POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
• to disclose irregularities, infringements or actions in breach of the law for the protection of public inter - est; or • regarding representatives of employees in con - nection with their functions determined by law, if necessary for the proper performance of these functions. In exceptional cases, it may be possible to claim that although the disclosure, use or acquisition takes place without the trade secret owner’s consent, such actions: • were not contrary to “good commercial practices”; or • did not, in fact, threaten or infringe the trade secrets owner’s interests and, consequently, did not constitute an act of unfair competition. See also 1.7 Independent Discovery and 4.1 Pre- For trade secret claims under the UCL against employ - ees or ex-employees, see 1.13 Other Legal Theories . Claims regarding an employee’s misappropriation of trade secrets may be also based on a different legal basis, in particular, under the Labour Code’s provi - sions, stipulating that each employee is required to keep confidential any information the disclosure of which could expose the employer to damage. Additionally, the claims against employees and former employees may be based under: • a contractual regime (if there is an appropriate con - fidentiality undertaking in place); • a general tort regime (under the Civil Code); or • the provisions of TRIPS directly. See also 4.1 Pre-Existing Skills and Expertise . 2.3 Joint Ventures Rules regarding the use, disclosure, (co-)ownership or licensing of trade secrets are usually included in shareholders agreements, investment agreements or other joint-venture agreements. There are no Polish Existing Skills and Expertise . 2.2 Employee Relationships
law provisions pertaining specifically to trade secrets in joint-venture relations. 2.4 Industrial Espionage Most activities usually considered to be industrial espionage are covered by the UCL’s penal and civil law provisions (see 1.14 Criminal Liability and 2.1 The Definition of Misappropriation ). There are no provi - sions of Polish law defining “industrial espionage”. 3. Preventing Trade Secret Misappropriation 3.1 Best Practices for Safeguarding Trade Secrets There are no recognised “best practices” or guide - lines pertaining to the protection of trade secrets. In practice, entrepreneurs implement various factual and legal measures to protect the confidentiality of their trade secrets as described in 1.5 Reasonable Meas- ures . 3.2 Exit Interviews Exit interviews are not common in Poland. However, if a given employee had access to sensitive informa - tion, a prudent entrepreneur may request that such an employee provide written confidentiality assurances. 4. Safeguarding Against Allegations of Trade Secret Misappropriation 4.1 Pre-Existing Skills and Expertise As a rule, the general knowledge, experience and skills an employee acquires during employment may not be considered trade secrets. The distinction between trade secrets and such general knowledge, experi - ence and skills is ambiguous and may cause some difficulties in practice. Polish law does not recognise the doctrine of “inevi - table disclosure” and gives priority to the freedom of employment. As a rule, employees may use their pre- existing skills and expertise for the benefit of a new employer. Employers may protect their interest, in that respect, by entering into additional non-competition agreements with employees. However, maintaining a
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