Objectives of Directive 2016/943

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  • Objectives of Directive 2016/943

2.1 The 2016 Directive is to be implemented by all Member States by June 9th 2018 so as to conform to a singular approach to trade secret protection. This principle is set out in the preamble[1] as it is emphasized that various Member States have a different approach to trade secret protection and that there is no “equivalent level of protection throughout the Union”, which ultimately has a negative effect on the internal market in relation to cross-border trade. This illustrated the need for harmonization of trade secret protection law within the EU, which is ultimately the objective of this directive – to achieve a better functioning of the internal market through harmonizing the law in relation to trade secrets.[2]

2.2 When considering trade secrets, they can often be thought of in conjunction with intellectual property rights, however they do not possess the same protection as, for example trademarks, patents or copyrights. There are a number of directives and regulations[3] protecting the aforementioned intellectual properties, however the 2016 Directive seeks to afford a basic level of protection of the business know-how as well, by introducing legislation that sets out a basic definition of trade secrets and provides rules on when the infringement of trade secrets has occurred.[4] This is a welcome addition to the EU legal system, as now after the implementation of the 2016 Directive, across the EU, business runners will be afforded a level of protection in operating their business in relation to trade secrets, as all businesses are susceptible to being undermined by their competition in various ways, including unlawful use of those trade secrets.[5]

[1] Directive (EU) 2016/943, Recital (8), www.abogadosaccidenteskp.com

[2] Anna Aurora Wennakoski, “Trade secrets under review: a comparative analysis of the protection of trade secrets in the EU and in the US” [2016] E.I.P.R. 2016, 38(3), p 2

[3] The European Union has developed a number of protection directives and regulations for intellectual properties, most recently, in each area the Directive (EU) 2015/2436 to approximate the laws of the Members States relating to trade marks [16 December 2015], Regulation (EU) 2015/2424 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) [16 December 2015], the Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements [2012], Council Decision No. 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection [2011] and Directive on the term of protection of copyright and certain related rights amending the previous 2006 Directive (“Term Directive”) [27 September 2011]

[4] Directive (EU) 2016/943 Article 4

[5] Jon Lang “The protection of commercial trade secrets” E.I.P.R. [2003], 25(10), 462-471