NEWS

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16-07-2018

 

The transposition into French law of the European Directive on the protection of business secrets 

 

On June 21, Directive 2016/943/EU of June 8, 2016 on the protection of business secrets was definitively transposed into French law. The transposition law is currently the subject of an appeal before the Constitutional Council based in particular on attacks on freedom of expression and communication, freedom of enterprise and the right of participation of workers. The appeal to the Constitutional Council should not, however, affect the main provisions of the transposition law.

 

Business secrecy is now defined in French law as any information that is not generally known or easily accessible by persons familiar with this type of information because of their sector of activity. To be protected as a trade secret, the information must also have actual or potential commercial value and be subject to reasonable protective measures on the part of its legitimate holder to keep it secret (new article L .151-1 of the Commercial Code). The legitimate holder of this information is the one who has control of it in a lawful manner for having discovered it or for having obtained it after having tested or observed an object made available to the public (hypothesis du reverse engineering ) (new article L.151-2 of the French Commercial Code)

 

The law also defines the conditions under which the obtaining, use and disclosure of trade secrets are unlawful and liable to engage the civil liability of the author of these breaches of trade secrets (new articles L.151- 4 to L.151-6 of the Commercial Code). In this respect, obtaining trade secrets is unlawful when it is carried out without the consent of its legitimate holder and when it results either from unauthorized access to any medium secrecy or behavior considered unfair and contrary to commercial practice. In addition, the use or disclosure of the trade secret is unlawful when it is carried out by a person who acts in violation of an obligation not to disclose the secret or to limit its use. Obtaining, using or disclosing is also unlawful when it is the act of a person who knew or who ought to have known, under the circumstances, that this secret had been obtained from another person who used or disclosed it unlawfully. 

 

The legislator has also provided for exceptions to the protection of business secrets (new articles L.151-7 to L.151-9 of the Commercial Code). Thus, the secret is not opposable when the obtaining, the use or the disclosure of the secret required or authorized by the law of the European Union, the treaties or international agreements in force or the national law, intervenes in the exercise of the powers of investigation, control, authorization or sanction of the jurisdictional or administrative authorities.

Business secrecy will also not be enforceable in a proceeding when the obtaining, use or disclosure of secret information occurs in one of the following cases_cc781905-5cde-3194-bb3b -136bad5cf58d_: 

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• The exercise of freedom of expression and communication ;

• The protection of the general interest and good faith, including in the exercise of the right to alert ;

• The protection of a legitimate interest recognized by European Union law or national law ;

• The exercise of the right to information and consultation of employees or their representatives ;

• Disclosure is made necessary for the exercise by employees of their functions ;

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A European Directive on the protection of whistleblowers was presented by the European Commission last April and is in the process of being adopted and could ultimately impact the protection of business secrecy.

 

Roland Rinaldo, lawyer, Cabinet ARTLEX Nantes

Géraldine Schielé, lawyer, Cabinet ARTLEX Nantes

 

Directive 2016/943/EU of June 8, 2016 on the protection of trade secrets, articles L.151-1 to L.154-1 of the Commercial Code, obtaining, disclosure and use of trade secrets, legitimate holder, freedom of expression, right to alert, recourse to the Constitutional Council, legal monitoring, business law, commercial law, intellectual property law, competition, unfair competition, counterfeiting, compensation, prejudice