During its meeting on 5 December 2016, the Council for Intellectual Property decided to entrust an ad hoc working group with the examination of the Draft Bill for the transposition into Belgian law of Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, in accordance with the application of article 6, §1, of the Royal Decree of 5 July 2004.
In view of the broad scope of the Directive on the protection of trade secrets, both members of the Industrial Property Section and members of the Copyright and Related Rights Section were able to participate in the ad hoc working group. The working group’s members were: F. de Visscher, S. Granata, M-C. Janssens, D. Kaesmacher, A. Mottet, A. Puttemans, B. van den Hazel and B. Vandermeulen. Ms Andrée Puttemans chaired the working group. Ms M-N. Dinant, representative of the FPS Employment, Labour and Social Dialogue, Ms M. Vanconingsloo, representative of the FPS Justice, and Ms D. Lemaigre, representative of the FPS Economy’s Trade Regulation Department, also participated in some of the meetings of the ad hoc working group, in accordance with article 9 of the Royal Decree of 5 July 2004.
The working group drew up a draft opinion that was adopted by the Council for Intellectual Property during its plenary session on 13 June 2017.
While discussing the draft opinion, the Council emphasised that the Directive on the protection of trade secrets does not create an exclusive (property) right that is enforceable for everyone, but it imposes certain behavioural standards to comply with fair practices with regards to trade secrets. While it is true that the regulation established by the Directive is inspired by Directive 2004/48 on the enforcement of intellectual property rights, it should still be clarified that the aforementioned Directive 2016/943 and the Draft Bill are intended to set up measures and procedures that enable the trade secret holder to protest the unlawful acquisition, use and disclosure of trade secrets and to obtain damages, not to create an exclusive prohibitive provision. The Council also highlighted that the Draft Bill, like the Directive, states that the basic rights and fundamental freedoms, like the freedom of expression and information, must be respected when enforcing these provisions.