EU: adoption of the Trade Secrets Directive and publication of a regulation governing personal data protection
On Thursday 14 April the European Parliament gave the green light to the controversial Directive on Trade Secrets that is expected to shortly receive final adoption. The text seeks to combat industrial espionage and protect employed workers. On 04 May, the EU Official Journal published the EU General Data Protection Regulation that governs personal data protection and which includes a special section addressing employee information.
Data protection. These regulation, due to come into form on 25 May 2018, harmonize European legislation on the collection and processing of personal data and give EU citizens greater control over the use of their data. The goal is that with only one regime businesses will be able to avoid having to deal with 28 separate sets of formalities and national legislation. The advantages of harmonization may be felt less as regards aspects concerning personnel management because the regulations intend for Member States to be able to introduce their own specific measures especially over conditions under which such data would imply workers’ prior consent, which could then affect outcomes over work management, planning and organization and even the termination of the employment contract. The official text is available.
Trade secrets. Following the EU Parliament’s vote to adopt the regulation on 14 April, its final adoption is now just a formality and is expected shortly. Its goal is essentially to protect businesses from economic and industrial espionage. Whistleblowers will only now be protected if ‘they have acted to protect the general public’s interest,’ (Article 5). As regards workers, the Directive states that the ‘definition of trade secrets excludes current information, experience, and competences gained by workers in the course of their normal day to day functions’. This clarification had been added belatedly so that trade secrets would not restrict workers’ mobility, who otherwise, would not be able to express their ‘know-how’ to other employers. The Directive also protects against ‘the acquisition of trade secrets via the medium of workers’ and employee representatives’ rights to information and consultation.’ This is another belated compromise measure that addresses critics’ concerns over obstacles to communication between workers and employee representatives. Article 8 of the Directive allows employers to prosecute their former employees who they believe have illegally divulged trade secrets, for a period of up to six years following their departure from the company.