25 Amendments of Robert ROCHEFORT related to 2013/0402(COD)
Amendment 33 #
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. 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. It is also appropriate to define at Union level the situations where the acquisition, use and disclosure of a trade secret is lawful or unlawful, and to limit the period of application of redress procedures, for the Directive to serve its purpose of consistent protection of trade secrets in the Union.
Amendment 36 #
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, should not constitute an unlawful use or disclosure. Such acquisition or disclosure should however be clearly within the mandate of the relevant public body, and exceeding this mandate should constitute an unlawful act.
Amendment 39 #
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, in particular by having a deterrent effect against the unlawful acquisition, use and disclosure of a trade secret, 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 conductall relevant circumstances resulting in the unlawful acquisition, use or disclosure of the trade secret as well as the impact of such conductacquisition, use 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 43 #
Proposal for a directive
Recital 12
Recital 12
(12) The smooth functioning of the internal market would be undermined if the measures and remedies provided for were used to pursue illegitimate intents, such as creating unjustified barriers to the internal market or to labour mobility, that are incompatible with the objectives of this Directive. Therefore, it is important to ensure that judicial authorities are empowered to sanction abusive behaviour by claimants who act in bad faith and submit manifestly unfounded applications. It is also important that measures and remedies provided for should not restrict the freedom of expression and information (which encompasses media freedom and pluralism as reflected in Article 11 of the Charter of Fundamental Rights of the European Union) or whistleblowing activity. Therefore the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest in so far as relevant misconduct or wrongdoing is revealed.
Amendment 50 #
Proposal for a directive
Recital 16
Recital 16
(16) For the same reason, it is also important to provide for measures to prevent further unlawful use or disclosure of a trade secret. For prohibitory measures to be effective, their dura and proportionate, wthen circumstances require a limitation in time,ir duration should be sufficient to eliminate any commercial advantage which the third party could have derived from the unlawful acquisition, use or disclosure of the trade secret and should be limited in time to avoid the creation of unjustified barriers to competition in the internal market. In any event, no measure of this type should be enforceable if the information originally covered by the trade secret is in the public domain for reasons that cannot be attributed to the respondent.
Amendment 52 #
Proposal for a directive
Recital 17
Recital 17
(17) A trade secret may be unlawfully used to design, manufacture, develop or market services or goods, or components thereof, which may spread across the internal market, thus affecting the commercial interests of the trade secret holder and the functioning of the internal market. In those cases and when the trade secret in question has a significant impact on the quality, value or price of the resulting good or service or on reducing the cost, facilitating or speeding up its manufacturing, development or marketing processes, it is important to empower judicial authorities to order appropriate measures with a view to ensure that those goods or services are not put on the market or are removed from it. Considering the global nature of trade, it is also necessary that these measures include the prohibition of importing those goods into the Union or storing them for the purposes of offering or placing them on the market. Having regard to the principle of proportionality, corrective measures should not necessarily entail the destruction of the goods when other viable options are present, such as depriving the good of its infringing quality or the disposal of the goods outside the market, for example, by means of donations to by charitable organisations.
Amendment 55 #
Proposal for a directive
Recital 20
Recital 20
(20) To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions, including where appropriate through prominent advertising, in cases concerning the unlawful acquisition, use or disclosure of trade secrets, as long as such publication does not result in the disclosure of the trade secret nor disproportionally affect the privacy and reputation of natural persons. There is also a necessity to raise awareness, especially for small and medium-sized businesses, of the availability of redress and remedies in cases of unlawful acquisition, use or disclosure of trade secrets.
Amendment 75 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part
Article 2 – paragraph 1 – point 1 – introductory part
(1) ‘trade secret’ means undisclosed know- how and business information which meets all of the following requirements:
Amendment 84 #
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 91 #
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 105 #
Proposal for a directive
Article 3 – paragraph 3 – point b
Article 3 – paragraph 3 – point b
(b) is in breach of a confidentiality agreement or any other duty to maintain secrecy ofnot to disclose the trade secret;
Amendment 107 #
Proposal for a directive
Article 3 – paragraph 3 – point c
Article 3 – paragraph 3 – point c
(c) is in breach of a contractual or any other duty to limit the use or disclosure of the trade secret.
Amendment 113 #
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 115 #
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, unless the information acquired is used in a manner contrary to honest commercial practices;
Amendment 118 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) exercise of the right of workers or workers’ representatives to information and consultation in accordance with Union and national law and/or practices;
Amendment 125 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Member States shall ensure that there shall be no entitlement to the application for the measures, procedures and remedies provided for in this Directive whenThe acquisition, use and disclosure of trade secrets shall be considered lawful to the extent that the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases:
Amendment 132 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) for the purpose of revealing an applicant’s misconduct, wrongdoing or illegal activity, provided that the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest;
Amendment 162 #
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 172 #
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, 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. Member States may also allow the competent judicial authorities to take such measures on their own initiative.
Amendment 186 #
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 guarantee the right 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 190 #
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 that the know-how or business information involved qualifies as 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 191 #
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 198 #
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 202 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 212 #
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.