On 15 June 2016, Directive (EU) 2016/943 of the European Parliament (EP) and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, was published in the Official Journal.

The Directive was formally adopted by the Council on 27 May 2016 (see Legal update, Trade secrets: Council formally adopts Trade Secrets Directive). It was proposed by the European Commission on 28 November 2013 (see Legal update, European Commission adopts proposal for directive on protection of trade secrets).

The Directive addresses the fact that the current protection for trade secrets varies significantly across the EU, and that these discrepancies risk deterring cross-border investment. It will impose a minimum harmonised standard, under which a "trade secret" is defined as information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. For a detailed analysis of the Directive, see Practical Law Employment, Legal update, New draft Trade Secrets Directive: employment aspects. For a regulatory overview of the Directive, see Trade secrets: legislation tracker.

Next steps: The Directive will enter into force on the 20th day following that of its publication in the Official Journal. Member states have to transpose the Directive into their national law by 9 June 2018.

By 9 June 2021, the EU Intellectual Property Office, in the context of the activities of the European Observatory on Infringements of Intellectual Property Rights, will prepare an initial report on the litigation trends regarding the unlawful acquisition, use or disclosure of trade secrets. By 9 June 2022, the Commission will prepare an intermediate report on its application, in particular the possible effects on research and innovation, the mobility of employees and on the exercise of the right to freedom of expression and information. By 9 June 2026, the Commission will carry out an evaluation of its impact and submit a report to the EP and to the Council.

Source: Directive (EU) 2016/943 of the EP and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ 2016 L 157/1).