New Observatory report on trade secrets litigation trends in the EU

The Observatory has published a new report2023_Trade_Secrets_Litigation_Trends_Study_FullR_en.pdfon the litigation trends regarding the unlawful acquisition, use or disclosure of trade secrets pursuant to Article 18 of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 (The Trade Secrets Directive). The analysis within covers litigation between 1 January 2017 and 31 October 2022 and is complementary to ‘The Baseline of Trade Secrets Litigation in the EU Member States’ published by the Observatory in 2018.

The new report represents a comprehensive and thorough analysis of trade secrets litigation trends in the EU and shows the level of harmonisation achieved after the implementation of the provisions of the Trade Secrets Directive within the boundaries of the subject matter’s inherent complexity. The report consists of three parts: a quantitative analysis, a qualitative analysis, and a collection of case-law summaries.

The quantitative analysis is based on statistical trends observed in approximately 700 judgments issued in the period between 1 January 2017 and 31 October 2022 and reveals a number of differences across Member States in terms of case volumes, legal fora and subject matter, as well as economic sectors concerned.

The qualitative analysis provides a theoretical discussion on the interpretation of the definition of trade secrets, unlawful acts, the measures granted under the Trade Secrets Directive, and the principle of proportionality. Moreover, it identifies significant developments in the interpretation of the ‘reasonable steps’ requirement for meeting the definition of ‘trade secret’ and the issue of procedural measures for the preservation of confidentiality of trade secrets during litigation proceedings.

The case-law collection provides an overview of selected cases on trade secrets issued by the courts of the Member States. As trade secrets litigation trends are still developing, and the Court of Justice of the EU has not yet had the opportunity to provide clarification on key provisions of the Trade Secrets Directive, this collection represents a valuable resource for defining litigation trends not just in the Member States from which they stem but also at EU level.

The report is a solid benchmark for policy makers, legal practitioners and academics, as well as being a helpful tool for businesses, including small- and medium-sized enterprises to better understand the value of trade secrets and the possible ways to protect them in a highly competitive environment.