For the formal implementation of the directive, Germany will adopt a law on trade secrets. A first draft deed was presented on April 19, 2018 (the draft and a explanatory statement are available here). The proposed Trade Secrets Act provides rights against violators who have illegally acquired, used or disclosed a trade secret. In addition to claims for compensation, claims for omission and information, companies may also be entitled to recall and destroy products manufactured and marketed as a result of a breach of trade secrets (Article 5-7 of the Trade Secrets Bill). However, a simple financial compensation in the form of a fictitious licence fee may be paid to the aggrieved party (in place of another liability) if the offender has not acted in a culpable manner and if financial compensation for the aggrieved party appears satisfactory (Article 10 of the Trade Secrecy Act). Similarly, there are no claims to the extent that they would be excessive in light of the particular circumstances of the case, including (1) the value of trade secrecy, (2) business secrecy, (3) the offender`s conduct in acquiring, using or disclosing business secrecy, and (4) the effects of the unlawful use or disclosure of commercial secrecy (Article 8 of commercial secrecy). In addition to civil proceedings against an offender, criminal consequences remain possible (Article 22 of the Trade Secrets Bill). In addition, trade secrets must be protected in contracts with third parties such as customers, suppliers, licensees or research and development partners. Confidentiality agreements (NOAs) will often involve penalties because it may be difficult to determine a certain amount of harm suffered by the unlawful disclosure of a trade secret and because the sanction may have an additional deterrent effect.

In light of the new reverse engineering rules, an explicit ban on self-engineering may also be included in trade agreements. The impetus given to the Trade Secrets Protection Act comes from the European Union`s 2016/943 Directive, a directive on the protection of undisclosed know-how and commercial information (trade secrets) against illegal acquisition, illegal use and disclosure. The directive aims to harmonize the protection of trade secrets in Europe; it had to be transposed into national legislation by 9 June 2018. If the directive is not yet transposed, as is the case in Germany, individuals can, to some extent, avail themselves of the directive itself, arguing that the existing national law must be interpreted as being in accordance with the directive. new essential rules, as discussed above (obligation to take appropriate measures to protect secrecy; eligibility for reverse engineering; Responsibility even without a guilty law) stems from the directive itself; Therefore, these new rules are potentially relevant to any company operating in Germany since 9 June 2018, when the deadline for transposing the directive into German law expired. An example of that statement was given to me. In addition, the Trade Secrecy Act will contain specific provisions on trade secrets.