Activities of Martina WERNER related to 2013/0402(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure
Amendments (25)
Amendment 66 #
Proposal for a directive
Recital 9
Recital 9
(9) It is also important to identify the circumstances under which legal protection is justified. For this reason, it is necessary to establish the conduct and practices which are to be regarded as unlawful acquisition, use or disclosure of a trade secret. Disclosure by Union’s institutions and bodies or national public authorities of business-related information they hold pursuant to the obligations of Regulation (EC) No 1049/2001 of the European Parliament and of the Council6 or to other rules on the access to documents ishould not to be considered unlawful disclosure of a trade secret. __________________ 6Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p.43).
Amendment 68 #
Proposal for a directive
Recital 10
Recital 10
(10) In the interest of innovation and to foster competition, the provisions of this Directive should not create any exclusive right on the know-how or information protected as trade secrets. This Directive does not constitute an intellectual property right. Thus, independent discovery of the same know- how and information remains possible and competitors of the trade secret holder are also free to reverse engineer any lawfully acquired product.
Amendment 93 #
Proposal for a directive
Recital 23
Recital 23
(23) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to respect private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to good administration, access to file and preservation of secrecy of business, the right to an effective remedy and to a fair trial and right of defence. Thus the provisions of this Directive should not apply, if the disclosure of undisclosed information is in the overriding public interest or can be considered as a fundamental right.
Amendment 96 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) This Directive will not affect the application of the freedom of movement for workers and the freedom of establishment. It does also not affect the right of workers' representatives to the acquisition and disclosure of trade secrets in the context of the exercise of their rights to information, consultation and participation in accordance with Union and national law and practises.
Amendment 109 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
b) has commercial value because it is secret and the legal entity has a legitimate interest in its non-disclosure;
Amendment 131 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
Amendment 133 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
Amendment 135 #
Proposal for a directive
Article 3 – paragraph 2 – point d
Article 3 – paragraph 2 – point d
Amendment 140 #
Proposal for a directive
Article 3 – paragraph 2 – point f
Article 3 – paragraph 2 – point f
Amendment 171 #
Proposal for a directive
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
(ca) required or allowed by Union or national law.
Amendment 172 #
Proposal for a directive
Article 4 – paragraph 1 – point d
Article 4 – paragraph 1 – point d
Amendment 180 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
b) for the purpose of revealing an applicant’s misconduct, wrongdoing or illegal activity, provided to an appropriate authority, provided that the accused, without being negligent, could assume that the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest;
Amendment 184 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) for the purpose of fulfilling a legal obligation of non- contractual obligationnature;
Amendment 187 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) for the purpose of protecting a legitimate interest recognised by Union or national law.
Amendment 192 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) avoids the creation of barriers to legitimate trade, competition and workers' mobility in the internal market.;
Amendment 194 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) provides for safeguards against their abuse especially in case of abusive wrongful accusation.
Amendment 200 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
Member States shall be entitled to lay down rules determining the duly justified circumstances under which the limitation period may be interrupted or suspended.
Amendment 202 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Member States shall ensure that the parties, their legal representatives, court officials, witnesses, experts and any other person participating in the legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, shall not be permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have identified as confidential after consultation of the parties and of which they have become aware as a result of such participation or access.
Amendment 208 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a
Article 8 – paragraph 2 – subparagraph 2 – point a
(a) to restrict access to any document containing trade secrets submitted by the parties or third parties, in whole or in part; , provided that each party, its respective lawyer or representative to the proceedings and court officials are given full access to such document;
Amendment 213 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b
Article 8 – paragraph 2 – subparagraph 2 – point b
(b) to restrict access to hearings, when trade secrets may be disclosed, and their corresponding records or transcript. In exceptional circumstances, and subject to appropriate justification, the competent judicial authorities may restrict the parties’ access to those hearings and order them to be carried , provided that each party, its respective lawyer or representative to the proceedings and court only in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1fficials are given full access to such hearing, records or transcript;
Amendment 214 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3
Article 8 – paragraph 2 – subparagraph 3
Amendment 227 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that in deciding on the granting or rejecting of the application and assessing its proportionality, the competent judicial authorities shall be required to take into account the value of the trade secret, the measures taken to protect the trade secret, the intentionality of the respondent in acquiring, disclosing or using of the trade secret, the conduct of the respondent in acquiring, disclosing or using of the trade secret, the impact of the unlawful disclosure or use of the trade secret, the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties, the legitimate interests of third parties, the public interest and the safeguard of fundamental rights, including freedom of expression and information.
Amendment 254 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Member States shall ensure that, in considering a request for the adoption of the injunctions and corrective measures provided for in Article 11 and assessing their proportionality, the competent judicial authorities take into account the value of the trade secret, the measures taken to protect the trade secret, the intentionality of the infringer in acquiring, disclosing or using of the trade secret, the conduct of the infringer in acquiring, disclosing or using of the trade secret, the impact of the unlawful disclosure or use of the trade secret, the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties, the legitimate interests of third parties, the public interest and the safeguard of fundamental rights, including freedom of expression and information.
Amendment 272 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. In accordance with their national law and practice, Member States shall restrict the liability for damages of employees towards their employers for the unlawful acquisition, use or disclosure of a trade secret of the employer.
Amendment 280 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. By XX XX 20XX [four years after the end of the transposition period], the Commission shall draw up an intermediate report on the application of this Directive, including on its possible deleterious effects on fundamental rights and on workers' mobility as well as possible further improvements on innovation cooperation with a special attention to the effects on small and medium-sized enterprises, and submit it to the European Parliament and the Council. This report shall take due account of the report prepared by the European Observatory on Infringements of Intellectual Property Rights.