Legal nature of trade secrets under the regime established by Directive (EU) 2016/943

Abstract

The increased protection of trade secrets, in particular by Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of know-how and confidential business information (trade secrets) against their unlawful acquisition, use and disclosure, has raised the question of the legal nature of the protection granted. The national legal systems of the Member States of the European Union have protected such secrets through various legal instruments, ranging from civil law to criminal law. However, gradually moving away from the traditional understanding of unfair competition, the question arises as to whether the established regime allows trade secrets to be classified as a new subjective industrial property right, or whether we are dealing with legally protected interests by means of protection rules.