Examination Of Te Bill Tansposing EU Directive On Tade Secrets

Author:Ms Isabelle Cottin
Profession:Soulier Avocats
 
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Two years after the adoption of the so-called Trade Secrets Directive1, the Bill endorsed by the Joint Committee (i.e. a legislative committee composed of an equal number of members from the Senate and the National Assembly) on March 24, 2018 was finally passed by Parliament on June 21, 2018.

This article provides insights on the three chapters of the Bill: Scope and conditions of application, measures to prevent, put an end to, and obtain redress in case of infringement of a trade secret, and general provisions to protect trade secrets before civil and commercial courts.

As French law does not provide for any definition of trade secrets, does not offer appropriate civil remedies and does not include specific criminal offenses addressing the protection of trade secrets, the transposition of the Trade Secrets Directive (the "Directive") was long-awaited.

The disagreements and discussions between the National Assembly and the Senate helped clarify various provisions of the Directive.

On the other hand, the Directive left it to EU Member States2 to criminalize trade secret related offenses. Despites the Senate's intention to introduce the offence of economic espionage, the Joint Committee did not follow this through. As such, any infringement of trade secrets can only be criminally sanctioned through ordinary-law offenses such as breach of trust3, theft4 or appropriation of data5.

The three chapters of the Bill are outlined below. 

Chapter 1: Scope and conditions of application  Section 1: Protected information

Future Article L. 151-1 of the French Commercial Code (the "FCC") shall define trade secrets as follows:

"Is protected as a trade secret any information that meets the following requirements:

  1. It is not, in itself or in the precise configuration and assembly of its components, generally known among or readily accessible to persons who/that normally deal with the kind of information in question within their line of business;

  2. It has effective or potential commercial value because it is secret;

  3. It is the subject by its lawful holder of reasonable protective measures in the circumstances to preserve its secrecy."

    This definition is substantially identical to that provided for in Article 1 of the Directive[6].

    Regarding 2° of this Article, the Senate argued that the concept of "economic value" would induce a broader approach than the concept of "commercial value". However, due the difficulties in assessing and interpreting this concept, the Joint Committee rejected this proposal and retained the concept of "commercial value".  

    Section 2: Lawful possession and unlawful acquisition of trade secrets 

    Future Article L. 151-2 A of the FCC shall define the legitimate holder of a trade secret as "the person lawfully in control thereof."

    The lawful holder of information shall be defined differently since future Article L. 151-2 of the FCC shall stipulate as follows: 

    "The...

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