Harmonization of Trade Secrets: Requirements for Protection in the EU

Teresa Trallero Ocaña

This dissertation examines the legal framework for the protection of trade secrets in three European jurisdictions. On the basis of such analysis, the thesis aims at identifying whether there is a common ground that would allow a potential harmonization of the secrecy requirement at the EU level.

Unlike other areas of Intellectual Property or Unfair Competition, the system for the protection of trade secrets has not been harmonized within the European Union. Despite the fact that all Member States afford some level of protection, the manner and certainty provided by the different national systems varies substantially from jurisdiction to jurisdiction. On the one hand, common law countries, such as the UK and Ireland, do not have specific provisions dealing with trade secrets. Instead effective protection is achieved through the breach of confidence action, which protects confidential information in general. On the other hand, in most civil law jurisdictions protection of trade secrets is articulated through an array of remedies provided for in civil, criminal and labor law statutes. As such, the inconsistencies across the EU on the subject matter of protection, the scope of trade secrets and the remedies available in case of misappropriation lead to a high degree of legal uncertainty, which is detrimental to the good functioning of the internal market.

This dissertation looks into the requirements for the protection of information as trade secrets in three selected European jurisdictions: the United Kingdom, Germany and Italy. In particular, the thesis focuses on the study of the so-called "secrecy requirement" and the divergent standards adopted in each of the above mentioned jurisdictions. In this context, the functionality of trade secrets is also studied. On the basis of such analysis, the thesis identifies and examines whether there is a common ground that would allow a potential harmonization of the secrecy requirement at the EU level. Finally, the Dissertation studies the legal consequences of establishing an exclusive proprietary regime for the protection of trade secrets, instead of relying on the traditional unfair competition regime set forth in Article 10bis of the Paris Convention and 39(2) TRIPs.