Today on April 26, 2019 the new Act on the Protection of Trade Secrets entered into force, by which Germany transposes EU Directive 2016/943 on the protection of undisclosed know-how and business information into national law.
The most relevant change of law is the new requirement of „reasonable measures“, which owners have to adopt to keep their secrets confidential, in order to enjoy legal protection. Under the former case-law, an expressed intent of secrecy was sufficient. From now on, businesses in Germany will have to pay more attention to technical barriers and non-disclosure agreements, including their documentation.
The former criminal offenses regulated in sections 17 and 18 of the Act against Unfair Competition are moved in modified form to section 23 of the new Act. As an example, the former offense of industrial espionage „with technical means“ is replaced by a more general provision encompassing any „unauthorized access“ to the protected information, e.g. by breach of contract.
For protection under civil law, it is now clarified that it is not only available in cases of intentional violations of law (as already found by the Federal Court of Justice in its judgment of July 1, 1960, case No. I ZR 72/59; whereas the Federal Labor Court required intention in a judgment of May 19, 1998, case No. 9 AZR 394/97). Moreover, the new Act brings further clarifications such as an express legalization of re-engineering.
In civil proceedings, parties may now request that confidential information they submit be protected by confidentiality obligations to be imposed by the courts. This should enable them to comment on such information in detail without the risk of loss legal protection. It remains to be seen how this will work in practice.