Approach to implementation
The implementation has been done by means of a new special statutory law that has been approved by the Senate on 6 February 2019.
Until the New Law enters into force, trade secret infringement is ruled in the Spanish Unfair Competition Act (Article 13) and there are several rules to protect trade secrets in the framework of Spanish civil and criminal judicial procedures.
In addition, the Spanish Criminal Code foresees criminal relief for the most serious trade secrets infringements (Articles 278 and 279 of the Criminal Code). This will not be modified with the implementation of the Directive.
Stage of legislative process
On 6 February 2019, the Spanish Senate approved the text of the new Business Secrets Act submitted by the Congress. It will be published in the Official State Gazette (BOE) over the coming days and will come into force 20 days after its publication.
Timescale for implementation
The publication of the New Law in the Official State Gazette (BOE) will take place in the coming days and it will come into force 20 days after its publication.
Noteworthy points arising from the legislative changes
- The limitation period for bringing an action is fixed at three years beginning with the date the rights holder became aware of the infringement.
- The New Act refers to civil law liability but refers to the Criminal Code for the most serious trade secret infringements (Articles 278 and 279 of the Criminal Code).
- Unlike the Directive, the New Act includes a section defining the trade secret as an object of property: assignments, licenses and co-ownership.
- Apart from the other measures established in the Directive, the proposal foresees the possibility of using the procedure of saisie-contrefaçon established in the Spanish Patent Act to obtain information regarding facts that are indispensable for the preparation of a corresponding claim.
- The measures that courts are able to take due to breaches of the rules of good faith in proceedings have been strengthened
- The transitional disposition of the New Act foresees its application to any trade secret regardless of the date of its legitimate acquisition. Only claims made before the entry into force of the new law would continue under the previous regulations.
