On 24 August 2018, the Belgian Act of 30 July 2018 on the Protection of Trade Secrets ('Act on Trade Secrets') entered into force. This Act implements the EU Directive 2016/943, which aims to harmonise and enhance the levels of protection for various types of trade secrets across all member states.
The key features of the Act on Trade Secrets are:
- Codification of a broad definition of trade secrets i.e. (i) secret information, (ii) which has commercial value because it is secret and (iii) has been the object of reasonable measures to protect its secrecy. This definition covers a very broad range of information such as the chemical composition of a product and manufacturing processes but also commercial information such as client lists, market studies, etc.;
- Protection is guaranteed against the unlawful acquisition, use and disclosure of trade secrets. The Act on Trade Secrets also targets third parties that knew or should have known that the trade secret was acquired or used unlawfully;
- Victims can appeal to a whole range of (provisional) measures such as cessation of unlawful use or disclosure, recall or even destruction of infringing goods, damages, etc. These measures are very comparable to those available to intellectual property rights holders with the exception of the seizure-description which is excluded;
- The statute of limitation is 5 years from the discovery of the unlawful breach and the identity of the alleged infringer;
- A court can take specific confidentiality measures to ensure that trade secrets remain protected during court proceedings by restricting access to information, restricting attendance during hearings or by imposing a specific duty of confidentiality to the relevant participants in the legal proceedings;
- Litigation is centralised to the commercial courts but labour courts keep their specific competence in cases of litigation against (ex)employees.
A huge increase in intangible assets and employee mobility has made companies more vulnerable to trade secret breaches. The Act on Trade Secrets brings changes to the Code of Economic law, the Judicial Code and the Act on Employment Contracts, and can help companies to better protect their interests.
Keep up to speed with implementation across Europe using our online Trade Secrets Directive Tracker.