With the 'Law on the protection of trade secrets', Belgium provides for the transposition of the European Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (business secrets) against their unlawful acquisition, use and disclosure, by which the European Union aims to achieve an equivalent level of protection in the European member states.
With this legislation, Belgium is responding to the European desire for harmonisation by providing measures to combat the unlawful acquisition, use or disclosure of know-how or of trade/business secrets.
Belgium thus provides for an additional (preventive) protection mechanism in favour of trade secrets, which in principle are not subject to protection mechanisms that intellectual property rights can offer, but represent a significant commercial value.
Belgium already provided for a number of protection measures, though this was not in a clear general legislative framework, but spread over several legislations. Because of the fragmented nature of this subject, Belgium has chosen not to implement the directive with a single bill. For this reason, the law provides for articles that will make changes to, among others, the Economic Code (with reference to Book I, XI and XVII), the Judicial Code and the law on employment contracts.
The first chapter of the present Belgian legislation sets out the scope of application.
In Article 2.1°, the definition of 'business secret', as provided for in Article 2, paragraph 1 of the European Directive, was subsequently adopted;
‘trade secret’ means information which meets all of the following requirements:
it is a secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
it has commercial value because it is a secret;
it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Whereas Chapter 2 of the Act determines what falls under 'unlawful acquisition, use and disclosure', Chapter 3 specifies what action will or can be taken in response to such behaviour. This provides for both preventive measures and substantive procedures. To this end, the Belgian transposition has thus provided for the designation of the competent courts by making amendments to the Judicial Code.
This legislation has immediate effect, from the moment of entry into force, namely 30 July 2018.
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