The implementation in Italy of the EU Directive concerning the protection of trade secrets

Trade Secrets: the implementation in Italy of the EU Directive n. 2016/943

DIRECTIVE (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF THE EU COUNCIL 

of June 8th  2016,

on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure

 “How the Italian legislative situation will be after the enactment of the EU Trade Secret Directive?” 

(Article written by Dott. Domenico Piero Muscillo)

The enactment of the EU Directive n. 2016/943 by the Italian Parliament

  1. The implementation in Italy of the EU Directive n. 2016/943:

According to article 19 of the abovementioned Directive, every EU Member (Italy included) have to implement in their own legal system the legislation concerning the protection of undisclosed know-how and business information (trade secrets) before June 9th 2018.

The Italian Parliament, in these last months, has been working on the enabling act (“Legge di delegazione europea 2016-2017” – the “2016-2017 EU Bill”)  in order to implement some European Directives included the EU Directive n. 2016/943. The bill concerning the abovementioned Directive has been voted and approved, at first reading, by the Senate of the Republic on August 2nd  2017 and therefore transmitted to the Chamber of Deputies for the first reading.

The “Bill”, meanwhile transformed in Law n. 163 approved on October 25th 2017 – entitled “Delega al Governo per il recepimento delle direttive europee e l’attuazione di altri atti dell’Unione europea – Legge di delegazione europea 2016-2017” – has been published on the Official Gazzette of the Italian Republic n. 259 on November 6th 2017.

In particular it contains the proxy to Italian Parliament to approve and implement the EU Directive n. 2016/943 “on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure” (L. N. 163/2017 – LEGGE DI DELEGAZIONE EUROPEA 2016-2017 – SEGRETO COMMERCIALE – Delega al Governo per l’attuazione della direttiva 2016/943/UE contro l’acquisizione, l’utilizzo e la divulgazione illeciti).

In article 15 of the “Bill” it is specified that the Government, in exercising the proxy in order to implement the EU Directive in question, has to follow the principles and criterion specifically indicated by the Parliament in the proxy in addition to the principles and the guidelines specified by the directive.

In particular:

  • modify the Industrial Property Code (Legislative Decree n. 30/2005) by introducing in it all the modifications and integrations which are necessary to allow the correct and entire implementation of the EU Directive n. 2016/943;
  • provide criminal and administrative law sanctionary measures proportionate and dissuasive in case of acquisition, use or unauthorized disclosure of know-how and disclosed business information in order to guarantee the compliance with all the duties foreseen by the directive;
  • upgrade the whole discipline by repealing, modifying and incorporating it to the current discipline, even the European one in order to assure the coordination with the new discipline and its whole rationalization.
  • The Government however has to keep in mind, in implementing the Directive in question, the broad legal protection granted to trade secrets and business information by article 98 and article 99 of the Italian Industrial Property Code and by article 623 of the Italian Criminal Code. Therefore the Italian Parliament has the onus to find some sort of balance in theme.

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