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05 July 2018 / article

Trade Secrets: Belgium on its way to compliance

Short refresher: on 8 June 2016, the European legislator adopted a new Trade Secrets Directive. Members States were supposed to implement this Directive by 9 June 2018. Belgium is not there yet but recently made an important step forward: a legislative proposal has been filed on 12 June 2018. Let us have a look at its cornerstones.

Trade Secrets: Belgium on its way to compliance

Key elements of the Belgian draft Trade Secrets Act

At the moment, the Belgian legal provisions relating to trade secrets are scattered into different pieces of legislation: the Employment Contracts Act, the Criminal Code and civil rules on tort law. The transposition of the Directive should permit a harmonisation of those provisions.

In Belgium, the choice has been made to not adopt an autonomous Trade Secrets Act, but rather to amend the Code of Economic Law, the Judicial Code and the Employment Contracts Act.

In short, we can already underpin the following:

  • The commercial courts shall have jurisdiction to deal with actions regarding the unlawful acquisition, use or disclosure of trade secrets (without prejudice to the Labour and Arbitration Tribunals’ jurisdiction), even if the parties are not businesses, and regardless of the amount of the claim;
  • A statute of limitation of five years applies to bringing a trade secrets action to court (this term starts running as from the day of discovery of the unlawful act and the identity of the alleged infringer);
  • The trade secret holder can request the court to adopt provisional measures. However, and this is new in Belgium, those provisional measures will be revoked if a procedure on the merits is not introduced within the term set out in the decision (or, in the absence of such term, within 20 business days or 31 calendar days as from the decision’s notification); and
  • Generally speaking, the civil remedies available to the trade secret holder are very similar to the ones available to the owners of intellectual property rights (despite the fact that trade secrets are not intellectual property rights per se).

Next steps and transitional provisions

The draft act is now pending with the Chamber of Representatives. Once adopted and published in the Belgian Official Gazette, the act shall apply to infringements occurring after its entry into force but also to infringements which occurred prior to that date, but persist after its entry into force. In case of legal proceedings already pending at the moment of the entry into force of the Trade Secrets Act, parties shall however not be entitled to invoke the new legislation.

Important Update: The Belgian Trade Secrets Act has in the meanwhile been adopted (on 30 July 2018) and published in the Belgian Official Gazette (on 14 August 2018). It has entered into force on 24 August 2018, modifying the provisions of the Belgian Code of Economic Law and the Belgian Judicial Code.

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