GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
Personnel Measures The standard in this regard includes confidenti - ality agreements with employees and business partners, a clean-desk policy and the implemen - tation of a need-to-know policy. Furthermore, employees should be sensitised and trained in the risks of espionage. Finally, measures to increase employee commitment to the compa - ny can help prevent employees from disclosing secrets. Technical Measures These include IT security measures – for exam - ple, firewalls, password protection, virus scan - ners, encryption of data carriers, network con - nections and email traffic, monitoring of log files, penetration tests, intrusion detection and systems. Ultimately, however, “best practices” are difficult to define in the abstract, but must always be oriented to the requirements of the respective company and the trade secret to be protected. It remains to be seen how German case law will develop with regard to such “best practice” . 3.2 Exit Interviews In Germany, employers usually do not conduct exit interviews for departing employees. While such interviews are not prohibited, the employee is not obligated to answer questions regarding their new employer. 4. Safeguarding Against Allegations of Trade Secret Misappropriation 4.1 Pre-Existing Skills and Expertise In theory, German trade secret law distinguishes between an employee’s general knowledge and skills, which they are free to use after they leave
the employer, and protectable trade secrets, which remain in the control of the employer. In practice, however, this distinction is extremely difficult and has become known as a major prob - lem of German trade secret law. The general rule is that the employee is not permitted to use records of any kind contain - ing trade secrets of their employer, but may use everything they know by experience and/or by heart. Furthermore, according to case law of the FCJ, the employee is also forbidden from sys - tematic memorisation of the trade secret. However, there is no assignment in the sense that the employee may use their general knowl - edge and acquired skills, whereas factual knowledge (eg, the composition of a specific product or customer lists) is solely assigned to the employer. As long as the relevant secret is sufficiently complex and the employee cannot reproduce it without recourse to documents, this is not a problem. There are, however, countless secrets that can only be explored with great effort (eg, a recipe or the ideal temperature for a burning process), but are very easy to remember. Since German law does not recognise the doc - trine of “inevitable disclosure” , the employer’s only option is to agree a non-competition clause with the employee. However, this is only possible subject to a consideration and for a limited time 4.2 New Employees As far as is apparent, the potential risk of lia - bility for trade secret infringements due to the recruitment of employees from competitors is, strangely enough, often ignored by companies in Germany. The standard compliance manu - als contain no reference to this problem. This is presumably related to the fact that the conse - quences of a trade secret misappropriation have not been particularly serious for the infringer so
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