Approach to implementation 

The implementation will be done by means of a special statutory law, the Law on the Protection of Trade Secrets (Wet bescherming bedrijfsgeheimen). It also contains some changes to the Civil Code (on the statute of limitations) and to the Code of Civil Procedure (for procedural aspects).

Stage of legislative process 

The new law was approved by the lower house of Parliament (Tweede Kamer) on 17 April 2018. All parties except the populist party (PVV) were in favour. The government submitted its response to questions from the upper house of parliament on 22 June 2018. In its response, the government has said that it is convinced that the possibility of a remuneration of reasonable and proportionate legal costs, which is in the law, is a good thing. The court can apply this in a flexible way; the more the infringer acted in bad faith, the larger the portion of the costs that will be reimbursed should be. That's in line with a recent Supreme Court judgment in a patent case, which says that indicative rates can be a good idea, but in the end it is for the courts to decide the amount (so there should be no fixed ceilings).

The last set of answers to questions from Parliament was sent to the first chamber of Parliament on 7 September which concluded the written stage of the process.

We are now awaiting a decision as to whether there will be a plenary debate on the proposal.

Timescale for implementation 

The Netherlands has not been able to meet the 9 June deadline. Once the law has been approved by the upper house, there still are some formalities to complete (the King has to sign the law and publication in the official State magazine has to be prepared).

At present there is no date for a final vote on the new law.

Noteworthy points arising from the legislative changes 

The law closely follows the Directive. The subjective term of the statute of limitations will be five years from the date that the holder became aware of the infringement. The objective term is 20 years after the fact.

There are three additions to the protection awarded by the Directive:

  • The successful party may be awarded remuneration of its reasonable and proportionate legal costs and other expenses unless equity would not allow this. In contrast to article 14 Enforcement Directive, this is at the discretion of the Court.

  • The Court may order in any case where trade secrets are at stake (not only in cases of enforcement of trade secrets) that the Court file will only be accessible to the lawyers and thus not to a party.

  • The Dutch Supreme Court had already held in its judgment of 13-9-2013, ECLI:NL:HR:2013:BZ9958, NJ 2014, 455, Molenbeek v Begeer, that a saisie is also available for the enforcement of rights other than intellectual property rights. The government explanatory note to the new law states that this is a sufficient legal basis for saisies for the enforcement of trade secrets.