Activities of Philippe DE BACKER related to 2013/0402(COD)
Plenary speeches (1)
Protection of trade secrets against their unlawful acquisition, use and disclosure (A8-0199/2015 - Constance Le Grip)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure
Amendments (32)
Amendment 55 #
Proposal for a directive
Recital 2
Recital 2
(2) Open innovation is an important lever for the creation of new knowledge and underpins the emergence of new and innovative business models based on the use of co-created knowledge. Trade secrets have an important role in protecting the exchange of knowledge between businesses and/or research institutions within and across the borders of the internal market in the context of research and development and innovation. Collaborative research, including cross- border cooperation, is particularly important to increase the levels of business research and development within the internal market. Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. In an internal market where barriers to such cross-border collaboration are minimised and where cooperation is not distorted, intellectual creation and innovation should encourage investment in innovative processes, services and products. Such an environment conducive to intellectual creation and innovation is also important for employment growth and improving competitiveness of the Union economy. Trade secrets are amongst the most used form of protection of intellectual creation and innovative know-how by businesses, yet they are at the same time the least protected by the existing Union legal framework against their unlawful acquisition, use or disclosure by third parties.
Amendment 62 #
Proposal for a directive
Recital 8
Recital 8
(8) It is appropriate to provide for rules at Union level to approximate the national legislative systems so as to ensure a sufficient and consistent level of redress across the internal market in case of unlawful acquisition, use or disclosure of a trade secret. For this purpose, it is important to establish a homogenous definition of a trade secret without restricting the subject matter to be protected against misappropriation. Such definition should therefore be constructed as to cover business information, technological information and know-how where there is both a legitimate interest in keeping confidential and a legitimate expectation in the preservation of such confidentiality. Such confidential know- how should furthermore have commercial value, whether actual or potential, insofar as its unlawful acquisition, use or disclosure undermines the scientific and technical potential, business or financial interests, strategic positions or ability to compete of the trade secret holder. By nature, such definition should exclude trivial information and should not extend to the knowledge and skills gained by employees in the normal course of their employment and which are known among or accessible to persons within the circles that normally deal with the kind of information in question.
Amendment 64 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) The obligations listed in Article 3(3) should not limit the use of the acquired experience and know-how by honest practices in the framework of a labour agreement or any other contractual relation. This should ensure that labour mobility will not be endangered while at the same time ensuring an adequate protection for trade secrets.
Amendment 69 #
Proposal for a directive
Recital 10
Recital 10
(10) In the interest of innovation and to foster competition, the provisions of this Directive should not create any exclusive right on the know-how or information protected as trade secrets. Thus, independent discovery of the same know- how and information remains possible and competitors of the trade secret holder are also free to reverse engineer any lawfully acquired product, as long as this is in line with honest commercial practices.
Amendment 71 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The acquisition or disclosure of a trade secret by a public body, whether imposed or permitted by law, shall not constitute an unlawful use or disclosure. This acquisition or disclosure should however be clearly within the mandate of the respective public body, and outstepping this mandate will constitute an unlawful act.
Amendment 74 #
Proposal for a directive
Recital 11
Recital 11
(11) In line with the principle of proportionality the measures and remedies intended to protect trade secrets should be tailored to meet the objective of a smooth functioning internal market for research and innovation without jeopardising other objectives and principles of public interest. In this respect, the measures and remedies ensure that competent judicial authorities account for the value of a trade secret, the seriousness of the conduct resulting in the unlawful acquisition,all relevant circumstances resulting in the use or disclosure of the trade secret as well as the impact of such conductuse or disclosure. It should also be ensured that the competent judicial authorities are provided with the discretion to weigh up the interests of the parties to the litigation, as well as the interests of third parties including, where appropriate, consumers.
Amendment 82 #
Proposal for a directive
Recital 14
Recital 14
(14) The prospect of losing the confidentiality of a trade secret during litigation procedures often deters legitimate trade secret holders from instituting proceedings to defend their trade secrets, thus jeopardising the effectiveness of the measures and remedies provided for. For this reason, it is necessary to establish, subject to appropriate safeguards ensuring the right to a fair trial, specific requirements aimed at protecting the confidentiality of the litigated trade secret in the course of legal proceedings instituted for its defence. These should include the possibility to restrict access to evidence or hearings, or to publish only the non- confidential elements of judicial decisions. To ensure a sufficient access to information, in cases where access is restricted, at least one person from each party and its respective lawyer should have access to evidence or hearings. Such protection should remain in force after the legal proceedings have ended for as long as the information covered by the trade secret is not in the public domain.
Amendment 85 #
Proposal for a directive
Recital 15
Recital 15
(15) Unlawful acquisition, use or disclosure of a trade secret by a third party could have devastating effects on its legitimate holder since once publicly disclosed it would be impossible for that holder to revert to the situation prior to the loss of the trade secret. As a result, it is essential to provide for fast and accessible interim measures for the immediate termination of the unlawful acquisition, use or disclosure of a trade secret. Such relief must be available without having to await a decision on the substance of the case, with due respect for the rights of defence and the principle of proportionality having regard to the characteristics of the case in question. Guarantees of a level sufficient to cover the costs and the injury caused to the respondent by an unjustified request may also be required, particularly where any delay would cause irreparable harm to the legitimate holder of a trade secret.
Amendment 121 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ’infringing goods’ means goods whose designproducts or services whose characteristics, quality, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.
Amendment 129 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) unauthorised access to or copy, copy or appropriation of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
Amendment 132 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
Amendment 134 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
Amendment 136 #
Proposal for a directive
Article 3 – paragraph 2 – point d
Article 3 – paragraph 2 – point d
Amendment 137 #
Proposal for a directive
Article 3 – paragraph 2 – point e
Article 3 – paragraph 2 – point e
Amendment 159 #
Proposal for a directive
Article 3 – paragraph 5
Article 3 – paragraph 5
5. The conscious and deliberate production, offering or placing on the market of infringing goods, or import, export or storage of infringing goods for those purposes, shall be considered an unlawful use of a trade secret, when the person carrying out such activities knew, or should, under the circumstances, have known that the trade secret was used unlawfully.
Amendment 164 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) observation, study, disassembly or test of a product or object that has been made available to the public or that it is lawfully in the possession of the acquirer of the information; and is not under any legal obligation to limit the acquisition of the trade secret.
Amendment 166 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
Amendment 174 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. The acquisition, use and disclosure of trade secrets shall be considered lawful to the extent that such acquisition, use or disclosure is required or allowed by Union or national law.
Amendment 176 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) for making legitimate use of the right to freedom of expression and information as reflected in Article 11 of the Charter of Fundamental Rights of the European Union;
Amendment 182 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
Amendment 189 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) for the purpose of protecting a legitimate interest recognised by Union or national law.
Amendment 196 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Member States shall ensure that actions for the application of the measures, procedures and remedies provided for in this Directive may be brought within at least one year but not more than twofour years after the date on which the applicant became aware, or had reason to become aware, of the last fact giving rise to the action.
Amendment 203 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – introductory part
Article 8 – paragraph 1 – subparagraph 2 – introductory part
The obligation referred to in the first subparagraph shall cease to exisontinue to apply until after the end of the legal proceedings, except in any of the following circumstances:
Amendment 207 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
Member States shall also ensure that the competent judicial authorities may, on a duly reasoned application by a party or on its own initiative, take specific measures necessary to preserve the confidentiality of any trade secret or alleged trade secret used or referred to in the course of the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret.
Amendment 211 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a
Article 8 – paragraph 2 – subparagraph 2 – point a
(a) to restrict access to any document containing trade secrets submitted by the parties or third parties, in whole or in part, as long as at least one person of each party or their respective lawyers have full access to such document;
Amendment 215 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3
Article 8 – paragraph 2 – subparagraph 3
Amendment 228 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that in deciding on the granting or rejecting of the application and assessing its proportionality, the competent judicial authorities shall be required to take into account all relevant aspects of the case, such as the value of the trade secret, the measures taken to protect the trade secret, the intentional or unintentional conduct of the respondent in acquiring, disclosing or using of the trade secret, the impact of the unlawful disclosure or use of the trade secret, the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties, the legitimate interests of third parties, the public interest and the safeguard of fundamental rights, including freedom of expression and information.
Amendment 244 #
Proposal for a directive
Article 11 – paragraph 2 – point a
Article 11 – paragraph 2 – point a
Amendment 255 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Member States shall ensure that, in considering a request for the adoption of the injunctions and corrective measures provided for in Article 11 and assessing their proportionality, the competent judicial authorities take into account all relevant aspects of the case, such as the value of the trade secret, the measures taken to protect the trade secret, the conduct of the infringer in acquiring, disclosing or using of the trade secret, the impact of the unlawful disclosure or use of the trade secret, the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties, the legitimate interests of third parties, the public interest and the safeguard of fundamental rights, including freedom of expression and information.
Amendment 262 #
Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point a
Article 12 – paragraph 3 – subparagraph 1 – point a
(a) the person concerned originally acquired knowledge of the trade secret in good faith and fulfils the conditions of Article 3(4)at the moment of use or disclosure neither knew nor had reason, under the circumstances, to know that the trade secret was obtained from another person who was using or disclosing the trade secret unlawfully;
Amendment 271 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that the competent judicial authorities, on the application of the injured party, order the infringer who knew or ought to have known that he or she was engaging in unlawful acquisition, disclosure or use of a trade secret, to pay the trade secret holder damages commensurate to the actual prejudice suffered. In accordance with their national law and practice, Member States may restrict the liability for damages of employees towards their employers for the unlawful acquisition, use or disclosure of a trade secret of the employer when they act without intent.
Amendment 275 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
When setting the damages, the competent judicial authorities shall take into account all appropriaterelevant factors, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret.