Activities of Jiří MAŠTÁLKA related to 2013/0402(COD)
Shadow reports (1)
REPORT 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 PDF (1 MB) DOC (564 KB)
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 (17)
Amendment 38 #
Proposal for a directive
Recital 1
Recital 1
(1) Businesses and non- commercial research institutions invest in acquiring, developing and applying know-how and information, which is the currency of the knowledge economy. This investment in generating and applying intellectual capital determines their competitiveness in the market and therefore their returns to investment, which is the underlying motivation for business research and development. Businesses have recourse to different means to appropriate the results of their innovative activities when openness does not allow for the full exploitation of their research and innovation investments. Use of formal intellectual property rights such as patents, design rights or copyright is one of them. Another is to protect access and exploit the knowledge that is valuable to the entity and not widely known. Such know-how and business information, that is undisclosed and intended to remain confidential is referred to as a trade secret. Trade secrets and intellectual property rights constitute two differentiated legal instruments. Businesses, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property right and use confidentiality as a business and research innovation management tool, covering a diversified range of information, which extends beyond technological knowledge to commercial data such as information on customers and suppliers, business plans or market research and strategies. By protecting such a wide range of know-how and commercial information, whether as a complement or as an alternative to intellectual property rights, trade secrets allow the creator to derive profit from his/her creation and innovations and therefore are particularly important for research and development and innovative performance.
Amendment 41 #
Proposal for a directive
Recital 2
Recital 2
(2) Open innovation is an important lever for the creation of new knowledge and underpins the emergence of new and innovative business models based on the use of co-created knowledge. Trade secrets have an important role in protecting the exchange of knowledge between businesses within and across the borders of the internal market in the context of research and development and innovation. Collaborative research, including cross- border cooperation, is particularly important to increase the levels of business research and development within the internal market. Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. In an internal market where barriers to such cross-border collaboration are minimised and where cooperation is not distorted, intellectual creation and innovation should encourage investment in innovative processes, services and products. Such an environment conducive to intellectual creation and innovation is also important for employment growth and improving competitiveness of the Union economy under the protection of employment mobility. Trade secrets are amongst the most used form of protection of intellectual creation and innovative know-how by businesses, yet they are at the same time the least protected by the existing Union legal framework against their unlawful acquisition, use or disclosure by third parties.
Amendment 42 #
Proposal for a directive
Recital 2
Recital 2
(2) Open innovation is an important lever for the creation of new knowledge and underpins the emergence of new and innovative business models based on the use of co-created knowledge. Trade secrets have an important role in protecting the exchange of knowledge between businesses, they mean a significant protection especially for SMEs within and across the borders of the internal market in the context of research and development and innovation. Collaborative research, including cross- border cooperation, is particularly important to increase the levels of business research and development within the internal market. Open innovation is a catalyst for new ideas to find their way to the market meeting the needs of consumers and tackling societal challenges. In an internal market where barriers to such cross-border collaboration are minimised and where cooperation is not distorted, intellectual creation and innovation should encourage investment in innovative processes, services and products. Such an environment conducive to intellectual creation and innovation is also important for employment growth and improving competitiveness of the Union economy. Trade secrets are amongst the most used form of protection of intellectual creation and innovative know-how by businesses, yet they are at the same time the least protected by the existing Union legal framework against their unlawful acquisition, use or disclosure by third parties.
Amendment 55 #
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 should not be considered unlawful disclosure of a trade secret. Similarly the case of the protecting of legitimate public interest, such as consumer protection, the protection of workers, the protection of public health, environment as well as the safeguard of fundamental rights, including freedom of expression and information, the prevention of unfair competition should not fall under the scope of this Directive. __________________ 6 Regulation (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 65 #
Proposal for a directive
Recital 12
Recital 12
(12) The smooth functioning of the internal market would be undermined if the measures and remedies provided for were used to pursue illegitimate intents incompatible with the objectives of this Directive. Therefore, it is important to ensure that judicial authorities are empowered to sanction abusive behaviour by claimants who act in bad faith and submit manifestly unfounded applications. It is also important that measures and remedies provided for should not restrict the freedom of expression and information (which encompasses media freedom and pluralism as reflected in Article 11 of the Charter of Fundamental Rights of the European Union) or, whistleblowing activity, and inter alia work of journalists, human rights activists and trade unionists. Therefore the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest in so far as relevant misconduct or wrongdoing is revealed. Trade secrets should in no way be used as a way to hide information to public institutions.
Amendment 67 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down rules on the protection against the unlawful acquisition, disclosure and use of trade secretundisclosed know- how and business information (trade secrets), without the authorisation of the natural or legal persons that are lawfully controlling them and in a manner that is contrary to honest commercial practices.
Amendment 71 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
Any information of which disclosure is required by public authorities within the contest of their mandate and in accordance with national rules or Union laws shall not fall within the scope of this Directive.
Amendment 73 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
This Directive shall be governed by the principle of minimum harmonisation. Member States may provide, in compliance with the Treaties, for more precise definitions, rules and comprehensive descriptions of what constitutes lawful acquisition, use and disclosure of trade secrets.
Amendment 78 #
Proposal for a directive
Recital 24 a (new)
Recital 24 a (new)
(24a) However, the protection against unlawful acquisition, disclosure and use of trade secrets should not restrict employees' mobility and become a burden in their efforts to find a job. This need to be taken into account when setting the limitation period to the measures, procedures and remedies provided for in this Directive.
Amendment 79 #
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, in particular Articles 48 and 49 of the TFEU and Article 15 of the Charter of Fundamental Rights of the European Union. The measures provided for in this Directive should not be used to restrict the free movement of workers, services and capital in a manner contrary to that Treaty and Charter.
Amendment 134 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) the trade secret was disclosed by workers when fulfilling the terms of the employment contract, or to their representatives as part of the legitimate exercise of their representative functions;
Amendment 151 #
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 and workers´ mobility in the internal market.
Amendment 168 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. Information that may qualify as trade secret may also be of direct importance to society as a whole, for example, in the field of health, environmental and food safety policies, and access to this type of information for public institutions should not be hampered by the mere fact of this type of information being classified as ´trade secret´.
Amendment 176 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point a
Article 8 – paragraph 2 – subparagraph 2 – point a
(a) to restrict access of third parties to any document containing trade secrets submitted by the parties or third parties, in whole or in part; provided that both parties involved or their representatives have access to them,
Amendment 178 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 2 – point b
Article 8 – paragraph 2 – subparagraph 2 – point b
(b) to restrict access of third parties 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 an provided that both parties involved order them to be carried out only in the presence of the legal representatives of the parties and authorised experts subject to the confidentiality obligation referred to in paragraph 1;ir representatives have access to them.
Amendment 183 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 3
Article 8 – paragraph 2 – subparagraph 3
Amendment 227 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1
Article 18 – paragraph 1 – subparagraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by XX XX 20XX [2436 months after the date of adoption of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions.