GERMANY Trends and Developments Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
Six years of the TSA Almost six years have passed since the EU Trade Secrets Directive (Directive (EU) 2016/943) (ETSD) was implemented into German law in the form of the German Trade Secret Act ( Gesetz zum Schutz von Geschäftsgeheimnis- sen , GeschGehG – the TSA), changing the legal protection of trade secrets from a criminal law- centric system to a dedicated law for the protec - tion of trade secrets, which is dominated by a civil law concept. It is no surprise that such a paradigm has led to considerable uncertainty among courts, legal practitioners and companies alike. While the legal literature initially took some time to take serious note of the TSA, in the last few years more and more articles have appeared deal - ing with various facets of the TSA – including the correct draft of non-disclosure agreements, “best practices” for company know-how pro - tection systems and the impact of the TSA on employment contracts. Several court decisions on the TSA have also been issued, dealing mainly with the question of what requirements must be fulfilled in order to ensure “appropriate confidentiality measures” for information to be protected as trade secrets and the use of trade secrets by former employ - ees. Further measures have also been taken at legislative level to protect trade secrets, espe - cially during civil litigation. The purpose of this article is to shed some light on some of the most relevant changes which the TSA has brought to German law on the protec - tion of trade secrets, and to highlight relevant court decisions and recent legislative action in this context.
Secrecy and Economic Value Protection under the TSA is only granted to information that is neither generally known nor readily accessible. This raises the question of how many people need to have knowledge of the information for it to be “generally known” and no longer a trade secret. To this regard, the Higher Regional Court of Dresden and the State Labour Court of Baden-Württemberg found that access to a trade secret by only a small group of persons is not enough to qualify as “general knowledge” . Therefore, information may still qualify as a trade secret if such information was passed on to the parties involved in a legal dis - pute as part of court proceedings or if only a certain group of employees within a company has access to the information. However, in both cases the group of persons with access to the trade secret could be identified from records, which means that the decisions may have been different in cases where there are spectators in the court room or the employees in question can no longer be individually identified. For information to be protected as a trade secret under the TSA, it must also have commercial value. The Dresden Higher Regional Court clari - fied that information does not have commer - cial value simply because it is kept secret but that economic value is a separate element: the information must have an actual or future mar - ket value or be able to influence the financial or commercial interests of an enterprise. While there is no specific value limit or de minimis threshold for “economic value” , in the case at hand, the plaintiff could not prove that informa - tion on holiday leave taken by employees of a company had any commercial value, as it did not allow any conclusions to be drawn about the number of employees or the company’s holi - day entitlement or salary structure. However, it should be noted that the question of whether
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