The Necessity of European Harmonization in the Area of Trade Secrets

Abstract

Albeit often being considered as ugly duckling or stepchild of intellectual property in the past, the subject of trade secret protection has increasingly gained more and more importance. The desire to guard the sweeping economic value of intellectual property, and especially of trade secrets, prompted action by the European legislator. The recently adopted Trade Secrets Directive is aimed at harmonizing key aspects of civil trade secret protection in the EU by providing uniform definitions and requirements as well as minimum standards for procedures and remedies. In a first step, this Thesis evaluates whether this harmonization is necessary at all given the existing domestic legal regimes and the minimum requirements enshrined in TRIPS. After identifying that there is indeed a detrimental fragmentation in the EU with respect to trade secret protection, harmonization on European level proves to be desirable and imperative for advancing the internal market and cross-border activities. To be successful, however, the Trade Secrets Directive must be capable of adequately and effectively introducing an improved and comprehensive European regime on trade secrets. Therefore, the scope and content of the Trade Secrets Directive are critically assessed. Particularly, the limited reach of harmonization is highlighted. Furthermore, key substantive elements of the Trade Secrets Directive are examined with a focus on their impact on the approximation of national laws. In the end, the European legislator did create a level playing field for trade secret protection in the EU – but it is a flawed one.