2013/0402(COD) | [ParlTrack]

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down minimum rules on the protection against the unlawful acquisition, disclosure and use of trade secrets.

Amendment 101 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

This Directive shall be without prejudice to the autonomy of the social partners and their right to enter into collective agreements in accordance with national law, traditions and practices and while respecting the provisions of the Treaty.

Amendment 102 #

Olle LUDVIGSSON

Proposal for a directive
Article 1 – paragraph 1 a (new)

Amendment 103 #

Proposal for a directive
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 104 #

Proposal for a directive
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 105 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part

(1) ‘trade secret’ means ~~information~~all proprietary production- and market-related information held by firms which meets all of the following requirements:

Amendment 106 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a

(a) is secret in the sense that it is not, ~~as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally~~taken as a whole, as a new item of marketable value, accessible to persons within the circles that directly or indirectly, depending on their links with the market, deal with the kind of information in question;

Amendment 107 #

José BLANCO LÓPEZ

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a

a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question or any person who could obtain economic value from its disclosure or use;

Amendment 108 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

(b) ~~has commercial value because it is sec~~is a set of information which is not, but could potentially be, covered by intellectual property rights, but which, before it is registered and becomes the subject of official patents, industrial designs and copyright, cannot be deemed equivalent thereto;

Amendment 109 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

b) has commercial value because it is secret and the legal entity has a legitimate interest in its non-disclosure;

Amendment 110 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

(b) has commercial value because it is secret and has an economic benefit to it, which turns the secret into a competitive advantage;

Amendment 111 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

(b) has actual or potential commercial value because it is secret;

Amendment 112 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c

(c) has been subject to ~~reasonable step~~official registration, with a general description of what it covers uand~~er the circumstances, by the person lawfully~~ other steps required to keep it secret, by the person legally established as being in control of the information~~, to keep it secret~~.

Amendment 113 #

Proposal for a directive
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 information~~ir holder, to keep it secret.;

Amendment 114 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c a (new)

(ca) taken as a whole, as a compilation of known solutions, it can constitute a new qualitatively unique production and market structure;

Amendment 115 #

Proposal for a directive
Article 2 – paragraph 1 – point 2

(2) 'trade secret holder' means any ~~natural or legal person lawfully~~registered market operator legally established as being in control~~ling~~ of a trade secret;

Amendment 116 #

Proposal for a directive
Article 2 – paragraph 1 – point 3

(3) ‘infringer’ means any ~~natural or legal person who has unlawfully acquired,~~market operator who, either directly or through a third party, has gained access to a specific trade secret and has used it or disclosed ~~trade secrets;~~it to the commercial detriment of the secret’s holder.

Amendment 117 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

~~(4) ‘infringing goods’ means goods whose design, quality, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.~~deleted

Amendment 118 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

4) ‘infringing goods or services’ means goods ~~whose design,~~or services whose quality, ~~manuf~~charactueri~~ng proces~~stics or marketing ~~significantly~~ benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 119 #

Proposal for a directive
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 120 #

José BLANCO LÓPEZ

Proposal for a directive
Article 2 – paragraph 1 – point 4

4) ‘~~infringing~~unlawful goods’ means goods whose design, quality, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed, regardless of whether or not they are placed on the market.

Amendment 121 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ’infringing goods’ means ~~goods whose design~~products or services whose characteristics, quality, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 122 #

Proposal for a directive
Article 3 – paragraph 2 – introductory part

2. The acquisition of a trade secret without the consent of ~~the trade secret~~its holder shall be considered unlawful whe~~never carried out intentionally or with gross negligence by~~re there is:

Amendment 123 #

Proposal for a directive
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 124 #

Proposal for a directive
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 125 #

Proposal for a directive
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 126 #

Proposal for a directive
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 127 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) un~~authorised~~lawful access to or copy of any documents, objects, materials, substances orand electronic files~~, lawfully~~ under the ~~control of the trade secret holder, containing the trade secret or from which~~legally established control of the trade secret ~~can be deduced~~holder;

Amendment 128 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) unauthorised access to or copy 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 129 #

Proposal for a directive
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 130 #

José BLANCO LÓPEZ

Proposal for a directive
Article 3 – paragraph 2 – point a

a) unauthorised access to or copy of any trade secret, whether in the form of 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 131 #

Proposal for a directive
Article 3 – paragraph 2 – point b

~~(b) theft;~~deleted

Amendment 132 #

Proposal for a directive
Article 3 – paragraph 2 – point b

~~(b) theft;~~deleted

Amendment 133 #

Proposal for a directive
Article 3 – paragraph 2 – point c

~~(c) bribery;~~deleted

Amendment 134 #

Proposal for a directive
Article 3 – paragraph 2 – point c

~~(c) bribery;~~deleted

Amendment 135 #

Proposal for a directive
Article 3 – paragraph 2 – point d

~~(d) deception;~~deleted

Amendment 136 #

Proposal for a directive
Article 3 – paragraph 2 – point d

~~(d) deception;~~deleted

Amendment 137 #

Proposal for a directive
Article 3 – paragraph 2 – point e

~~(e) breach or inducement to breach a confidentiality agreement or any other duty to maintain secrecy;~~deleted

Amendment 138 #

Proposal for a directive
Article 3 – paragraph 2 – point e

(e) breach or inducement to breach a ~~confidentiality~~n agreement or ~~any other~~ duty to maintain ~~secrec~~confidentiality;

Amendment 139 #

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

Amendment 140 #

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

Amendment 141 #

Proposal for a directive
Article 3 – paragraph 2 – point f

(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices, for example, espionage, surveillance, infiltration.

Amendment 142 #

Aldo PATRICIELLO, Françoise GROSSETÊTE

Proposal for a directive
Article 3 – paragraph 3 – introductory part

3. ~~The use or~~Unauthorised 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 conditionstake place where, without the consent of its holder, a legal or natural person who has had access to trade documentation belonging to the firm or to other proprietary sources intentionally or as a result of gross negligence:

Amendment 143 #

Proposal for a directive
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 144 #

Proposal for a directive
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 145 #

Proposal for a directive
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 146 #

Proposal for a directive
Article 3 – paragraph 3 – point a

(a) has acquired ~~the~~and used a specific trade secret unlawfully;

Amendment 147 #

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) is in breach of ~~a confidentiality agreement or any other duty to maintain secrecy of the trade secret~~the limits and other terms established by a legal agreement to maintain confidentiality;

Amendment 148 #

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) is in breach of a confidentiality agreement or any other duty to ~~maintain secrecy~~limit the use or disclosure of the trade secret;

Amendment 149 #

Proposal for a directive
Article 3 – paragraph 3 – point c

~~(c) is in breach of a contractual or any other duty to limit the use of the trade secret.~~deleted

Amendment 150 #

Proposal for a directive
Article 3 – paragraph 3 – point c

Amendment 151 #

Proposal for a directive
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)

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 153 #

Proposal for a directive
Article 3 – paragraph 4

4. ~~The u~~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 from another person who was using or disclosing the trade secret unlawfully within the meaningbe taken to have started at the time when a natural person or market operator first made unauthorised use of it ofn the pmar~~agraph 3~~ket.

Amendment 154 #

Proposal for a directive
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 155 #

Proposal for a directive
Article 3 – paragraph 4

Amendment 156 #

Proposal for a directive
Article 3 – paragraph 5

Amendment 157 #

Proposal for a directive
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 158 #

Philippe DE BACKER, Cora van NIEUWENHUIZEN, Kaja KALLAS

Proposal for a directive
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 within the meaning of paragraph 3.

Amendment 159 #

Proposal for a directive
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 160 #

Proposal for a directive
Article 4 – paragraph 1 – introductory part

1. T~~he acquisition of t~~rade secrets shall not be considered ~~lawful when obtained by any of the following means~~to cover information obtained as a result of:

Amendment 161 #

Proposal for a directive
Article 4 – paragraph 1 – point a

(a) independent ~~discovery or creation~~technological discoveries and designs or independent manufacture of goods with properties that are identical or similar to those placed on the market by trade secret holders;

Amendment 162 #

Proposal for a directive
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~~a natural person or market operator with access to independent technological discoveries and designs and goods manufactured on the basis thereof;

Amendment 163 #

Proposal for a directive
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 164 #

Proposal for a directive
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 165 #

Proposal for a directive
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 166 #

Proposal for a directive
Article 4 – paragraph 1 – point c

~~(c) exercise of the right of workers representatives to information and consultation in accordance with Union and national law and/or practices;~~deleted

Amendment 167 #

Olle LUDVIGSSON

Proposal for a directive
Article 4 – paragraph 1 – point c

(c) workers representatives' acquisition and disclosure of trade secrets in the context of the exercise of the rights of workers representatives to information ~~and~~, consultation and participation in accordance with Union and national law and~~/or~~ practices;, and the collective defence of the interests of workers and employers, including co-determination."

Amendment 168 #

Proposal for a directive
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 169 #

Proposal for a directive
Article 4 – paragraph 1 – point c a (new)

(ca) the knowledge, qualifications and skills gained by employees in previous employment. Obligations of contracts and other actions that may limit the use of such knowledge shall comply with the principle of proportionality in the interest of innovation and free competition.

Amendment 170 #

Rolandas PAKSAS

Proposal for a directive
Article 4 – paragraph 1 – point c a (new)

(ca) performance of the accountability requirements imposed on boards of directors or supervisory boards;

Amendment 171 #

Proposal for a directive
Article 4 – paragraph 1 – point c a (new)

(ca) required or allowed by Union or national law.

Amendment 172 #

Proposal for a directive
Article 4 – paragraph 1 – point d

~~(c) any other practice which, under the circumstances, is in conformity with honest commercial practices.~~deleted

Amendment 173 #

Philippe DE BACKER, Angelika MLINAR

Proposal for a directive
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 174 #

Proposal for a directive
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 175 #

Proposal for a directive
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

(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 177 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) for making legitimate use of the right to freedom of expression and information, except in cases where such freedom is limited with a secrecy obligation following from an employment relationship;

Amendment 178 #

Proposal for a directive
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 179 #

Proposal for a directive
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 interestillegal activity to the competent authority;

Amendment 180 #

Proposal for a directive
Article 4 – paragraph 2 – point b

b) ~~for~~ the purpose of revealing an applicant’s misconduct, wrongdoing or illegal activity~~, provided~~ to an appropriate authority, provided that the accused, without being negligent, could assume 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 181 #

Proposal for a directive
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 182 #

Proposal for a directive
Article 4 – paragraph 2 – point d

~~(d) for the purpose of fulfilling a non- contractual obligation;~~deleted

Amendment 183 #

Proposal for a directive
Article 4 – paragraph 2 – point d

d~~) for the purpose of fulfilling a non- contractual obligation;~~eleted

Amendment 184 #

Proposal for a directive
Article 4 – paragraph 2 – point d

(d) for the purpose of fulfilling a legal obligation of non- contractual ~~obligation~~nature;

Amendment 185 #

Proposal for a directive
Article 4 – paragraph 2 – point e

~~(e) for the purpose of protecting a legitimate interest.~~deleted

Amendment 186 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) ~~for the purpo~~where a claimed infringement of a trade secret concerns, by chance, part or all of a set of ~~protecting a legitimate interest~~information obtained independently or where that information is the subject of a patent, copyright, industrial design or trade mark of a company.

Amendment 187 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) for the purpose of protecting a legitimate interest recognised by Union or national law.

Amendment 188 #

Proposal for a directive
Article 4 – paragraph 2 – point e

e) for the purpose of protecting a legitimate interest recognised by Union or national law.

Amendment 189 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) for the purpose of protecting a legitimate interest recognised by Union or national law.

Amendment 190 #

Rolandas PAKSAS

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) disclosure of a trade secret to members of boards of directors or supervisory boards of non-listed companies in the performance of accountability requirements.

Amendment 191 #

Proposal for a directive
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 192 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers to legitimate trade, competition and workers' mobility in the internal market.;

Amendment 193 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers, t~~o legitimate trade~~he restriction of competition and of workers' mobility in the internal market.;

Amendment 194 #

Proposal for a directive
Article 6 – paragraph 1 – point c

Amendment 195 #

Proposal for a directive
Article 7 – paragraph 1

Member States shall ~~ensure that~~lay down the rules applicable to limitation periods for substantive claims or bringing 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 two 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~~. Those rules shall determine when the limitation period begins to run, the duration of the limitation period and the circumstances under which the limitation period is interrupted or suspended. The duration of the limitation period shall not exceed six years.

Amendment 196 #

Proposal for a directive
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 ~~two~~four 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 197 #

Proposal for a directive
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~~ two 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 198 #

Proposal for a directive
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 199 #

Janusz LEWANDOWSKI

Proposal for a directive
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 200 #

Proposal for a directive
Article 7 – paragraph 1 a (new)

Member States shall be entitled to lay down rules determining the duly justified circumstances under which the limitation period may be interrupted or suspended.

Amendment 201 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1

Member States shall ensure that the parties, their ~~legal~~ representatives, court officials, witnesses, experts and any other person participating in the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, shall not be permitted to use or disclose any trade secret or alleged trade secret of which they have become aware as a result of such participation or access.

Amendment 202 #

Philippe DE BACKER, Cora van NIEUWENHUIZEN, Kaja KALLAS

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1

Member States shall ensure that the parties, their legal representatives, court officials, witnesses, experts and any other person participating in the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, shall not be permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have identified as confidential after consultation of the parties and of which they have become aware as a result of such participation or access.

Amendment 203 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – introductory part

The obligation referred to in the first subparagraph shall c~~ease to exis~~ontinue to apply until after the end of the legal proceedings, except in any of the following circumstances:

Amendment 204 #

Proposal for a directive
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

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 206 #

Proposal for a directive
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 by the trade secret holder, 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 207 #

Proposal for a directive
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 208 #

Proposal for a directive
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; , provided that each party, its respective lawyer or representative to the proceedings and court officials are given full access to such document;

Amendment 209 #

Proposal for a directive
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, on the understanding that there is no limitations to the access of each party involved or its representative;

Amendment 210 #

Proposal for a directive
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, provided that each of the parties, their lawyers or representatives in the proceedings, their experts, and court officials have been given full access to that document;

Amendment 211 #

Proposal for a directive
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 212 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access to hearings, when trade secrets may be disclosed, and their corresponding records or transcript. In exceptional circumstances, and subject to appropriate justification, the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried out only in the presence of the legal, provided that each of the parties, their lawyers or representatives ofin the p~~arties and authorised experts subject to the confidentiality obligation referred to in paragraph 1~~roceedings, their experts, and court officials have been given full access to those hearings, records, or transcripts;

Amendment 213 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access to hearings, when trade secrets may be disclosed, and their corresponding records or transcript~~. In exceptional circumstances, and subject to appropriate justification, the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried~~ , provided that each party, its respective lawyer or representative to the proceedings and court o~~nly in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1~~fficials are given full access to such hearing, records or transcript;

Amendment 214 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3

Where, because of the need to protect a trade secret or an alleged trade secret and pursuant to point (a) of the second subparagraph of this paragraph, the competent judicial authority decides that evidence lawfully in control of a party shall not be disclosed to the other party and where such evidence is material for the outcome of the litigation, the judicial authority may nevertheless authorise the disclosure of that information to the legal representatives of the other party and, where appropriate, to authorised experts subject to the confidentiality obligation referred to in paragraph 1.deleted

Amendment 215 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3

Amendment 216 #

Proposal for a directive
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 217 #

Proposal for a directive
Article 8 – paragraph 3

Amendment 218 #

Proposal for a directive
Article 9 – paragraph 1 – introductory part

1. Member States shall ensure that the competent judicial authorities may, ~~at the reques~~where there is proof of infringement of ~~the~~a trade secret ~~holder~~, order any of the following ~~interim and precautionary~~ measures against the ~~alleged~~ infringer:

Amendment 219 #

Proposal for a directive
Article 9 – paragraph 1 – point a

(a) the cessation of ~~or, as the case may be, the prohibition of the use or disclosur~~the use of the trade secret on and i~~nterim basis~~ts disclosure;

Amendment 220 #

Proposal for a directive
Article 9 – paragraph 1 – point b

(b) the prohibition to ~~produce, offer,~~ place on the market ~~or use infringing goods, or~~, import, export or store infringing goods ~~for those purposes~~;

Amendment 221 #

Proposal for a directive
Article 9 – paragraph 1 – point c

~~(c) the seizure or delivery of the suspected infringing goods, including imported goods, so as to prevent their entry into or circulation within the market.~~deleted

Amendment 222 #

Proposal for a directive
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 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 223 #

Proposal for a directive
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 224 #

Proposal for a directive
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 225 #

Proposal for a directive
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 226 #

Proposal for a directive
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 the specific circumstances of the case. This assessment shall include, where appropriate, value of the trade secret, the measures taken to protect the trade secret, or other specific features of the trade secret, the 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 227 #

Philippe DE BACKER, Cora van NIEUWENHUIZEN, Kaja KALLAS

Proposal for a directive
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 the value of the trade secret, the measures taken to protect the trade secret, the intentionality of the respondent in acquiring, disclosing or using of the trade secret, the 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 228 #

Proposal for a directive
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 229 #

Proposal for a directive
Article 10 – paragraph 3

3. Member States shall ensure that the interim measures referred to in Article 9 are revoked or otherwise cease to have effect, upon request of the respondent, if: (a) the applicant does not institute proceedings leading to a decision on the merits of the case before the competent judicial authority, within a reasonable period determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer; (b) in the meantime, the information in question no longer fulfils the requirements of point (1) of Article 2, for reasons that cannot be attributed to the respondent.deleted

Amendment 230 #

Proposal for a directive
Article 10 – paragraph 3 – introductory part

3. Member States shall ensure that the ~~interim measur~~competent judicial authorities are~~ferred to in Article 9 are revoked or otherwise cease to have effect, upon request of~~ able to take interim measures, once a court has found that trade rights have been infringed and once the court’s decision is final and binding, to stop further damage being suffered by the applicant and to secure appropriate compensation from the respondent~~, if:~~.

Amendment 231 #

Proposal for a directive
Article 10 – paragraph 3 – point a

(a) the applicant does not institute proceedings leading to a decision on the merits of the case before the competent judicial authority, within a reasonable period determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer;deleted

Amendment 232 #

Proposal for a directive
Article 10 – paragraph 3 – point a

Amendment 233 #

Proposal for a directive
Article 10 – paragraph 3 – point b

~~(b) in the meantime, the information in question no longer fulfils the requirements of point (1) of Article 2, for reasons that cannot be attributed to the respondent.~~deleted

Amendment 234 #

Proposal for a directive
Article 10 – paragraph 4

Amendment 235 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the competent judicial authorities may make the interim measures referred to in Article 9 subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the respondent and, where appropriate, by any other person affected by the measuresInterim measures concerning securities and assurances shall not be applied before a court has found unequivocally that a trade secret has been illegally infringed and established the date of the infringement.

Amendment 236 #

Proposal for a directive
Article 10 – paragraph 5

5. Where the interim measures are revoked on the basis of point (a) of paragraph 3, where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no unlawful acquisition, disclosure or use of the trade secret or threat of such conduct, the competent judicial authorities shall have the authority to order the applicant, upon request of the respondent or of an injured third party, to provide the respondent, or the injured third party, appropriate compensation for any injury caused by those measures.deleted

Amendment 237 #

Miriam DALLI

Proposal for a directive
Article 10 – paragraph 5 a (new)

5a. Once the competent judicial authorities are satisfied that a trade secret exists, that the applicant is the legitimate trade secret holder and that an unlawful acquisition, use or disclosure of the trade secret is imminent, the interim precautionary measures referred to in Article 9 of this Directive shall apply and no other measures foreseen in other Directives shall come into force.

Amendment 238 #

Proposal for a directive
Article 11 – paragraph 1 – introductory part

1. Member States shall ensure that, where a judicial decision ~~is taken~~ finding an unlawful acquisition, use or disclosure of a trade secret has become final, the competent judicial authorities may, at the request of the applicant order against the infringer:

Amendment 239 #

Proposal for a directive
Article 11 – paragraph 1 – point a

(a) the cessation of ~~or, as the case may be, the prohibition of the use or disclosure of the trade secret~~the use of the trade secret from the date on which the judicial decision becomes final and binding, and depriving infringing goods placed on the market of the qualities that can demonstrate that the infringement took place;

Amendment 240 #

Proposal for a directive
Article 11 – paragraph 1 – point b

(b) the ~~prohibition to produce, offer, place on~~withdrawal from the market o~~r use~~f infringing goods~~, or import, export or store infringing goods for those purposes~~ within six months of the date on which the judicial decision becomes final and binding;

Amendment 241 #

Proposal for a directive
Article 11 – paragraph 1 – point b a (new)

(ba) the destruction of all or some of the physical or electronic media in which the trade secret is stored or, where appropriate, the delivery up to the trade secret holder of those media;

Amendment 242 #

Proposal for a directive
Article 11 – paragraph 1 – point c

(c) ~~the adoption of the appropriate corrective measures with regard to the infringing good~~injunctions concerning compensation for market losses.

Amendment 243 #

Proposal for a directive
Article 11 – paragraph 2 – point a

~~a) a declaration of infringement;~~deleted

Amendment 244 #

Proposal for a directive
Article 11 – paragraph 2 – point a

~~(a) a declaration of infringement;~~deleted

Amendment 245 #

Proposal for a directive
Article 11 – paragraph 2 – point a

~~(a) a declaration of infringement;~~deleted

Amendment 246 #

Proposal for a directive
Article 11 – paragraph 2 – point d

(d) ~~destruction~~withdrawal of the infringing goods ~~or, where appropriate, their withdrawal from~~from the market and their distribution to charitable organisations under conditions to be laid down by the judicial authorities in order to ensure that the goods in question do not re-enter the market~~, provide~~ and that such action does not undermine the protection of the trade secret in question;

Amendment 247 #

Proposal for a directive
Article 11 – paragraph 2 – point d a (new)

(da) as a last resort, destruction of the goods;

Amendment 248 #

Proposal for a directive
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 holder~~applicant of all or part of those documents, objects, materials, substances and electronic files.

Amendment 249 #

Proposal for a directive
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 holder~~applicant of all or part of those documents, objects, materials, substances and electronic files.

Amendment 250 #

Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1

Member States shall ensure that, when ordering the withdrawal of the infringing goods from the market, the judicial authorities may order, at the request of the trade secret holder, that the goods be delivered up to holder or to charitable organisations under conditions to be determined by the judicial authorities aimed at ensuring that the goods in question do not re-enter the market.deleted

Amendment 251 #

Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 a (new)

When considering a request for corrective measures, the seriousness of the infringement, the remedies to be imposed, and the interests of third parties shall be brought into an appropriate relationship as determined by the principle of proportionality.

Amendment 252 #

Proposal for a directive
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 253 #

Proposal for a directive
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~~shall be required to take into account the specific circumstances of the case. This assessment shall include, where appropriate, 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 254 #

Proposal for a directive
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, the intentionality of the infringer in acquiring, disclosing or using of 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 255 #

Proposal for a directive
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 256 #

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2

When the competent authorities limit the duration of the measure referred to in ~~point (a) of~~ Article 11(1), such duration shall be sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, disclosure or use of the trade secret.

Amendment 257 #

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2

~~When~~Member states shall ensure that the competent authorities limit the length of duration of the measure referred to in point (a) of Article 11(1), ~~such duration shall~~accordingly, as to be sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, disclosure or use of the trade secret and as to avoid the creation of unjustified obstacles to fair competition, innovation and labour mobility.

Amendment 258 #

Proposal for a directive
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 259 #

Aldo PATRICIELLO, Françoise GROSSETÊTE

Proposal for a directive
Article 12 – paragraph 2

2. Member States shall ensure that the measures referred to in ~~in point (a) 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

Member States shall provide that, at the request of the ~~person liable to be subject to the measures provided for in Article 11~~trade 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

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 262 #

Proposal for a directive
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 263 #

Proposal for a directive
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 disclosing the trade secret unlawfully;

Amendment 264 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point b

b) ~~execution of the measures in question would cause that person disproportionate harm~~does not affect English version; linguistic amendment to French text;

Amendment 265 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point c

c) pecuniary compensation to the injured party appears reasonably satisfactory. When pecuniary compensation is ordered instead of the order referred to in Article 11(1), such pecuniary compensation shall not exceed the amount of any royalties or fees which would have been calculated on the basis of established criteria, had the accused requested authorisation to use the trade secret in question for the period preceding the judicial decision on the infringement of that secret.

Amendment 266 #

Proposal for a directive
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 267 #

Miriam DALLI

Proposal for a directive
Article 12 – paragraph 3 a (new)

3a. In accepting a request for the adoption of the injunctions and corrective measures where the competent judicial authorities are satisfied 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, the measures referred to in Article 11 of this Directive shall apply and no other equivalent measures foreseen in other Directives shall come into force.

Amendment 268 #

Proposal for a directive
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.

Amendment 269 #

Proposal for a directive
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~~appropriate to the prejudice suffered as a result of the infringement. 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 270 #

Olle LUDVIGSSON

Proposal for a directive
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. This option also applies when unlawful acquisition, use and disclosure of trade secrets occurs after the employment of an employee has terminated.

Amendment 271 #

Proposal for a directive
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 272 #

Proposal for a directive
Article 13 – paragraph 1 a (new)

1a. In accordance with their national law and practice, Member States shall restrict the liability for damages of employees towards their employers for the unlawful acquisition, use or disclosure of a trade secret of the employer.

Amendment 273 #

Proposal for a directive
Article 13 – paragraph 1 a (new)

1a. 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. This option also applies when unlawful acquisition, use and disclosure of trade secrets occurs after the employment of an employee has terminated.

Amendment 274 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

When setting the damages, the competent judicial authorities shall take into account all appropriate 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 o~~when ther t~~han economic factors, such as~~rade secret holder is a natural person, the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret.

Amendment 275 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

When setting the damages, the competent judicial authorities shall take into account all ~~appropriate~~relevant 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.

Amendment 276 #

Proposal for a directive
Article 16

For the purpose of promoting cooperation, including the exchange of information, among Member States and between Member States and the Commission, each Member State shall designate one or more national correspondents for any question relating to the implementation of the measures provided for by this Directive. It shall communicate the details of the national correspondent(s) to the other Member States and the Commission.Article 16 deleted Exchange of information and correspondents

Amendment 277 #

Proposal for a directive
Article 17 – paragraph 1

1. By XX XX 20XX [three years after the end of the transposition period], the European ~~Union Trade Marks and Designs Agency, in the context of the activities of the European Observatory on Infringements of Intellectual Property Rights,~~Commission shall prepare an initial report on the litigation trends regarding the unlawful acquisition, use or disclosure of trade secrets pursuant to the application of this Directive.

Amendment 278 #

Proposal for a directive
Article 17 – paragraph 2

2. By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive and submit it to the European Parliament and the Council. This report shall take due account of the report ~~prepared by the European Observatory on Infringements of Intellectual Property Rights~~on the litigation trends and shall evaluate the impact of this Directive in particular on the levels of open innovation, collaborative research and labour mobility.

Amendment 279 #

Proposal for a directive
Article 17 – paragraph 2

2. By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive and submit it to the European Parliament and the Council. This report shall take due account of the report prepared by the European Observatory on Infringements of Intellectual Property Rights and shall in particular evaluate the impact of this Directive on the levels of open innovation, collaborative research and labour mobility.

Amendment 280 #

Proposal for a directive
Article 17 – paragraph 2

2. By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive, including on its possible deleterious effects on fundamental rights and on workers' mobility as well as possible further improvements on innovation cooperation with a special attention to the effects on small and medium-sized enterprises, and submit it to the European Parliament and the Council. This report shall take due account of the report prepared by the European Observatory on Infringements of Intellectual Property Rights.

Amendment 50 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widely known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 51 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of ~~formal~~ intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access ~~and exploit the knowledge that is valuable to the entity and not widely known~~that is valuable to the entity and not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question and by other persons who might obtain economic value from its disclosure or use. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 52 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy and gives a competitive advantage. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development and determines their innovative performance. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access to commercially valuable information and exploit the knowledge that is valuable to the entity and not widely known to the society as a whole. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses~~, irrespective of their size,~~ value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies, either long-term or more short-lived. Especially small and medium-sized enterprises (SMEs) value and rely on trade secrets more, because the use of other formal intellectual property rights tend to be more expensive and SMEs often do not have sufficient specialized human or financial resources to record, manage and protect the intellectual property rights. By protecting such a wide range of know-how and confidential commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 53 #

Proposal for a directive
Recital 2

(2) Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. It 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 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 partiesSuch an environment conducive to intellectual creation and innovation and where employment mobility is ensured is also important for employment growth and improving competitiveness of the Union economy. Trade secrets may have a role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation.

Amendment 54 #

Philippe DE BACKER, Cora van NIEUWENHUIZEN, Kaja KALLAS

Proposal for a directive
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 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. Existing Union legal framework against unlawful acquisition, use or disclosure of trade secrets by third parties is fragmented in 28 different laws, which creates barriers to effective functioning of internal market, while also reducing the trust of representatives of businesses and consumers.

Amendment 55 #

Proposal for a directive
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 56 #

Proposal for a directive
Recital 3

(3) ~~Innovative b~~Businesses are ~~increasingly~~ exposed to dishonest practices aiming at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage, breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalisation, increased outsourcing, longer supply chains, increased use of information and communication technology. contribute to increasing the risk of those practices. The unlawful acquisition, use or disclosure of a trade secret compromises the ~~legitimate trade secret holder’s ability~~ability of the person lawfully controlling the trade secret to obtain first mover returns using the outputs of its ~~innovative~~ efforts. Without effective and comparable legal means for defending trade secrets across the Union, incentives to engage in innovative cross-border activity within the internal market are undermined and trade secrets are unable to fulfil their potential as drivers of economic growth and jobs. Thus, innovation and creativity are discouraged and investment diminishes, affecting the smooth functioning of the internal market and undermining its growth enhancing potentialbusinesses have less security to engage in collaboration with cross-border partners, which undermine the internal market.

Amendment 57 #

Proposal for a directive
Recital 4

(4) ~~International efforts taken in the framework of the World Trade Organisation to address this problem led to the conclusion of t~~The Agreement on trade-related aspects of intellectual property (the TRIPS Agreement)~~. It~~ contains, inter alia, provisions on the protection of trade secrets against their unlawful acquisition, use or disclosure by third parties, which are common international standards. All Member States, as well as the Union itself, are bound by this Agreement which was approved by Council Decision 94/800/EC5. __________________ 5 Council Decision of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p.1).

Amendment 58 #

Proposal for a directive
Recital 4

(4) International efforts taken in the framework of the World Trade Organisation to address this problem led to the conclusion of the Agreement on trade- related aspects of intellectual property (the TRIPS Agreement). It contains, inter alia, provisions on the protection of trade secrets against their unlawful acquisition, use or disclosure by third parties, which are common international standards. All Member States, as well as the Union itself, are bound by this Agreement which was approved by Council Decision 94/800/EC5. In order to protect trade secrets against misappropriation, some Member States have legislation in place, however some Member states have not defined trade secrets and does not have binding legislation against misappropriation of trade secrets, which creates gaps and barriers to effectively functioning internal market. __________________ 5 Council Decision of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p.1).

Amendment 59 #

Proposal for a directive
Recital 5

(5) ~~Notwithstanding the TRIPS Agreement, t~~There are important differences in the Member States legislation as regards the protection of trade secrets against their unlawful acquisition, use or disclosure by other persons. Thus, for example, not all Member States have adopted national definitions of trade secrets and/or unlawful acquisition, use or disclosure of a trade secret, so that the scope of protection is not readily accessible and differs throughout Member States. Furthermore, there is no consistency as regards the civil law remedies available in case of unlawful acquisition, use or disclosure of trade secrets as cease and desist orders are not always available in all Member States against third parties who are not competitors of the legitimate trade secret holder. Divergences also exist across the Member States with respect to the treatment of third parties who acquired the trade secret in good faith but subsequently come to learn, at the time of use, that their acquisition derived from a previous unlawful acquisition by another party.

Amendment 60 #

Proposal for a directive
Recital 7

(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on ~~stolen or otherwise~~trade secrets that have been proved to be stolen or unlawfully acquired ~~trade secrets~~. On the whole, such differences create a prejudice to the proper functioning of the internal market.

Amendment 61 #

Philippe DE BACKER, Cora van NIEUWENHUIZEN, Angelika MLINAR

Proposal for a directive
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 and 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 62 #

Proposal for a directive
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 63 #

Proposal for a directive
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 an~~ and undisclosed know-how where there is ~~both~~ a legitimate interest in keeping confidential, a commercial value of this information because it is keep 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 and by competitors.

Amendment 64 #

Proposal for a directive
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 65 #

Proposal for a directive
Recital 9

(9) It is also important to identify the circumstances under which legal protection is justified. For this reason, it is necessary to establish the conduct and practices which are to be regarded as unlawful acquisition, use or disclosure of a trade secret. Disclosure by Union’s institutions and bodies or national public authorities of business-related information they hold pursuant to the obligations of Regulation (EC) No 1049/2001 of the European Parliament and of the Council6 or to other rules on the access to documents should not be considered unlawful disclosure of a trade secret. Similarly, any information which disclosure is required by Union or national rules or by public authorities should not fall within the scope of this directive. It should also be the case of the protecting of legitimate public interest, such as consumer protection, the protection of workers, the protection of human, animal or plant life, the protection of the environment and of urban environment, the safeguard of fundamental rights, including freedom of expression and information, the prevention of unfair competition. __________________ 6Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p.43).

Amendment 66 #

Proposal for a directive
Recital 9

Amendment 67 #

Proposal for a directive
Recital 10

(10) In the interest of innovation and to foster competition, the provisions of this Directive ~~should~~must not create any exclusive right on the know-how or information protected as trade secrets. These provisions may not be invoked solely in order to restrict competition. 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.

Amendment 68 #

Proposal for a directive
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. This Directive does not constitute an intellectual property right. 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.

Amendment 69 #

Proposal for a directive
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 70 #

Philippe DE BACKER, Angelika MLINAR, Kaja KALLAS

Proposal for a directive
Recital 10

(10) In the interest of innovation and to foster competition, the provisions of this Directive and its implementation 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.

Amendment 71 #

Proposal for a directive
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 72 #

Proposal for a directive
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)

(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 74 #

Proposal for a directive
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 ~~conduct~~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 75 #

Proposal for a directive
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~~, including workers mobility, without jeopardising other objectives and principles of public interest, such as consumer protection, health and environment protection. 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, use or disclosure of the trade secret as well as the impact of such conduct. 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 76 #

Proposal for a directive
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 conduct resulting in the unlawful acquisition, use or disclosure of the trade secret as well as the impact of such conduct. 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 77 #

Proposal for a directive
Recital 11 a (new)

(11a) With the introduction and implementation of a uniform definition of trade secrets, and with the introduction and implementation of uniform rules for the protection of trade secrets within the internal market, other measures that directly or indirectly may restrict the sharing and use of knowledge and the hiring and mobility of labour, should respect the principle of proportionality in the interest of innovation and free competition.

Amendment 78 #

Proposal for a directive
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 79 #

Proposal for a directive
Recital 12 a (new)

(12a) The increased use of web online services to conduct business and research, storing more confidential data in virtual storage places, increased use of e- commerce and the digitalization as a whole calls for a harmonized legislation across the Union, which will protect misappropriated use of trade secrets, which in turn will ensure trust and protection among businesses and consumers and will promote the formation of the Digital Single Market, which is one of the fundaments of effectively functioning internal market.

Amendment 80 #

Proposal for a directive
Recital 13

(13) In the interest of legal certainty and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party. However, the protection against unlawful acquisition, disclosure and use of trade secrets should not restrict employees' mobility and become a burden in their efforts to find a job. This need to be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive: this period should not be longer than a year. Generally, it is necessary to have a proper balance between the employees who create new ideas and the companies who provide the resources and the environment for the development of these ideas. This Directive should reflect this balance.

Amendment 81 #

Proposal for a directive
Recital 13

(13) In the interest of preserving a smooth functioning of the internal market of research and innovation, of legal certainty and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party.

Amendment 82 #

Proposal for a directive
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 83 #

Proposal for a directive
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~~ a balance between appropriate safeguards ensuring the right to a fair trial, and 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 for persons not connected with the parties, or to publish only the non- confidential elements of judicial decisions. 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 84 #

Proposal for a directive
Recital 15

(15) Unlawful acquisition 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.deleted

Amendment 85 #

Proposal for a directive
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 86 #

Proposal for a directive
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 duration~~, when circumstances require a limitation in time,~~ 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 87 #

Proposal for a directive
Recital 17

(17) A trade secret may be unlawfully used to design, manufacture or market 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 where unlawful acquisition has been demonstrated and when the trade secret in question has a significant impact on the quality, value or price of the resulting good or on reducing the cost, facilitating or speeding up its manufacturing or marketing processes, it is important to empower judicial authorities to order appropriate measures with a view to ensure that those goods 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 88 #

Proposal for a directive
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 on reducing the cost, facilitating or speeding up its manufacturing or marketing processes, it is important to empower judicial authorities to order appropriate measures with a view to ensure that those goods 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 89 #

Proposal for a directive
Recital 19

(19) In order to avoid that a person who knowingly, or with reasonable grounds for knowing, unlawfully acquires, uses or discloses a trade secret benefit from such conduct and to ensure that the injured trade secret holder, to the extent possible, is placed in the position in which he or she would have been had that conduct not taken place, it is necessary to provide for adequate compensation of the prejudice suffered as a result of the unlawful conduct. The amount of damages awarded to the injured holder of the trade secret should take account of all appropriate factors, such as loss of earnings incurred by the trade secret holder or unfair profits made by the infringer and, whe~~re appropriate~~n the trade secret holder is a natural person, any moral prejudice caused to the trade secret holder. As an alternative, for example where, considering the intangible nature of trade secrets, it would be difficult to determine the amount of the actual prejudice suffered, the amount of the damages might be derived from elements such as the royalties or fees which would have been due had the infringer requested authorisation to use the trade secret in question. The aim is not to introduce an obligation to provide for punitive damages, but to ensure compensation based on an objective criterion while taking account of the expenses incurred by the holder of the trade secret, such as the costs of identification and research.

Amendment 90 #

Proposal for a directive
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 91 #

Proposal for a directive
Recital 22

(22) In order to facilitate the uniform application of the measures for the protection of trade secrets, it is appropriate to ~~provide for~~use existing systems of cooperation and ~~the~~ exchange of information as between Member States, on the one hand, and between the Member States and the Commission on the other~~, in particular by creating a network of correspondents designated by Member States~~. In addition, in order to review whether these measures fulfil their intended objective, the Commission~~, assisted, as appropriate, by the European Observatory on the Infringements of Intellectual Property Rights,~~ should examine the application of this Directive and the effectiveness of the national measures taken.

Amendment 92 #

Proposal for a directive
Recital 22

(22) In order to facilitate the uniform application of the measures for the protection of trade secrets, it is appropriate to provide for systems of cooperation and the exchange of information as between Member States, on the one hand, and between the Member States and the Commission on the other, in particular by creating a network of correspondents designated by Member States. In addition, in order to review whether these measures fulfil their intended objective, the Commission~~, assisted, as appropriate, by the European Observatory on the Infringements of Intellectual Property Rights,~~ should examine the application of this Directive and the effectiveness of the national measures taken.

Amendment 93 #

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence. Thus the provisions of this Directive should not apply, if the disclosure of undisclosed information is in the overriding public interest or can be considered as a fundamental right.

Amendment 94 #

Proposal for a directive
Recital 23

(23) Th~~is Directive~~e implementation of this Directive must ensure that it respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.

Amendment 95 #

Proposal for a directive
Recital 27

(27) This Directive should not affect the application of competition law rules, in particular Articles 101 and 102 of the Treaty on the Functioning of the European Union. The measures provided for in this Directive should not be used to unfairly restrict competition ~~undul~~, delay access to the internal market, and create barriers to labour mobility in a manner contrary to that Treaty.

Amendment 96 #

Proposal for a directive
Recital 27 a (new)

(27a) This Directive will not affect the application of the freedom of movement for workers and the freedom of establishment. It does also not affect the right of workers' representatives to the acquisition and disclosure of trade secrets in the context of the exercise of their rights to information, consultation and participation in accordance with Union and national law and practises.

Amendment 97 #

Proposal for a directive
Recital 27 a (new)

(27a) The measures provided for in this Directive and their implementation must not affect the application of the freedom of movement for workers and the freedom of establishment, in particular Articles 48 and 49 of the Treaty on the Functioning of the European Union and Article 15 of the Charter of fundamental rights of the European Union.

Amendment 98 #

Proposal for a directive
Recital 28

(28) The measures adopted to protect trade secrets against their unlawful acquisition, disclosure and use should not affect the application of any other relevant law in other areas including protection of the environment and environmental liability, consumer protection, health and safety requirements, health protection, intellectual property rights, privacy, access to documents and information, and the law of contract. However, where the scope of application of Directive 2004/48/EC of the European Parliament and of the Council8 and the scope of this Directive overlap, this Directive takes precedence as lex specialis. __________________ 8Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L157, 30.4.2004, p.45).

Amendment 99 #

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down rules on the protection against the unlawful acquisition, disclosure and use of trade secrets. Member States may provide for higher protection against the unlawful acquisition, use or disclosure of trade secrets.

source: 546.727

2015/02/06 IMCO 212 amendments...

Amendment 100 #

Proposal for a directive
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 and with the aim of acquiring an economic gain or advantage or of causing economic detriment to the person lawfully controlling it or with gross negligence, by a person who is found to meet any of the following conditions:

Amendment 101 #

Proposal for a directive
Article 3 – paragraph 3 – introductory part

Amendment 102 #

Kaja KALLAS, Dita CHARANZOVÁ, Antanas GUOGA

Proposal for a directive
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 103 #

Proposal for a directive
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 104 #

Proposal for a directive
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, with intent~~ionally~~ or with gross negligence, by a person who is found to meet any of the following conditions:

Amendment 105 #

Kaja KALLAS, Dita CHARANZOVÁ, Antanas GUOGA

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) is in breach of a confidentiality agreement or any other duty ~~to maintain secrecy of~~not to disclose the trade secret;

Amendment 106 #

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) is in breach of a confidentiality agreement or any other duty to ~~maintain secrecy~~limit the use or disclosure of the trade secret;

Amendment 107 #

Kaja KALLAS, Robert ROCHEFORT, Dita CHARANZOVÁ, Antanas GUOGA

Proposal for a directive
Article 3 – paragraph 3 – point c

Amendment 108 #

Philippe JUVIN

Proposal for a directive
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 109 #

Marc TARABELLA

Proposal for a directive
Article 3 – paragraph 3 a (new)

3a. The obligations laid down in paragraph 3 cannot 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 110 #

Proposal for a directive
Article 3 – paragraph 3 a (new)

(3a) The conditions set out in paragraph 3 shall not limit the use by employees of the knowledge and skills honestly acquired in the exercise of their duties.

Amendment 111 #

Proposal for a directive
Article 3 – paragraph 4

Amendment 112 #

Kaja KALLAS, Dita CHARANZOVÁ, Robert ROCHEFORT, Antanas GUOGA

Proposal for a directive
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 in cases where the person engaging in this activity was, or depending on the circumstances, should have been, aware of the fact that unlawful use had been made of the trade secret.

Amendment 113 #

Proposal for a directive
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 114 #

Andreas SCHWAB, Lara COMI, Ildikó GÁLL-PELCZ

Proposal for a directive
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, under the circumstances, should have known that the trade secret was used unlawfully within the meaning of paragraph 3.

Amendment 115 #

Proposal for a directive
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 116 #

Proposal for a directive
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 not under a legal obligation to limit the acquisition of the trade secret;

Amendment 117 #

Proposal for a directive
Article 4 – paragraph 1 – point c

(c) ~~exercise of the right of~~Acquisition and disclosure of trade secrets by worker's representatives in the context of the exercise of their rights to information ~~and~~, consultation and participation in accordance with Union and national law and~~/or~~ practices; , and the collective defence of the interests of workers and employers, including co- determination.

Amendment 118 #

Proposal for a directive
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 119 #

Proposal for a directive
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 120 #

Proposal for a directive
Article 4 – paragraph 1 – point c

(cd) any other practice which, under the circumstances, is in conformity with honest commercial practices. or is required or authorised by national laws, EU regulations or public institutions fulfilling their mandate;

Amendment 121 #

Proposal for a directive
Article 4 – paragraph 1 – point c a (new)

(ca) acquired by the knowledge, qualifications and skills of employees obtained in previous employment, which are not covered by the definition of trade secrets as provided for in Article 2. Contractual obligations and any other actions limiting the use of such knowledge shall comply with the principle of proportionality in the interest of innovation and free competition;

Amendment 122 #

Proposal for a directive
Article 4 – paragraph 1 – point d a (new)

(da) through the knowledge and skills honestly acquired by employees in the exercise of their duties.

Amendment 123 #

Proposal for a directive
Article 4 – paragraph 1 – point d a (new)

(da) where disclosure is clearly in the general public interest.

Amendment 124 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

1 a. 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, without prejudice to any rights of the trade secret holder.

Amendment 125 #

Proposal for a directive
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 when~~The 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 126 #

Proposal for a directive
Article 4 – paragraph 2 – introductory part

2. Member States shall ensure that, for the purpose of protecting a legitimate interest recognised by Union or national law, there shall be no entitlement to the application for the measures, procedures and remedies provided for in this Directive when the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases:

Amendment 127 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) ~~for making legitimat~~whenever the alleged acquisition, use or disclosure to the trade use ofcret is protected by the right to freedom of expression and information;

Amendment 128 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) for making ~~legitimate~~ use of the right to freedom of expression and information;

Amendment 129 #

Proposal for a directive
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 130 #

Proposal for a directive
Article 4 – paragraph 2 – point b

(b) for the purpose of revealing ~~an applicant’s~~ misconduct, fraud, wrongdoing or, illegal or unethical 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 131 #

Kaja KALLAS, Dita CHARANZOVÁ, Robert ROCHEFORT, Antanas GUOGA

Proposal for a directive
Article 4 – paragraph 2 – point b

(b) for the purpose of revealing to the authorities or supervisory bodies an applicant’'s misconduct, wrongdoing or illegal activity, provided that the alleged acquisition, use or disclosure of the trade secret was strictly limited and necessary for such revelation and that the respondent acted in the public interest;

Amendment 132 #

Proposal for a directive
Article 4 – paragraph 2 – point b

(b) for the purpose of revealing a~~n 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 133 #

Proposal for a directive
Article 4 – paragraph 2 – point c

(c) the trade secret was disclosed by workers to their legal representatives as part of the legitimate exercise of their representative functions, provided that the contract governing those functions contains a confidentiality clause;

Amendment 134 #

Proposal for a directive
Article 4 – paragraph 2 – point c

(c) the trade secret was disclosed by workers when fulfilling the terms of the employment contract, or to their representatives as part of the legitimate exercise of their representative functions;

Amendment 135 #

Proposal for a directive
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~~in accordance with national and Union law;

Amendment 136 #

Proposal for a directive
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; in accordance with Union and national law.

Amendment 137 #

Proposal for a directive
Article 4 – paragraph 2 – point c a (new)

(ca) when fulfilling the terms of the employment contract of workers;

Amendment 138 #

Kaja KALLAS, Dita CHARANZOVÁ, Antanas GUOGA

Proposal for a directive
Article 4 – paragraph 2 – point c a (new)

(ca) its disclosure is required under Union or national law;

Amendment 139 #

Proposal for a directive
Article 4 – paragraph 2 – point d

~~(d) for the purpose of fulfilling a non- contractual obligation;~~deleted

Amendment 140 #

Proposal for a directive
Article 4 – paragraph 2 – point d

~~(d) for the purpose of fulfilling a non- contractual obligation;~~deleted

Amendment 141 #

Proposal for a directive
Article 4 – paragraph 2 – point d

(d) for the purpose of fulfilling a non- contractual or ethical obligation;

Amendment 142 #

Proposal for a directive
Article 4 – paragraph 2 – point d

(d) for the purpose of fulfilling a non- contractual obligation arising from a judicial decision or from the law;

Amendment 143 #

Proposal for a directive
Article 4 – paragraph 2 – point e

~~(e) for the purpose of protecting a legitimate interest.~~deleted

Amendment 144 #

Proposal for a directive
Article 4 – paragraph 2 – point e

~~(e) for the purpose of protecting a legitimate interest.~~deleted

Amendment 145 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) for the purpose of protecting a public health, public order (ordre public), public safety or the fundamental rights and freedoms of others, or any other legitimate interest.

Amendment 146 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) for the purpose of protecting public order and general interest, including protection of human, animal or plant life or health or to avoid serious prejudice to the environment.

Amendment 147 #

Andreas SCHWAB, Ildikó GÁLL-PELCZ

Proposal for a directive
Article 4 – paragraph 2 – point e b (new)

(eb) the trade secret is requested and/or disclosed by a public institution according to their mandate, as required or allowed by national Union law .

Amendment 148 #

Proposal for a directive
Article 4 – paragraph 2 a (new)

2a. The acquisition, use or 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, without prejudice to any rights of the trade secret holder.

Amendment 149 #

Proposal for a directive
Article 5 – paragraph 2 – point a

(a) be ~~fair and equitable~~applied in accordance with the principles of conscientiousness and fairness;

Amendment 150 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) is proportionate to the actual economic detriment for the holder of the trade secret due to the alleged unlawful access, disclosure or use of it;

Amendment 151 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers to legitimate trade and workers´ mobility in the internal market.

Amendment 152 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers to legitimate trade, competition and worker mobility in the internal market.

Amendment 153 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers to legitimate trade, competition and worker mobility in the internal market.

Amendment 154 #

Proposal for a directive
Article 6 – paragraph 1 – point b

(b) avoids the creation of barriers, t~~o legitimate trade~~he restriction of competition and of workers’ mobility in the internal market.

Amendment 155 #

Proposal for a directive
Article 6 – paragraph 1 – point c

(c) provides for safeguards against their abuse and ensures that, in case defendants are wrongfully accused of unlawful action, they shall be fully compensated for any detriment suffered due to unfounded legal action.

Amendment 156 #

Proposal for a directive
Article 6 – paragraph 1 – point c a (new)

(ca) the proof that the trade secret was unlawfully acquired and that none of the exceptions mentioned in Article 4 of this Directive applies, shall be borne by the person lawfully in control of the trade secret.

Amendment 157 #

Proposal for a directive
Article 6 – paragraph 1 – point c a (new)

(ca) ensures that the trade secret holder has responsibility for proving that the information in question is a trade secret and that this information has been acquired unlawfully.

Amendment 158 #

Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1 – introductory part

Member States shall ensure that where competent judicial authorities determine that a claim concerning the unlawful acquisition, disclosure or use of a trade secret is ~~manifestly~~ unfounded and the applicant is found to have initiated the legal proceedings in bad faith with the purpose of unfairly delaying or restricting the respondent’'s access to the market or otherwise intimidating or harassing the respondent, or to prevent the disclosure of information of public interest, such competent judicial authorities shall be entitled to take the following measures:

Amendment 159 #

Proposal for a directive
Article 6 – paragraph 2 – point a (new)

(a) provide for full compensation for economic damage and losses incurred, if any, as well as potential moral prejudice to the alleged unlawful accessor, acquirer or user of trade secrets.

Amendment 16 #

Proposal for a directive
–

The Committee on Internal Market and Consumer Protection calls on the Committee on Legal Affairs, as the committee responsible, to propose rejection of the Commission proposal.

Amendment 160 #

Proposal for a directive
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~~two years 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 161 #

Proposal for a directive
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 onfive years but not more than ~~two~~six 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 162 #

Andreas SCHWAB, Ildikó GÁLL-PELCZ

Proposal for a directive
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 163 #

Proposal for a directive
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 two~~three 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 164 #

Proposal for a directive
Article 7 – paragraph 1 a (new)

In the case of legal action against former employees and employees, the limitation period should not exceed one year in order not to affect or prevent employee mobility.

Amendment 165 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1

Member States shall ensure that the parties, their legal representatives, court officials, witnesses, experts and any other person participating in the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, shall not be permitted to use or disclose any trade secret or alleged trade secret of which they have become aware as a result of such participation or access. Member States may also allow competent judicial authorities to take such measures on their own initiative.

Amendment 166 #

Anna Maria CORAZZA BILDT

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1

Member States shall ensure that the parties, their legal representatives, court officials, witnesses, experts and any other person participating in the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, shall not be permitted to use or disclose any trade secret or alleged trade secret of which they have become aware as a result of such participation or access. Member States may also allow competent judicial authorities to take such measures on their own initiative.

Amendment 167 #

Proposal for a directive
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 168 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – point a

(a) where in the course of the proceedings, the alleged trade secret is found not to fulfil the requirements set out in point (1) of Article 2;

Amendment 169 #

Andreas SCHWAB

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – point a

(a) where in the course of the proceedings, the alleged trade secret is found not to fulfil the requirements set in point (1) of Article 2 in a final judgement;

Amendment 17 #

Proposal for a directive
Recital 1

(1) Businesses and non-commercial research institutions invest in acquiring, developing and applying know-how and information~~, which is the currency of the knowledge economy~~. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment~~, which is the underlying motivation for business research and development~~. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widely known~~. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as~~ (a trade secret). Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations ~~and therefore are particularly important for research and development and innovative performance~~.

Amendment 170 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – point b

~~(b) where over time, the information in question becomes generally known among or readily accessible to persons within the circles that normally deal with that kind of information.~~deleted

Amendment 171 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2 – point b a (new)

(ba) where new national or Union law requires the disclosure or use of the information concerned.

Amendment 172 #

Proposal for a directive
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 173 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a

(a) to restrict access to any document containing trade secrets or alleged trade secrets submitted by the parties or third parties, in whole or in part, to a limited number of persons, provided that at least one person from each party, its respective lawyers or representative to the proceedings and court officials are given full access to such document;

Amendment 174 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a

(a) to restrict access to any document containing trade secrets or alleged trade secrets submitted by the parties or third parties, in whole or in part to a limited number of persons, provided that at least one person from each party, its legal representatives and court officials are given full access to such document;

Amendment 175 #

Jiří POSPÍŠIL

Proposal for a directive
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; to a limited number of persons, provided that at least one person from each party or its representative to the proceedings have been given full access to such document

Amendment 176 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a

(a) to restrict access of third parties to any document containing trade secrets submitted by the parties or third parties, in whole or in part; provided that both parties involved or their representatives have access to them,

Amendment 177 #

Proposal for a directive
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, provided that both parties involved or their representative have access to them;

Amendment 178 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access of third parties to hearings, when trade secrets may be disclosed, and their corresponding records or transcript~~. In exceptional circumstances, and subject to appropriate justification, the competent judicial authorities may restrict the parties’ access to those hearings an~~ provided that both parties involved or~~der~~ the~~m to be carried out only in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1;~~ir representatives have access to them.

Amendment 179 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access to hearings, when trade secrets or alleged trade secrets may be disclosed, and their corresponding records or transcript~~. In exceptional circumstances, and subject to appropriate justificati~~ to a limited number of persons, the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried out only in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1provided that at least one person from each party, its legal representatives and court officials are given full access to them;

Amendment 18 #

Proposal for a directive
Recital 1

Amendment 180 #

Jiří POSPÍŠIL

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access to hearings, when trade secrets may be disclosed, and their corresponding records or transcript. In exceptional circumstances, and subject to appropriate justification, the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried out only in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1;, provided that at least one person from each party or its representative to the proceedings have been given full access to such hearing, record or transcript.

Amendment 181 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b

(b) to restrict access to hearings, when trade secrets or alleged trade secrets may be disclosed, and their corresponding records or transcript~~. In exceptional circumstances, and subject to appropriate justificati~~, to a limited number of persons, ~~the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried out only in the presence of the legal~~provided that at least one person from each party, its respective lawyer or representative~~s of~~ to the p~~arties and authorised experts subject to the confidentiality obligation referred to in paragraph 1~~roceedings and court officials are given full access to such document;

Amendment 182 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point c

(c) to make publicly available a non- confidential version of any judicial decision, in which the passages containing information confirmed as trade secrets have been re~~mov~~dacted.

Amendment 183 #

Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3

Amendment 184 #

Proposal for a directive
Article 8 – paragraph 3

3. When deciding on the granting or the rejection of ~~the application referred to in paragraph 2~~measures for preservation of a trade secret and assessing ~~its~~their proportionality, the competent judicial authorities shall take into account 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 185 #

Anna Maria CORAZZA BILDT

Proposal for a directive
Article 8 – paragraph 3

3. When deciding on the granting or the rejection of ~~the application~~ measures for prefser~~red to in paragraph 2~~vation of a trade secret and assessing ~~its~~ proportionality, the competent judicial authorities shall take into account 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 186 #

Proposal for a directive
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 187 #

Proposal for a directive
Article 8 – paragraph 3

Amendment 188 #

Proposal for a directive
Article 9

1. Member States shall ensure that the competent judicial authorities may, at the request of the trade secret holder, order any of the following interim and precautionary measures against the alleged infringer: (a) the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret on an interim basis; (b) the prohibition to produce, offer, place on the market or use infringing goods, or import, export or store infringing goods for those purposes; (c) the seizure or delivery of the suspected infringing goods, including imported goods, so as to prevent their entry into or circulation within the market. 2. Member States shall ensure that the judicial authorities may make the continuation of the alleged unlawful acquisition, use or disclosure of a trade secret subject to the lodging of guarantees intended to ensure the compensation of the trade secret holder.Article 9 deleted Interim and precautionary measures

Amendment 189 #

Proposal for a directive
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 matter 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 19 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of ~~formal~~ intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access ~~and exploit the knowledge that is valuable to the entity and not widely known~~that is valuable to the entity and not generally known among or readily accessible to persons that deal with the kind of information in question and by other persons who might obtain economic value from its disclosure or use. Such know-how and business information that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 190 #

Proposal for a directive
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

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 192 #

Proposal for a directive
Article 10 – paragraph 3

Amendment 193 #

Proposal for a directive
Article 10 – paragraph 3 – introductory part

3. Member States shall ensure that the ~~interim~~provisional measures referred to in Article 9 are revoked or otherwise cease to have legal effect, upon request of the respondent, if:

Amendment 194 #

Proposal for a directive
Article 10 – paragraph 4

Amendment 195 #

Proposal for a directive
Article 10 – paragraph 5

Amendment 196 #

Proposal for a directive
Article 11 – paragraph 2 – point a

(a) a declaration of ~~infringement~~unlawful access, disclosure or use;

Amendment 197 #

Proposal for a directive
Article 11 – paragraph 2 – point c

(c) depriving the ~~infringing~~unlawful goods of the~~ir infringing quality~~ quality that derived from the use of the trade secret;

Amendment 198 #

Proposal for a directive
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 199 #

Proposal for a directive
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, the conduct of the infringer in acquiring, disclosing or using of the trade secret, the behaviour of the infringer during the entire course of the legal proceedings, 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 20 #

Proposal for a directive
Recital 1 a (new)

(1a) Information that may qualify as trade secret may also be of direct importance to society as a whole, for example, in the field of health, environmental and food safety policies, and access to this type of information for public institutions should not be hampered by the mere fact of this type of information being classified as ´trade secret´. Similarly, special provision must be made for the protection of whistle-blowers, on which subject new EU-legislation remains essential.

Amendment 200 #

Proposal for a directive
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 weigh all interests at stake, in~~to account~~cluding the value of ~~the~~a 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~~impact of the disclosure for the businesses concerned on the one hand and the public interests calling for disclosure o~~r us~~n the of the ~~trade secret,~~r hand, and in particular 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 201 #

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2

~~When~~Member states shall ensure that the competent authorities limit the ~~duration~~length of the measure referred to in point (a) of Article 11(1)~~, such duration shall~~ accordingly, as to be sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, disclosure or use of the trade secret and as to avoid the creation of unjustified obstacles to fair competition, innovation and labour mobility.

Amendment 202 #

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2

~~When~~Member States shall ensure that the competent authorities limit the duration of the measure referred to in point (a) of Article 11(1), s~~uch duration shall be~~o that it is sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, disclosure or use of the trade secret.

Amendment 203 #

Proposal for a directive
Article 12 – paragraph 2

2. Member States shall ensure that the measures referred to in in point (a) of Article 11(1) are revoked or otherwise cease to have legal 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 204 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – introductory part

Member States shall provide that, at the request of the p~~erson liable to be subject to~~arties involved in case of application of the measures provided for in Article 11, 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 205 #

Nicola DANTI

Proposal for a directive
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 11~~holder of the trade secret, the competent judicial authority may order pecuniary compensation to be paid to the injured party instead of applying those measures set out in Article 11, if all the following conditions are met:

Amendment 206 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point a

Amendment 207 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 1 – point b

(b) execution of the measures in question would cause that person ~~disproportionate harm~~, or members of his or her immediate family, disproportionate harm in the form of serious disgrace or substantial material damage;

Amendment 208 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 2

Amendment 209 #

Proposal for a directive
Article 12 – paragraph 3 – subparagraph 2 a (new)

Member States shall ensure that, in cases where a party, out of ignorance, fails to make use of the rights to which it is entitled, the competent judicial authorities are obliged to inform such parties about the courses of action open to them.

Amendment 21 #

Proposal for a directive
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 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 210 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States shall ensure that the competent judicial authorities, on the application of the injured party, order the ~~infringer~~unlawful accessor, acquirer or user of trade secret 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 unlawful access, disclosure or use of the trade secret.

Amendment 211 #

Marc TARABELLA

Proposal for a directive
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 shall limit the liability for damages and interest 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 212 #

Proposal for a directive
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.

Amendment 213 #

Proposal for a directive
Article 13 – paragraph 1

Amendment 214 #

Proposal for a directive
Article 13 – paragraph 1 a (new)

Amendment 215 #

Proposal for a directive
Article 13 – paragraph 1 a (new)

Amendment 216 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

2. When setting the damages, the competent judicial authorities shall take into account all ~~appropriate~~relevant factors, such as the negative economic consequences, including lost profits, which the injured party has suffered, and any unfair profits made by the infringer and, in appropriate cases, ~~elements o~~when ther t~~han economic factors, such as~~rade secret holder is a natural person, the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret.

Amendment 217 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

2. When setting the damages, the competent judicial authorities shall take into account all appropriate 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.

Amendment 218 #

Proposal for a directive
Article 14

1. Member States shall ensure that, in legal proceedings instituted for the unlawful acquisition, use or disclosure of a trade secret, the competent judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including publishing it in full or in part. 2. Any measure referred to in paragraph 1 of this Article shall preserve the confidentiality of trade secrets as provided for in Article 8. 3. In deciding whether to order a publicity measure and assessing its proportionality, the competent judicial authorities shall take into account the possible harm that such measure may cause to the privacy and reputation of the infringer, whenever the infringer is a natural person, as well as the value of the trade secret, the conduct of the infringer in acquiring, disclosing or using the trade secret, the impact of the unlawful disclosure or use of the trade secret, and the likelihood of further unlawful use or disclosure of the trade secret by the infringer.Article 14 deleted Publication of judicial decisions

Amendment 219 #

Proposal for a directive
Article 14 – paragraph 3

3. In deciding whether to order ~~a publicity measure~~one of the measure referred to in paragraph 1, and assessing its proportionality, the competent judicial authorities shall take into account twhe ~~possible harm that such measure may cause to the privacy and reput~~ther publication of theat inf~~ringer, whenever the infringer is a natural person, as well as the value of the trade secret,~~ormation would be justified, in particular in the light of the following criteria: the conduct of the infringer in acquiring, disclosing or using the trade secret, the value of the trade secret and the impact of the unlawful acquisition, disclosure or use of the trade secret, and the likelihood of further unlawful use or disclosure of the trade secret by the infringer.

Amendment 22 #

Proposal for a directive
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 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. The dissemination of knowledge and information must be considered essential to ensuring dynamic, positive and equal business development opportunities, especially for small and medium-sized enterprises.

Amendment 220 #

Proposal for a directive
Article 14 – paragraph 3

3. In deciding whether to order a publicity measure and assessing its proportionality, the competent judicial authorities shall take into account the possible harm that such a measure may cause to the privacy and reputation of the infringer and to members of his or her immediate family, whenever the infringer is a natural person, as well as the value of the trade secret, the conduct of the infringer in acquiring, disclosing or using the trade secret, the behaviour of the infringer during the entire course of the legal proceedings, the impact of the unlawful disclosure or use of the trade secret, and the likelihood of further unlawful use or disclosure of the trade secret by the infringer.

Amendment 221 #

Proposal for a directive
Article 15 – paragraph 3 a (new)

The sanctions provided for shall be enforced within a reasonable time.

Amendment 222 #

Proposal for a directive
Article 16

Amendment 223 #

Proposal for a directive
Article 16

Exchange of information and For the purpose of promoting cooperation, including the exchange of information, among Member States and between Member States and the Commission, each Member State shall designate one or more national correspondents for any question relating to the implementation of the measures provided for by this Directive. It shall communicate the details of the national correspondent(s) to the other Member States and the Commission.Article 16 deleted correspondents

Amendment 224 #

Proposal for a directive
Article 17 – paragraph 1

Amendment 225 #

Proposal for a directive
Article 17 – paragraph 2

2. . By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive, covering also its possibly harmful impact on fundamental rights and worker mobility and any possible improvements regarding cooperation for innovation and submit it to the European Parliament and the Council. This report shall take due account of the report prepared by the European Observatory on Infringements of Intellectual Property Rights.

Amendment 226 #

Proposal for a directive
Article 17 – paragraph 2

2. By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive and submit it to the European Parliament and the Council. This report shall take due account of the report ~~prepared by the European Observatory on Infringements of Intellectual Property Rights~~on the litigation trends, and shall evaluate the impact of the directive in particular on the levels of open innovation, collaborative research and labour mobility.

Amendment 227 #

Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by XX XX 20XX [2436 months after the date of adoption of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

Amendment 23 #

Proposal for a directive
Recital 2

(2) Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. It 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 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 partiesSuch an environment conducive to intellectual creation and innovation and where employment mobility is ensured is also important for employment growth and improving competitiveness of the Union economy. Trade secrets have a role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation. Nevertheless this role should not to be the detriment of innovation.

Amendment 24 #

Proposal for a directive
Recital 2

(2) ~~Open i~~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~~best promoted in an open environment. The role of open software for the development of additional, more targeted software applications, is a good example in this respect. Trade secrets may, however, have a role to play in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation, if an open environment is not sustainable. 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 25 #

Proposal for a directive
Recital 3

(3) Innovative businesses are increasingly exposed to dishonest practices aiming at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage, breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalisation, increased outsourcing, longer supply chains, increased use of information and communication technology, contribute to increasing th~~e risk of those practices~~at risk. The unlawful acquisition, use or disclosure of a trade secret compromises the legitimate trade secret holder’s ability to obtain first mover returns using the outputs of its innovative efforts. Without effective ~~and comparable~~ legal means for defending trade secrets across the Union, incentives to engage in innovative cross- border activity within the internal market are undermined and trade secrets are unable to fulfil their potential as drivers of economic growth and jobs. ~~Thus, innovation and creativity are discouraged and investment diminishes, affecting the smooth functioning of the internal market and undermining its growth enhancing potential.~~

Amendment 26 #

Proposal for a directive
Recital 3

(3) ~~Innovative b~~Businesses are ~~increasingly~~ exposed to dishonest practices aiming at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage, breach of confidentiality requirements, whether from within or from outside of the Union. ~~Recent developments, such as globalisation, increased outsourcing, longer supply chains, increased use of information and communication technology contribute to increasing the risk of those practices.~~ The unlawful acquisition, use or disclosure of a trade secret compromises the ~~legitimate trade secret holder’s ability~~ability of the person lawfully controlling the trade secret to obtain first mover returns using the outputs of its ~~innovative~~ efforts. Without effective and comparable legal means for defending trade secrets across the Union, ~~incentives to engage in innovative cross-border activity within the internal market are undermined and trade~~businesses will be less securets are unable to fulfil their potential as drivers of economic growth and jobs. Thus, innovation and creativity are discouraged and investment diminishes, affecting the smooth functioning of the internal market and undermining its growth enhancing potential when engaging in collaboration with cross-border partners which would undermine the internal market.

Amendment 27 #

Proposal for a directive
Recital 4

Amendment 28 #

Proposal for a directive
Recital 5

Amendment 29 #

Proposal for a directive
Recital 7

(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on ~~stolen or otherwise~~trade secrets that have been proven to be stolen or unlawfully acquired ~~trade secrets~~. On the whole, such differences create a prejudice to the proper functioning of the internal market.

Amendment 30 #

Marlene MIZZI

Proposal for a directive
Recital 7 a (new)

(7a) The objective of this Directive should be to promote innovative companies, to ensure fair and honest competition and to create a secure environment for innovation and research, while at the same time safeguarding the rights of journalists, whistle-blowers, workers and researchers, without limiting corporate accountability and the transparency of corporate data.

Amendment 31 #

Proposal for a directive
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 an~~ and undisclosed know-how where there is ~~both~~ a legitimate interest in keeping confidential, a commercial value of the confidential information 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, and by competitors.

Amendment 32 #

Proposal for a directive
Recital 8

Amendment 33 #

Proposal for a directive
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 34 #

Proposal for a directive
Recital 9 a (new)

(9a) For the purposes of this Directive, and in accordance with Regulation (EU) No 536/2014 of the European Parliament and of the Council on clinical trials on medicinal products for human use, in general the data included in a clinical study report should not be considered commercially confidential once a marketing authorisation has been granted, the procedure for granting the marketing authorisation has been completed or the application for marketing authorisation has been withdrawn. In addition, the main characteristics of a clinical trial, the conclusion on Part I of the assessment report for the authorisation of a clinical trial, the decision on the authorisation of a clinical trial, the substantial modification of a clinical trial, and the clinical trial results including reasons for temporary halt or early termination, in general, should not be considered a trade secret.

Amendment 35 #

Philippe JUVIN

Proposal for a directive
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. 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 36 #

Proposal for a directive
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 37 #

Proposal for a directive
Recital 10 a (new)

(10a) The marketing of many products, in particular during public procurement procedures, increasingly requires the communication to regulatory and administrative authorities of confidential data, the origination of which involves a considerable effort. The disclosure of all or part of such data by authorities and access to it by third parties should not lead to the unfair use of such data on the market.

Amendment 38 #

Proposal for a directive
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, such as consumer protection, health and environmental protection. This includes proportionality regarding measures which directly or indirectly may restrict sharing and use of knowledge and labour mobility. 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, use or disclosure of the trade secret as well as the impact of such conduct. 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 39 #

Proposal for a directive
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 conduct~~all relevant circumstances resulting in the unlawful acquisition, use or disclosure of the trade secret as well as the impact of such ~~conduct~~acquisition, 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 40 #

Proposal for a directive
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, use disclosure of such information on grounds relating to public health, public order, public safety or the fundamental rights and freedoms of others. In this respect, the measures and remedies ensure that competent judicial authorities weigh all interests at stake, including the value of a trade secret, the impact of the disclosure for the businesses concerned on the one hand and the public interests calling for disclosure ofn the ~~trade secret as well as the impact of such conduct~~other hand. 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 41 #

Proposal for a directive
Recital 11 a (new)

(11a) With the introduction and implementation of a uniform definition of trade secrets, and of uniform rules for the protection of trade secrets within the Internal Market. Any other measures that directly or indirectly may restrict the sharing and use of knowledge and the hiring and mobility of labour should respect the principle of proportionality in the interest of innovation and free competition.

Amendment 42 #

Proposal for a directive
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 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. Lawful use of freedom of expression and information must be interpreted with particular regard for the specific context and the nature of the information disclosed.

Amendment 43 #

Proposal for a directive
Recital 12

Amendment 44 #

Proposal for a directive
Recital 12 a (new)

(12a) This Directive should not limit the ability of public authorities to carry out their regulatory functions. Therefore this directive should provide for a general exemption regarding information necessary for public authorities to fulfil their legal obligations as supervisors. This is important in sectors such as the chemical industry, where public authorities need access to information on chemicals in products, in the food sector, where public authorities need access to information to toxicological studies, and in any other sector where public authorities rely on information that could be considered to contain trade secrets.

Amendment 45 #

Proposal for a directive
Recital 13

(13) In the interest of preserving both a smooth functioning of the internal market for research and innovation and of legal certainty, and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period, following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party.

Amendment 46 #

Proposal for a directive
Recital 13

(13) In the interest of legal certainty and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party. However, protection against unlawful acquisition, disclosure and use of trade secrets should not be to the detriment of employee mobility and reduce their employability. This must be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive. This period should be no longer than a year. This Directive must strike the right balance between the employees who create new ideas and the companies who provide the resources and the environment for the development of these ideas.

Amendment 47 #

Andreas SCHWAB, Lara COMI, Ildikó GÁLL-PELCZ

Proposal for a directive
Recital 15

Amendment 48 #

Proposal for a directive
Recital 15

(15) Unlawful acquisition 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, including when such trade secret is used for the provision of services. 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 49 #

Proposal for a directive
Recital 15

Amendment 50 #

Proposal for a directive
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, wthe~~n 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 51 #

Proposal for a directive
Recital 17

Amendment 52 #

Proposal for a directive
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 53 #

Proposal for a directive
Recital 19

Amendment 54 #

Kaja KALLAS, Dita CHARANZOVÁ, Robert ROCHEFORT, Filiz HYUSMENOVA

Proposal for a directive
Recital 20

Amendment 55 #

Proposal for a directive
Recital 20

Amendment 56 #

Proposal for a directive
Recital 22

(22) In order to facilitate the uniform application of the measures for the protection of trade secrets, it is appropriate to provide for systems of cooperation and the exchange of information as between Member States, on the one hand, and between the Member States and the Commission on the other, in particular by creating a network of correspondents designated by Member States. In addition, in order to review whether these measures fulfil their intended objective, the Commission, assisted, as appropriate, by the European Observatory on the Infringements of Intellectual Property Rights, should examine the application of this Directive and the effectiveness of the national measures taken.deleted

Amendment 57 #

Proposal for a directive
Recital 22

Amendment 58 #

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence. The provisions of the Directive should therefore not be considered applicable where the information is disclosed in the overriding public interest or in compliance with a fundamental right.

Amendment 59 #

Proposal for a directive
Recital 23

(23) The implementation of this Directive must ensure respect~~s the~~ of fundamental rights and observesation of the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.

Amendment 60 #

Lara COMI

Proposal for a directive
Recital 25

(25) Since the objective of this Directive, to achieve a smooth functioning internal market through the establishment of a sufficient and comparable level of redress across the internal market in case of unlawful acquisition, use or disclosure of a trade secret, cannot be sufficiently achieved by Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that same Article, this Directive does not go beyond what is necessary in order to achieve that objective. This directive is without prejudice to the right of Member States to maintain or introduce more restrictive measures, in accordance with the Treaty and this Directive, regarding the acquisition, use and disclosure of trade secrets.

Amendment 61 #

Proposal for a directive
Recital 27

(27) This Directive should not affect the application of competition law rules, in particular Articles 101 and 102 of the Treaty on the Functioning of the European Union. The measures provided for in this Directive should not be used to unfairly restrict competition ~~undul~~, delay access to the internal market or and create barriers to labour mobility in a manner contrary to that Treaty.

Amendment 62 #

Proposal for a directive
Recital 27 a (new)

(27a) This Directive is without prejudice to the freedom of movement and establishment of workers.

Amendment 63 #

Proposal for a directive
Recital 27 a (new)

(27a) The measures provided for in this Directive and their implementation should not affect the freedom of movement of workers not the freedom of establishment, in particular Articles 48 and 49 of the Treaty on the Functioning of the European Union and Article 15 of the Charter of Fundamental Rights of the European Union.

Amendment 64 #

Proposal for a directive
Recital 28

Amendment 65 #

Ivan JAKOVČIĆ

Proposal for a directive
Recital 28 a (new)

(28a) Given that candidate countries and potential candidates are working with Union bodies, those countries should also bring their national provisions into line with this Directive.

Amendment 66 #

Proposal for a directive
Recital 28 a (new)

(28a) This Directive should be without prejudice to the autonomy of social partners and their right to enter into collective agreements in accordance with national law, traditions and practices and respecting the provisions of the Treaty on the Functioning of European Union.

Amendment 67 #

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down rules on the protection against the unlawful acquisition, disclosure and use of ~~trade secret~~undisclosed know- how and business information (trade secrets), without the authorisation of the natural or legal persons that are lawfully controlling them and in a manner that is contrary to honest commercial practices.

Amendment 68 #

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down rules on the protection against the ~~unlawful~~ acquisition, disclosure and use of ~~trade secret~~undisclosed know- how and business information (trade secrets), without the authorisation of the natural or legal persons that are lawfully controlling them and in a manner that is contrary to honest commercial practices.

Amendment 69 #

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down rules on the protection against the unlawful acquisition, disclosure and use of trade secrets. The acquisition, use and exploitation of trade secrets shall be considered lawful where so provided under national or EU legislation or by public authorities in the exercise their remit, since the protection of trade secrets must not undermine the general public interest. In such cases, therefore, such information shall not fall within the scope of this Directive.

Amendment 70 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

Member States may provide, in compliance with the provisions of the Treaties, for more precise definitions and rules and a comprehensive description of what constitutes lawful acquisition, use and disclosure of trade secrets, provided compliance with Articles 4, 5, 6, 7, 8(1), second subparagraph, 8(3), 8(4), 9(2), 10, 12 and 14(3) of this Directive is ensured.

Amendment 71 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

Any information of which disclosure is required by public authorities within the contest of their mandate and in accordance with national rules or Union laws shall not fall within the scope of this Directive.

Amendment 72 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

This Directive shall be without prejudice to the autonomy of the social partners and their right to collective bargaining in accordance with national law, traditions and practices and while respecting the provisions of the Treaty.

Amendment 73 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

This Directive shall be governed by the principle of minimum harmonisation. Member States may provide, in compliance with the Treaties, for more precise definitions, rules and comprehensive descriptions of what constitutes lawful acquisition, use and disclosure of trade secrets.

Amendment 74 #

Kaja KALLAS, Dita CHARANZOVÁ, Robert ROCHEFORT, Filiz HYUSMENOVA, Antanas GUOGA

Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part

(1) ‘'trade secret’' means ~~information~~undisclosed know- how and business information bearing commercial value which meets all of the following requirements:

Amendment 75 #

Proposal for a directive
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 76 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part

(1) ‘trade secret’ means information which ~~meets all of~~, taken as a whole, meets the following requirements:

Amendment 77 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, ~~generally~~ known among or readily accessible to persons within the circles that normally deal with the kind of information in question and who could obtain economic value from its unlawful disclosure or use;

Amendment 78 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

(b) has significant commercial value because it is secret and because the disclosure of it will be significantly detrimental to the legitimate economic interest of the person lawfully controlling it;

Amendment 79 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b

(b) has ~~commercial value because it is secret;~~ actual or potential commercial value in its own right because it is not generally known or easily identifiable, using the appropriate means, by other persons who could obtain economic value from its misappropriation or use; it may be data, a formula, a model, a compilation, a program, a system , a method, a technique or a process;

Amendment 80 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c

(c) has been subject to reasonable and demonstrable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. These reasonable steps shall be assessed by the competent judicial authorities on the basis, notably, of the legitimate use of technical and contractual means by the person lawfully in control of the information.

Amendment 81 #

Andreas SCHWAB

Proposal for a directive
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 information~~trade secret holder, to keep it secret.

Amendment 82 #

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c a (new)

(ca) its disclosure is not in the public interest or is not required or allowed under Union or Member State law.

Amendment 83 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ~~’infringing~~'unlawful goods’' means goods that are placed on the market whose design, quality, manufacturing process or marketing ~~significantly~~are demonstrated to benefits from trade secrets unlawfully acquired, used or disclosed. (The amendment replacing 'infringing' with 'unlawful' applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment 84 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ‘infringing goods or services’ means goods ~~whose design,~~or services whose quality, ~~manuf~~charactueri~~ng proces~~stics or marketing ~~significantly~~ benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 85 #

Lara COMI

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ‘infringing goods~~’ means good~~ or services’ means goods or services whose design, quality, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 86 #

Proposal for a directive
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 87 #

Proposal for a directive
Article 2 – point 4 a (new)

(4a)‘misappropriation’ means the acquisition, disclosure or use of a trade secret by another natural or legal person without the consent of the holder, unless the trade secret was obtained from another person who is entitled to disclose trade secrets.

Amendment 88 #

Proposal for a directive
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 with the aim of acquiring an economical gain or of causing economic detriment to person lawfully controlling it or with gross negligence by:

Amendment 89 #

Proposal for a directive
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 90 #

Kaja KALLAS, Dita CHARANZOVÁ, Robert ROCHEFORT, Antanas GUOGA

Proposal for a directive
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 91 #

Proposal for a directive
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 92 #

Proposal for a directive
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 with intent~~ionally~~ or with gross negligence by:

Amendment 93 #

Proposal for a directive
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, with the effect of gaining an advantage or causing financial loss, by:

Amendment 94 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) unauthorised access to ~~or copy of~~the trade secret, which may include any documents, objects, materials, substances or electronic files containing the trade secret, lawfully under the control of ~~the trade secret holder, containing the trade secret or from which~~ the trade secret ~~can be deduced~~holder;

Amendment 95 #

Proposal for a directive
Article 3 – paragraph 2 – point a

Amendment 96 #

Proposal for a directive
Article 3 – paragraph 2 – point c a (new)

(ca) threat;

Amendment 97 #

Proposal for a directive
Article 3 – paragraph 2 – point c b (new)

(cb) error (the trade secret holder or third parties having been misled);

Amendment 98 #

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

Amendment 99 #

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

source: 549.103

2015/03/26 JURI 134 amendments...

Amendment 100 #

Virginie ROZIÈRE

Proposal for a directive
Article 2 – point 1 – introductory part

(1) ‘trade secret’ means know-how and commercial information which meets all of the following requirements:

Amendment 101 #

Proposal for a directive
Article 2 – point 1 – point b

(b) has actual or potential commercial value because it is secret;

Amendment 102 #

Proposal for a directive
Article 2 – point 1 – point b

(b) has independent and significant commercial value because it is secret and because its disclosure will be significantly detrimental to the legitimate economic interest of the person lawfully controlling the trade secret;

Amendment 103 #

Proposal for a directive
Article 2 – point 1 – point b

b) has actual or potential commercial value because it is secret;

Amendment 104 #

Proposal for a directive
Article 2 – point 1 – point c

Amendment 105 #

Proposal for a directive
Article 2 – point 1 – point c

(c) has been subject to reasonable steps under the circumstances, by the person ~~lawfully in control of~~who holds the information, to keep it secret;

Amendment 106 #

Mary HONEYBALL, Catherine STIHLER

Proposal for a directive
Article 2 – point 1 – point c a (new)

(ca) its protection against disclosure is not contrary to public interest;

Amendment 107 #

Proposal for a directive
Article 2 – point 1 – point c a (new)

(ca) its disclosure is not in the public interest or is not required under Union or Member State law.

Amendment 108 #

Proposal for a directive
Article 2 – point 1 – point c a (new)

(ca) its disclosure is not required or authorised by national or EU law.

Amendment 109 #

Virginie ROZIÈRE

Proposal for a directive
Article 2 – point 1 – point c a (new)

c a) they are legitimately kept secret;

Amendment 110 #

Proposal for a directive
Article 2 – paragraph 1 – point 2

(2) ‘trade secret holder’ means any natural and/or legal person lawfully controlling a trade secret;

Amendment 111 #

Proposal for a directive
Article 2 – paragraph 1 – point 3

(3) ‘infringer’ means any natural and/or legal person who has unlawfully acquired, used or disclosed trade secrets;

Amendment 112 #

Proposal for a directive
Article 2 – paragraph 1 – point 3

(3) ‘infringer’ means any natural or legal person who has unlawfully ~~acquired, used or disclosed trade secrets~~or in a manner contrary to honest commercial practices acquired, used or disclosed trade secrets, thereby enabling the causation of damages to or actually damaging the interests of the trade secret holder;

Amendment 113 #

Proposal for a directive
Article 2 – paragraph 1 – point 3

(3) ‘~~infring~~breacher’ means any natural or legal person who has intentionally unlawfully acquired, used or disclosed trade secrets for purposes of commercial nature and in a manner contrary to honest commercial practices;

Amendment 114 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ‘infringing goods’ means goods whose design, quality, features, manufacturing process or marketing significantly benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 115 #

Felix REDA, Felix REDA, Pascal DURAND

Proposal for a directive
Article 2 – paragraph 1 – point 4

(4) ‘~~infringing~~unlawful goods’ means goods that are placed on the market whose design, quality, manufacturing process or marketing ~~significantly~~are demonstrated to benefits from trade secrets unlawfully acquired, used or disclosed.

Amendment 116 #

Proposal for a directive
Article 2 – point 4

4) ‘~~infringing goods’ means goods whose design, quality~~unlawful goods or services’ means goods placed on the market whose form quality, characteristics, manufacturing process or marketing ~~significantly~~have benefitsted from trade secrets unlawfully acquired, used or disclosed.

Amendment 117 #

Virginie ROZIÈRE

Proposal for a directive
Article 3 – paragraph 1

1. Member States shall ensure that trade secret holders who have suffered harm as a result of the acquisition, use or disclosure of a trade secret are entitled to apply for the measures, procedures and remedies provided for in this Directive in order to prevent, or obtain redress for, the unlawful acquisition, use or disclosure of a trade secret.

Amendment 118 #

Proposal for a directive
Article 3 – paragraph 1

1. Member States shall ~~ensure that~~guarantee the right of trade secret holders ~~are entitled~~ to apply for the measures, procedures and remedies provided for in this Directive in order to prevent, or obtain redress for, the unlawful acquisition, use or disclosure of a trade secret.

Amendment 119 #

Kostas CHRYSOGONOS

Proposal for a directive
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 120 #

Proposal for a directive
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~~, in particular in the following cases:

Amendment 121 #

Proposal for a directive
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 122 #

Proposal for a directive
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 orand with ~~gross negligence~~the aim of acquiring an economic gain or of causing economic detriment to the trade secret holder by:

Amendment 123 #

Proposal for a directive
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 124 #

Proposal for a directive
Article 3 – paragraph 2 – introductory part

Amendment 125 #

Proposal for a directive
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 with the aim of acquiring an economical gain or of causing economic harm to the person lawfully controlling it or with gross negligence by:

Amendment 126 #

Angel DZHAMBAZKI

Proposal for a directive
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 in~~tentionally or with gross negligence by~~ the following cases:

Amendment 127 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) unauthorised access to or copy or taking 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 where the person carrying out any of those acts knew or should, under the circumstances, have known that he was engaged in unauthorised acquisition of that trade secret;

Amendment 128 #

Proposal for a directive
Article 3 – paragraph 2 – point a

Amendment 129 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) ) unauthorised access to ~~or copy of any~~, multiplication or copy of, or any similar action in relation to 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 130 #

Proposal for a directive
Article 3 – paragraph 2 – point a

(a) unauthorised access to or copy or taking 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 where the person carrying out any of these acts knew or should, under the circumstances, have known that he was engaged in unauthorised acquisition of that trade secret;

Amendment 131 #

Proposal for a directive
Article 3 – paragraph 2 – point a

Amendment 132 #

Proposal for a directive
Article 3 – paragraph 2 – point b

~~(b) theft;~~deleted

Amendment 133 #

Proposal for a directive
Article 3 – paragraph 2 – point e

(e) breach or, inducement or complicity to breach a confidentiality agreement or any other duty to maintain secrecy;

Amendment 134 #

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

Amendment 135 #

Mary HONEYBALL

Proposal for a directive
Article 3 – paragraph 2 – point f

~~(f) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.~~deleted

Amendment 136 #

Proposal for a directive
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, with the effect of gaining an advantage or causing financial loss:

Amendment 137 #

Kostas CHRYSOGONOS

Proposal for a directive
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 138 #

Proposal for a directive
Article 3 – paragraph 3 – introductory part

Amendment 139 #

Proposal for a directive
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 orand with ~~gross negligence~~the aim of acquiring an economical gain or of causing economic detriment to the trade secret holder, by a person who is found to meet any of the following conditions:

Amendment 140 #

Proposal for a directive
Article 3 – paragraph 3 – introductory part

Amendment 141 #

Proposal for a directive
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 and with the aim of acquiring an economic gain or advantage or of causing economic harm to the person lawfully controlling the trade secret or with gross negligence, by a person who is found to meet any of the following conditions:

Amendment 142 #

Proposal for a directive
Article 3 – paragraph 3 – point а

a) has acquired the trade secret unlawfully or in a manner contrary to honest commercial practices;

Amendment 143 #

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) is in breach of a legally valid confidentiality agreement ~~or any other duty~~according to national and EU law to maintain secrecy of the trade secret;

Amendment 144 #

Proposal for a directive
Article 3 – paragraph 3 – point c

(c) is in breach of a contractual or any other duty to ~~lim~~prohibit the use of the trade secret for any other purposes than those expressly set out by the trade secret holder.

Amendment 145 #

Proposal for a directive
Article 3 – paragraph 3 – point c

Amendment 146 #

Proposal for a directive
Article 3 – paragraph 3 – point c a (new)

ca) has legitimately come into the possession of or become aware of the trade secret in the context of an employment relationship and uses this trade secret or discloses it during the ongoing employment relationship or after this relationship has ended.

Amendment 147 #

Proposal for a directive
Article 3 – paragraph 3 – point c a (new)

c a) 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 148 #

Proposal for a directive
Article 3 – paragraph 3 – subparagraph 1 a (new)

3a. The obligations laid down in this paragraph 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 149 #

Proposal for a directive
Article 3 – paragraph 3 a (new)

3a. The provisions set out in paragraph 3 shall not limit the use by employees of the knowledge and skills honestly acquired in the exercise of their duties.

Amendment 150 #

Proposal for a directive
Article 3 – paragraph 4 a (new)

4a. The company shall define and notify its employees in advance of the specific facts, information, decisions and data to which access has been limited and which thus constitute a trade secret.

Amendment 151 #

Proposal for a directive
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, in cases where the person engaging in this activity was, or depending on the circumstances, should have been, aware of the fact that unlawful use had been made of the trade secret.

Amendment 152 #

Proposal for a directive
Article 4 – title

Lawful acquisition~~, use and disclosure~~ of trade secrets and exceptions

Amendment 153 #

Proposal for a directive
Article 4 – paragraph 1 – point a a (new)

(aa) a commercial contract between the person who is legally in control of the trade secret and an acquirer;

Amendment 154 #

Proposal for a directive
Article 4 – paragraph 1 – point a a (new)

(aa) required or authorised by national or EU law;

Amendment 155 #

Proposal for a directive
Article 4 – paragraph 1 – point b

Amendment 156 #

Proposal for a directive
Article 4 – paragraph 1 – point b

Amendment 157 #

Proposal for a directive
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, provided that the information acquired is not used in a manner contrary to honest commercial practice;

Amendment 158 #

Proposal for a directive
Article 4 – paragraph 1 – point b a (new)

(ba) use of the knowledge and skills honestly acquired by employees in the normal exercise of their duties;

Amendment 159 #

Proposal for a directive
Article 4 – paragraph 1 – point c

~~(c) exercise of the right of workers representatives to information and consultation in accordance with Union and national law and/or practices;~~deleted

Amendment 160 #

Proposal for a directive
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 161 #

Proposal for a directive
Article 4 – paragraph 1 – point c

(c) worker's representatives acquisition and disclosure of trade secrets in the context of the exercise of the rights of workers representatives to information ~~and~~, consultation and participation in accordance with Union and national law and~~/or~~ practices, and the collective defence of the interests of workers and employers, including co-determination;

Amendment 162 #

Proposal for a directive
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 163 #

Proposal for a directive
Article 4 – paragraph 1 – point c a (new)

(ca) acquired through the knowledge, qualifications and skills of employees obtained in previous employment conditions, which are not covered by the definition of trade secrets as provided for in Article 2. Contractual obligations and any other actions limiting the use of such knowledge, qualifications and skills shall comply with the principle of free movement of workers and of proportionality in the interest of innovation and free competition

Amendment 164 #

Giovanni TOTI

Proposal for a directive
Article 4 – paragraph 1 – point d

~~(d) any other practice which, under the circumstances, is in conformity with honest commercial practices.~~deleted

Amendment 165 #

Proposal for a directive
Article 4 – paragraph 1 – point d

d~~) any other practice which, under the circumstances, is in conformity with honest commercial practices.~~eleted

Amendment 166 #

Proposal for a directive
Article 4 – paragraph 1 – point d a (new)

(da) provided by the knowledge, qualifications and skills that employees have achieved in previous employment, and which are not covered by the definition of trade secrets as described in Article 2. Obligations of contracts and other actions that may limit the use of such knowledge shall comply with the principle of proportionality in the interest of innovation and free competition;

Amendment 167 #

Proposal for a directive
Article 4 – paragraph 1 – point d b (new)

(db) such acquisition, use or disclosure is required or authorised by Article 4(4)(d) or Article 5(8) of the United Nations Aarhus Convention, Article 6(1) of Regulation (EC) 1367/2006 or Article 4(1) of Directive 2003/4/EC which require the disclosure of information relevant to the protection of the environment.

Amendment 168 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

1a. Information that may qualify as trade secret may also be of direct importance to society as a whole, for example, in the field of health, environmental and food safety policies, and access to this type of information for public institutions should not be hampered by the mere fact of this type of information being classified as ´trade secret´.

Amendment 169 #

Proposal for a directive
Article 4 – paragraph 1a (new)

1a. The acquisition, use and disclosure of trade secrets shall be deemed lawful in so far as it is required by national or Union law, without prejudice to the rights of the holder.

Amendment 170 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

1a. The acquisition, use and disclosure of trade secrets shall be considered lawful if such acquisition, use or disclosure is required or authorised by Union or national law or within the mandate of public institutions.

Amendment 171 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

1a. An employer shall be presumed to be the holder of a trade secret developed by a worker when the trade secret is related to the worker’s activities in the company.

Amendment 38 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widely known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Trade secrets and intellectual property rights constitute two differentiated legal instruments. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 39 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widely known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses~~, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and~~ use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.

Amendment 40 #

Proposal for a directive
Recital 1

(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of ~~formal~~ intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access ~~and exploit the knowledge~~ that is valuable to the entity and not ~~wide~~generally known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innova among or readily accessible to persons that deal with the kind of information in question management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range ofd by other persons who might obtain economic value from its disclosure or use. Such know-how and ~~commercial~~business information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performancethat is undisclosed and intended to remain confidential is referred to as a trade secret.

Amendment 41 #

Jiří MAŠTÁLKA, Kostas CHRYSOGONOS

Proposal for a directive
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 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 under the protection of employment mobility. 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 42 #

Proposal for a directive
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, they mean a significant protection especially for SMEs 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 43 #

Proposal for a directive
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 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. The dissemination of knowledge and information must be considered essential to ensuring dynamic, positive and equal business development opportunities. 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 44 #

Proposal for a directive
Recital 2

(2) Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. It 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 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 frameworkSuch an environment conducive to intellectual creation and innovation and where employment mobility is ensured is also important for employment growth and improving competitiveness of the Union economy. Trade secrets have a role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation. Nevertheless, the protection against their unlawful acquisition, use or disclosure ~~by third parties~~of trade secrets should not to be detrimental to innovation and employment mobility.

Amendment 45 #

Proposal for a directive
Recital 3

(3) ~~Innovative b~~Businesses are ~~increasingly~~ exposed to dishonest practices aiming at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage, breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalisation, increased outsourcing, longer supply chains, increased use of information and communication technology. contribute to increasing the risk of those practices. The unlawful acquisition, use or disclosure of a trade secret compromises the ~~legitimate trade secret holder’s ability~~ability of the person lawfully controlling the trade secret to obtain first mover returns using the outputs of its ~~innovative~~ efforts. Without effective and comparable legal means for defending trade secrets across the Union, ~~incentives to~~businesses will be less secure when engage ing innovative cross-border activity within the internal market are undermined and trade secrets are unable to fulfil their potential as drivers of economic growth and jobs. Thus, innovation and creativity are discouraged and investment diminishes, affecting the smooth functioning of the internal market and undermining its growth enhancing potential collaboration with cross-border partners, which undermines the growth enhancing potential of the internal market.

Amendment 46 #

Proposal for a directive
Recital 4

(4) ~~International efforts taken in the framework of the World Trade Organisation to address this problem led to the conclusion of t~~The Agreement on trade-related aspects of intellectual property (the TRIPS Agreement). It contains, inter alia, provisions on the protection of trade secrets - referred to in the text as 'undisclosed information'- against their unlawful acquisition, use or disclosure by third parties, which are common international standards. All Member States, as well as the Union itself, are bound by this Agreement which was approved by Council Decision 94/800/EC5. __________________ 5 Council Decision of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986- 1994) (OJ L 336, 23.12.1994, p.1).

Amendment 47 #

Proposal for a directive
Recital 5

Amendment 48 #

Proposal for a directive
Recital 7

(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on ~~stolen or otherwise~~trade secrets that have been proven to be stolen or unlawfully acquired ~~trade secrets~~. On the whole, such differences create a prejudice to the proper functioning of the internal market.

Amendment 49 #

Proposal for a directive
Recital 7

(7) The differences in the legal protection of trade secrets provided for by the Member States imply that trade secrets do not enjoy an equivalent level of protection throughout the Union, thus leading to fragmentation of the internal market in this area and weakening the overall deterrent effect of the rules. The internal market is affected in so far as such differences lower businesses’' incentives to undertake innovative-related cross-border economic activity, including research or manufacturing cooperation with partners, outsourcing or investment in other Member States, which would depend on the use of the information protected as trade secrets. Cross-border network research and development as well as innovation-related activities, including related manufacturing and subsequent cross- border trade, are rendered less attractive and more difficult within the Union, thus also resulting in innovation-related inefficiencies at Union scale. In addition, higher business risk appears in Member States with comparatively lower levels of protection, where trade secrets may be stolen or otherwise unlawfully acquired more easily. This leads to inefficient allocation of capital to growth-enhancing innovation within the internal market because of the higher expenditure on protective measures to compensate for the insufficient legal protection in some Member States. It also favours the activity of unfair competitors who following the unlawful acquisition of trade secrets could spread resulting goods across the internal market. Legislative regime differences also facilitate the importation of goods from third countries into the Union through entry points with weaker protection, when the design, manufacturing or marketing of those goods rely on ~~stolen or otherwise~~trade secrets that have been proven to be stolen or unlawfully acquired ~~trade secrets~~. On the whole, such differences create a prejudice to the proper functioning of the internal market.

Amendment 50 #

Tadeusz ZWIEFKA

Proposal for a directive
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. This Directive is without prejudice to the possibility for Member States to provide for a more far reaching protection against the unlawful acquisition, use or disclosure of trade secrets.

Amendment 51 #

Proposal for a directive
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, including in the context of public and private contracts. The information or know-how should also have actual or potential commercial value. The information or know-how has commercial value, in particular, to the extent that its unlawful acquisition, use or disclosure is likely to cause harm to the person who legitimately controls it, by undermining their scientific and technological potential, economic or financial interests or their ability to withstand competition. 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 52 #

Proposal for a directive
Recital 8

Amendment 53 #

Proposal for a directive
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 information and know-how must be secret in nature, they must have actual or potential commercial value, and their protection must not be contrary to public interest. 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 54 #

Proposal for a directive
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 an~~ and undisclosed know-how where there is ~~both~~ a legitimate interest in keeping confidential, a commercial value of this information because it is kept 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, including competitors.

Amendment 55 #

Proposal for a directive
Recital 9

(9) It is also important to identify the circumstances under which legal protection is justified. For this reason, it is necessary to establish the conduct and practices which are to be regarded as unlawful acquisition, use or disclosure of a trade secret. Disclosure by Union’s institutions and bodies or national public authorities of business-related information they hold pursuant to the obligations of Regulation (EC) No 1049/2001 of the European Parliament and of the Council6 or to other rules on the access to documents should not be considered unlawful disclosure of a trade secret. Similarly the case of the protecting of legitimate public interest, such as consumer protection, the protection of workers, the protection of public health, environment as well as the safeguard of fundamental rights, including freedom of expression and information, the prevention of unfair competition should not fall under the scope of this Directive. __________________ 6 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p.43).

Amendment 56 #

Mary HONEYBALL, Catherine STIHLER

Proposal for a directive
Recital 9

(9) It is also important to identify the circumstances under which legal protection is justified. For this reason, it is necessary to establish the conduct and practices which are to be regarded as unlawful acquisition, use or disclosure of a trade secret. Disclosure by Union’s institutions and bodies or national public authorities of business-related information they hold pursuant to the obligations of Regulation (EC) No 1049/2001 of the European Parliament and of the Council6 or to other rules on the access to documents should not be considered unlawful disclosure of a trade secret. Similarly, any information which disclosure, acquisition or use is required by Union or national rules or by public authorities should not fall within the scope of this Directive. Moreover, the disclosure, acquisition or use of information should not be considered unlawful when made in the purpose of the legitimate protection of the public interest, such as consumer protection, the protection of workers, the protection of human, animal or plant life, the protection of the environment and of urban environment, the safeguard of fundamental rights, including freedom of expression and information, the prevention of unfair competition. __________________ 6 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p.43).

Amendment 57 #

Proposal for a directive
Recital 9 a (new)

(9a) For the purposes of this Directive, and in accordance with Regulation (EU) No 536/2014 of the European Parliament and of the Council1a, in general the data included in a clinical study report should not be considered commercially confidential once a marketing authorisation has been granted, the procedure for granting the marketing authorisation has been completed or the application for marketing authorisation has been withdrawn. In addition, the main characteristics of a clinical trial, the conclusion on Part I of the assessment report for the authorisation of a clinical trial, the decision on the authorisation of a clinical trial, the substantial modification of a clinical trial, and the clinical trial results including reasons for temporary halt or early termination, in general, should not be considered a trade secret. ________________ 1aRegulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use (OJ L 158, 27.5.2014, p. 1).

Amendment 58 #

Pascal DURAND, Felix REDA

Proposal for a directive
Recital 9 a (new)

(9a) In the interest of protecting the environment, this Directive is without prejudice to the obligations imposed on the Union and its Member States by the United Nations Aarhus Convention to grant access to and disseminate environmental information. Specifically, Article 4(4)(d) and Article 5(8) of the Aarhus Convention requires public authorities to disclose information on "emissions which is relevant to the protection of the environment" and "develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices" , transposed into Union law by Article 6(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council1a and Article 4(1) of Directive 2003/4/EC of the European Parliament and of the Council1b; ________________ 1a Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13). 1bDirective 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (OJ L 41, 14.2.2003, p. 16).

Amendment 59 #

Proposal for a directive
Recital 9 a (new)

(9a) This Directive is without prejudice to the obligations imposed on the Union and its Member States by the United Nations Aarhus Convention to grant access to and disseminate environmental information. In particular, Article 4(4)(d) of the Aarhus Convention requires public authorities to disclose information on "emissions which is relevant to the protection of the environment", even in case of confidential commercial and industrial information. This requirement is reinforced and transposed into Union law by Article 6(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council1a and Article 4(1) of Directive 2003/4/EC of the European Parliament and of the Council1b. Furthermore, Article 5(8) of the Aarhus Convention requires the Union and its Member States to "develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices". Accordingly, any acquisition, use or disclosure of business secrets by an EU institution or national public authority in conformity with these provisions shall not be considered unlawful. _______________ 1aRegulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13). 1bDirective 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (OJ L 41, 14.2.2003, p. 16).

Amendment 60 #

Proposal for a directive
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. Its provisions cannot be used for the sole purpose of restricting competition. 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.

Amendment 61 #

Proposal for a directive
Recital 10 a (new)

(10a) This Directive shall not prejudice the application of national or EU laws which provide for or require the dissemination of information which could be defined as a trade secret. In such cases, the overriding general public interest should be clearly defined.

Amendment 62 #

Proposal for a directive
Recital 10 a (new)

(10 a) The lawful acquisition of confidential commercial information or know-how cannot subsequently be used to justify disclosure constituting an act of unfair competition, defined in Article 10a of the Paris Convention on the protection of intellectual property as any act of competition contrary to honest practices in industrial or commercial matters. 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 63 #

Proposal for a directive
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, use or disclosure of the trade secret as well as the impact of such conduct. 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. Any measure that may directly or indirectly restrict sharing and use of knowledge and the hiring and mobility of labour, including the introduction of a uniform definition of trade secrets and the introduction and implementation of uniform rules for the protection of trade secrets within the internal market, should respect the principle of proportionality in the interest of innovation and free competition.

Amendment 64 #

Proposal for a directive
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~~including workers mobility, without jeopardising other objectives and principles of public interest, such as fundamental rights, consumer protection, health and environmental protection. 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, use or disclosure of the trade secret as well as the impact of such conduct. 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 65 #

Proposal for a directive
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 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, and inter alia work of journalists, human rights activists and trade unionists. 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. Trade secrets should in no way be used as a way to hide information to public institutions.

Amendment 66 #

Proposal for a directive
Recital 12

Amendment 67 #

Proposal for a directive
Recital 13

(13) In the interest of legal certainty and considering that legitimate trade secret holders are expected to exercise a duty of care as regards the preservation of the confidentiality of their valuable trade secrets and the monitoring of their use, it appears appropriate to restrict the possibility to initiate actions for the protection of trade secrets to a limited period following the date on which the trade secret holders became aware, or had reason to become aware, of the unlawful acquisition, use or disclosure of their trade secret by a third party. However, the protection against unlawful acquisition, disclosure and use of trade secrets should not restrict employees' mobility and become a burden in their~~d party~~ efforts to find a job in the EU market. This needs to be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive: this period should therefore not exceed a year. The legal framework set out by this Directive shall aim to properly reflect the necessary to have a proper balance between the employees who create new ideas and the companies who provide the resources and the environment for the development of these ideas.

Amendment 68 #

Proposal for a directive
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 public access to ~~evidence or~~ hearings, or to publish only non- confidential elements of judicial decisions. 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 69 #

Proposal for a directive
Recital 15

Amendment 70 #

Proposal for a directive
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, including when trade secrets are used for the purposes of delivering services. For prohibitory measures to be effective, their duration, when circumstances require a limitation in time, 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. 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 71 #

Proposal for a directive
Recital 17

Amendment 72 #

Jean-Marie CAVADA, Frédérique RIES

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence. The provisions of this Directive shall therefore not apply where the information is disclosed in the overriding public interest or in compliance with a fundamental right.

Amendment 73 #

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of the press and the media, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.

Amendment 74 #

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, freedom of the press and the media, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.

Amendment 75 #

Mary HONEYBALL

Proposal for a directive
Recital 23

(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom of the press and the media, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence.

Amendment 76 #

Jean-Marie CAVADA, Frédérique RIES

Proposal for a directive
Recital 23 a (new)

(23a) Member States shall respect freedom of the press and the media, according to Article 11(2) of the Charter of Fundamental Rights of the European Union in order to ensure that the Directive does not restrict journalistic works, in particular with regard to investigation, protection of sources, and the right of the public to be informed

Amendment 77 #

Proposal for a directive
Recital 23 a (new)

(23 a) In particular, it is important that the freedom of the press and the media should be respected, in accordance with Article 11 paragraph 2 of the Charter of Fundamental Rights of the European Union, in order that this Directive does not hinder the work of journalists, especially in relation to investigations, the protection of sources and the public’s right to information.

Amendment 78 #

Proposal for a directive
Recital 24 a (new)

(24a) However, the protection against unlawful acquisition, disclosure and use of trade secrets should not restrict employees' mobility and become a burden in their efforts to find a job. This need to be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive.

Amendment 79 #

Proposal for a directive
Recital 27 a (new)

(27a) This Directive will not affect the application of the freedom of movement for workers and the freedom of establishment, in particular Articles 48 and 49 of the TFEU and Article 15 of the Charter of Fundamental Rights of the European Union. The measures provided for in this Directive should not be used to restrict the free movement of workers, services and capital in a manner contrary to that Treaty and Charter.

Amendment 80 #

Proposal for a directive
Recital 27 a (new)

(27a) The measures provided in the Directive and their implementation must not affect the application of the freedom of movement for workers and the freedom of establishment, in particular Articles 48 and 49 of the Treaty on the Functioning of the European Union and Article 15 of the Charter of Fundamental Rights of the European Union.

Amendment 81 #

Proposal for a directive
Recital 27 a (new)

(27a) The measures provided in this Directive and their implementation shall be without prejudice to the freedom of movement and establishment of workers.

Amendment 82 #

Proposal for a directive
Recital 28

28) The measures adopted to protect trade secrets against their unlawful acquisition, disclosure and use should not affect the application of any other relevant law in other areas including intellectual property rights, privacy, access to documents and the law of contract. However, where the scope of application of Directive 2004/48/EC of the European Parliament and of the Council8 and the scope of this Directive overlap, this Directive takes precedence as lex specialis. __________________ 8Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L157, 30.4.2004, p.45).Deleted

Amendment 83 #

Proposal for a directive
Recital 28

(28) The measures adopted to protect trade secrets against their unlawful acquisition, disclosure and use should not affect the application of any other relevant law in other areas including environmental liability, consumer protection, health and safety requirements, health protection, intellectual property rights, privacy, access to documents and information, and the law of contract. Trade secret protection should not affect a disclosure of software source code such as publication of software under the European Union Public License (EUPL) or compatible licenses. However, where the scope of application of Directive 2004/48/EC of the European Parliament and of the Council8 and the scope of this Directive overlap, this Directive takes precedence as lex specialis. __________________ 8 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L157, 30.4.2004, p.45).

Amendment 84 #

Proposal for a directive
Article 1 – title

Subject matter and scope

Amendment 85 #

Henna VIRKKUNEN, Sampo TERHO

Proposal for a directive
Article 1 – title

Subject matter and scope

Amendment 86 #

Proposal for a directive
Article 1 – paragraph 1

Amendment 87 #

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down rules on the protection against the lawful and unlawful acquisition, disclosure and use of trade secrets and the measures, procedures and remedies for civil redress.

Amendment 88 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

The acquisition, use and disclosure of trade secrets shall be considered lawful where provided for under EU or national legislation or where carried out by public authorities in the exercise of their mandate, to ensure that the protection of trade secrets does not undermine the general public interest. In such cases, therefore, such information shall not fall within the scope of this Directive.

Amendment 89 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

This Directive shall not affect the possibility for Member States, in compliance with the provisions of the Treaty, to lay down provisions ensuring more extensive protection of trade secrets against their unlawful acquisition, use or disclosure than that provided by this Directive, with the exception of Articles 4, 5, 6, 7, 8(1) second subparagraph, 8(3), 8(4), 9(2), 10, 12 and 14(3) [which shall be implemented in their entirety]. This Directive shall not affect Union and/or national law and/or practices concerning the information and consultation of employees and the representation and collective defence of the interests of workers and employers, including co-determination.

Amendment 90 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

Amendment 91 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

Amendment 92 #

Sajjad KARIM, Angel DZHAMBAZKI

Proposal for a directive
Article 1 – paragraph 1 a (new)

Any information the disclosure of which is required by the Union or national rules or by public authorities within the context of their mandate shall not fall within the scope of this Directive

Amendment 93 #

Proposal for a directive
Article 1 – paragraph 1 a (new)

Member States may provide, in compliance with the provisions of the Treaty, for more protection against the unlawful acquisition, use or disclosure of trade secrets than required under this Directive, provided that compliance with Articles 4,5 6 (1), 7, 8 (1) second subparagraph, 8 (3), 8 (4), 9 (2), 10, 12 and 14 (3) is ensured;

Amendment 94 #

Proposal for a directive
Article 1 – paragraph 1 b (new)

Any information, of which the disclosure is required by international, Union or national law, or by public and regulatory authorities within the context of their mandate, shall not fall within the scope of this Directive.

Amendment 95 #

Proposal for a directive
Article 1 – paragraph 1 b (new)

Member States may provide, in compliance with the provision of the Treaty for more precise definitions and rules and comprehensive description of lawful acquisition, use and disclosure of trade secrets provided that compliance with Articles 4, 5 ,6, 7, 8(1)2nd sub para, 8(3), 8(4), 9(2), 10, 12, 14(3) of this Directive is ensured.

Amendment 96 #

Proposal for a directive
Article 2– point 1 – introductory part

(1) ‘trade secret’ means confidential business information which meets all of the following requirements:

Amendment 97 #

Proposal for a directive
Article 2 – point 1 – introductory part

(1) ‘trade secret’ means ~~information~~business-related information, know-how, facts, decisions and data which meets all of the following requirements:

Amendment 98 #

Proposal for a directive
Article 2 – 1 – introductory part

(1) ‘trade secret’ means ~~information~~commercial, technological and any other kind of information, including know-how, which meets all of the following requirements:

Amendment 99 #