Companies should use available contractual means to protect secrecy. First, these are contracts with workers: explicit confidentiality clauses may become more important than before. It may also be a good place to expressly prohibit employees from using information that is owned by their former employer. In addition, post-contract non-competition clauses may be considered, particularly in contracts with selected key workers, because clauses must be formulated on a case-by-case basis and because post-contract withholding costs to the employer. As Europe`s largest economy, Germany has strict legislation to guarantee the protection of trade secrets. In Germany, trade and business secrets are protected by several regulatory frameworks and companies may also include confidentiality clauses in their contracts or even develop confidentiality agreements. The Federal Constitutional Court allows the inclusion of confidentiality clauses for the protection of trade and business secrets when German companies can also include confidentiality clauses in their workers` employment contracts. The impetus given to the Trade Secrets Protection Act comes from the European Union`s 2016/943 Directive, a directive on the protection of undisclosed know-how and commercial information (trade secrets) against illegal acquisition, illegal use and disclosure. The directive aims to harmonize the protection of trade secrets in Europe; it had to be transposed into national legislation by 9 June 2018. If the directive is not yet transposed, as is the case in Germany, individuals can, to some extent, avail themselves of the directive itself, arguing that the existing national law must be interpreted as being in accordance with the directive. new essential rules, as discussed above (obligation to take appropriate measures to protect secrecy; eligibility for reverse engineering; Responsibility even without a guilty law) stems from the directive itself; Therefore, these new rules are potentially relevant to any company operating in Germany since 9 June 2018, when the deadline for transposing the directive into German law expired.
In addition, trade secrets must be protected in contracts with third parties such as customers, suppliers, licensees or research and development partners. Confidentiality agreements (NOAs) will often involve penalties because it may be difficult to determine a certain amount of harm suffered by the unlawful disclosure of a trade secret and because the sanction may have an additional deterrent effect. In light of the new reverse engineering rules, an explicit ban on self-engineering may also be included in trade agreements. A confidentiality agreement (or confidentiality agreement) is a legal document between two parties who wish to exchange confidential information between them, while the law prohibits both parties from disclosing the information to another person or entity. The types of confidential information that may be applicable are inventions, trade secrets, new products or manufacturing processes, or any other trade secret or other data. The agreement may be unilateral (to prevent one party from disclosing the information) or vice versa (both parties cannot disclose confidential information from the other party).