 August 2018. 

 
Timescale for implementation 

The Belgian Council of Intellectual Property issued an opinion and recommendations on the draft bill in autumn 2017. The Council of State gave its observations in February 2018 and the Labour Council issued its advice on 22 May 2018. The full text of the bill was submitted to the Belgian Parliament on 15 June 2018. The new law was drafted on 30 July 2018 and was published in the Official Gazette of 14 August 2018, entering into effect on 22 August 2018.

Noteworthy points arising from the legislative changes. Although the Bill is not publicly available as yet, a study of the two opinions mentioned here above teaches certain things about the draft Bill  
  • The Council of Intellectual Property has already recommended that the popular "saisie description" proceedings will not be extended to cover now also alleged violations of trade secrets.
  • The Law provides for the exclusive competence of the Commercial courts for disputes regarding trade secrets. One noteworthy exception is the exclusive competence of the Labour Courts for disputes between employers and former employees regarding trade secrets. There are discussions ongoing about how to reconcile these competing competences so as to avoid duplicative proceedings before two different jurisdictions.

  • The time limit for bringing an action is five years beginning with the date that the owner of the trade secret became aware of the infringement.