33 Amendments of Aldo PATRICIELLO related to 2013/0402(COD)
Amendment 72 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The lawful acquisition of confidential commercial information or know-how cannot justify a subsequent use or disclosure constituting unfair competition contrary to honest industrial or commercial practices as defined in Article 10a of the Paris Convention. While healthy competition brought about by the lawful use of data, including data generated by reverse engineering, should be encouraged, it is essential to punish any use which is contrary to honest commercial practices.
Amendment 73 #
Proposal for a directive
Recital 10 b (new)
Recital 10 b (new)
(10b) More and more frequently the marketing of many products, in particular in the context of procurement procedures, is contingent on the notification to the regulatory and administrative authorities of confidential data, some of it obtained by means of tests which are very costly to set up. The disclosure of some or all of the information in question by the authorities and its acquisition by third parties must not lead to it being used unfairly on the market.
Amendment 103 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
This Directive shall not prevent Member States from adopting, or continuing to take, more restrictive measures, in accordance with the Treaties and with this Directive, against the acquisition, use, or disclosure of trade secrets.
Amendment 113 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the informationir holder, to keep it secret.;
Amendment 118 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
4) ‘infringing goods or services’ means goods whose design,or services whose quality, manufcharactuering processtics or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.
Amendment 119 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
4) ‘infringing goods’ means goods whose design, quality, characteristics, functioning, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.
Amendment 123 #
Proposal for a directive
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. The acquisition of a trade secret without the consent of the trade secret holder shall be considered unlawful, whenever carried out intentionally or with gross negligence by:
Amendment 143 #
Proposal for a directive
Article 3 – paragraph 3 – introductory part
Article 3 – paragraph 3 – introductory part
3. The use or disclosure of a trade secret shall be considered unlawful whenever carried out, without the consent of the trade secret holder, intentionally or with gross negligence, by a person who is found to meet any of the following conditions:
Amendment 151 #
Proposal for a directive
Article 3 – paragraph 3 – point c a (new)
Article 3 – paragraph 3 – point c a (new)
ca) has acquired the trade secret lawfully but uses or discloses it in a manner contrary to honest commercial practices and likely to harm the commercial interests of the trade secret holder and/or the smooth functioning of the internal market.
Amendment 152 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. The obligations laid down in paragraph 3 may not arbitrarily limit the use of experience acquired honestly through employment or some other contractual relationship. The rules on collective agreements and national labour law systems shall not be affected.
Amendment 154 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. The use or disclosure of a trade secret shall also be considered unlawful whenever a person, at the time of use or disclosure, knew or should, under the circumstances, have known that the trade secret was obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of the paragraph 3.
Amendment 157 #
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 also 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 acquired, used or disclosed unlawfully within the meaning of paragraph 3.
Amendment 163 #
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 who is free from any legally valid duty to limit the acquisition of the trade secret;
Amendment 173 #
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 regarded as lawful if it is required under national or Union law, the rights of the holder notwithstanding.
Amendment 178 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
b) for the purpose of revealing to the supervisory authorities or bodies an applicant’s misconduct, wrongdoing or illegal activity, provided that the alleged acquisition, use or disclosure of the trade secret was strictly confined to and necessary for such revelation and that the respondent acted in the public interest;
Amendment 181 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
c) the trade secret was disclosed by workers to their representatives as part of the legitimate exercise of their representative functions, provided that such disclosure was strictly confined to and necessary for that exercise;
Amendment 183 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
d) for the purpose of fulfilling a non- contractual obligation;eleted
Amendment 188 #
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 191 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. The means and exceptions referred to in Article 4 shall apply only in so far as they are in conformity with honest commercial practices and do not confer any unfair competitive advantage.
Amendment 198 #
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 twohree 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 204 #
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 remain in force after the legal proceedings have ended. However, such obligation shall cease to exist in any of the following circumstances:
Amendment 205 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – point a
Article 8 – paragraph 1 – subparagraph 2 – point a
a) where in the course of the proceedings, the alleged trade secret is found, in a final and binding decision, not to fulfil the requirements set in point (1) of Article 2;
Amendment 216 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. When deciding on the granting or the rejection of the application referred to in paragraph 2 and assessing its proportionality, the competent judicial authorities shall take into account the need to ensure the rights to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate of third parties, and any potential harm for either of the parties, and where appropriate third parties, resulting from the granting or rejection of such application.
Amendment 223 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that the competent judicial authorities have, in respect of the measures referred to in Article 9, the authority to require the applicant to provide evidence that may reasonably be considered available in order to satisfy themselves with a sufficient degree of certainty that a trade secret exists, that the applicant is the legitimate trade secret holder and that the trade secret has been acquired unlawfully, that the trade secret is being unlawfully used or disclosed, or that an unlawful acquisition, use or disclosure of the trade secret is imminent.
Amendment 243 #
Proposal for a directive
Article 11 – paragraph 2 – point a
Article 11 – paragraph 2 – point a
Amendment 248 #
Proposal for a directive
Article 11 – paragraph 2 – point e
Article 11 – paragraph 2 – point e
e) the destruction of all or part of any document, object, material, substance or electronic file containing or implementing the trade secret or, where appropriate, the delivery up to the trade secret holderapplicant of all or part of those documents, objects, materials, substances and electronic files.
Amendment 252 #
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 the value of the trade secret, the measures taken to protect the trade secret, and other characteristics of the trade secret, of the conduct of the infringer in acquiring, disclosing or using of the trade secret, of the impact of the unlawful disclosure or use of the trade secret, the legitimate interests of the parties and of 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 258 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Member States shall ensure that the measures referred to in in points (a) and (b) of Article 11(1) are revoked or otherwise cease to have effect, upon request of the respondent if in the meantime the information in question no longer fulfils the conditions of point (1) of Article 2 for reasons that cannot be attributed to the respondent.
Amendment 260 #
Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – introductory part
Article 12 – paragraph 3 – subparagraph 1 – introductory part
Member States shall provide that, at the request of the person liable to be subject to the measures provided for in Article 11trade secret holder, the competent judicial authority may order pecuniary compensation to be paid to the injured party instead of applying those measures if all the following conditions are met:
Amendment 261 #
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 time 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 264 #
Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point b
Article 12 – paragraph 3 – subparagraph 1 – point b
b) execution of the measures in question would cause that person disproportionate harmdoes not affect English version; linguistic amendment to French text;
Amendment 266 #
Proposal for a directive
Article 12 – paragraph 3 – subparagraph 2
Article 12 – paragraph 3 – subparagraph 2
When the pecuniary compensation is ordered instead of the order referred to in points (a) and (b) of Article 11(1), such pecuniary compensation shall not exceed the amount of royalties or fees which would have been due, had that person requested authorisation to use the trade secret in question, for the period of time for which use of the trade secret could have been prohibited.
Amendment 268 #
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 as a result of the offence. In accordance with their national laws and practices, Member States may limit 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.