GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets Since April 2019, legal protection of trade secrets in Germany has mainly been governed by the German Trade Secret Act (TSA) ( Gesetz zum Schutz von Geschäftsgeheimnissen , or GeschGehG). The TSA implements the require - ments of the Directive on the protection of undis - closed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (Directive (EU) 2016/943) (the “EU Trade Secrets Directive” , or ETSD). Amongst other things, the TSA regulates the requirements that information must meet in order to be protected as a trade secret (Section 2), the scope of such protection (Section 3 et seq) and the legal consequences of an infringe - ment (Section 6 et seq). Furthermore, it estab - lishes specific rules to protect trade secrets in (civil law) litigation (Section 15 et seq) and stipu - lates certain conduct regarding trade secrets as a criminal offence (Section 23). While the TSA is the main act with regard to trade secrets, there are several provisions throughout different acts of German law that may provide supplementary protection. Such provisions are mainly designed as special liability provisions for particularly qualified professional groups (such as members of the works council, board mem - bers and managing directors, lawyers, notaries or civil servants) that prohibit the disclosure and exploitation of trade secrets. In addition, depending on the individual case, provisions that serve mainly other purposes – such as the security of the Federal Republic of Germany (Section 93 et seq of the German Crim - inal Code (GCC) ( Strafgesetzbuch , or StGB)), the
integrity of electronic data (Section 202a et seq, GCC) or postal and telecommunications secrecy (Section 206, GCC) – may also provide auxiliary protection for trade secrets. 1.2 What Is Protectable as a Trade Secret In principle, any information that relates in any way to a business and has any kind of com - mercial value can be protected as a trade secret under the TSA. Inter alia, this applies to: • commercial information (eg, lists of custom - ers); • technical know-how (eg, unpatented inven - tions, recipes); • so-called negative information, meaning knowledge about adverse circumstances (such as production problems or an imminent insolvency); and • information where the fact itself (eg, a particu - lar process) is not secret, but the company that uses the process wants to prevent com - petitors from using it by keeping it secret. In summary, only information that is purely pri - vate and cannot be used in business transac - tions at all is not covered by the protection of the TSA. With regard to information about illegal activities in a company (eg, tax evasion, viola - tion of labour law or antitrust regulations), it is disputed whether such information can also be protected under the TSA. However, even if such information should be covered by the scope of the TSA’s protection (which is, in the authors’ opinion, convincing), its disclosure will in some cases be permitted by an overriding public inter - est. 1.3 Examples of Trade Secrets While neither the TSA nor the underlying ETSD provides for specific examples to illustrate the
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