For more information on confidentiality agreements or the development of a confidentiality agreement, see below. German companies may also include confidentiality clauses in their employees` employment contracts. In addition, the Trade Secrecy Act will contain specific provisions on trade secrets. A court may consider a trade secret to be confidential, and the alleged offender and his or her lawyers must then keep the secret confidential after the end of the court proceedings (Article 15-17 of the Trade Secrets Bill). As a novelty in German procedural law, the Tribunal will also be able to restrict a party`s access to evidence that embodies trade secrets (Article 18 of the Trade Secrets Bill). Confidentiality or confidentiality agreements are usually signed by members of the board of directors of German companies. Confidentiality agreements are generally necessary to protect important business information that only directors and business leaders have access to. Confidentiality agreements may also include post-contractual clauses that protect the company`s interests after the conclusion of the cooperation. 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. The recommended confidentiality measures depend on the particular circumstances of the case, such as the value of a certain trade secret, its importance to business activity and the usual confidentiality measures in the cases concerned. In any event, the explanatory statement of the German Trade Secrets Act specifies that contractual provisions relating to the protection of secrecy as well as physical restrictions of access may be appropriate. Although German labour law does not provide for the inclusion of confidentiality clauses in employment contracts, employers may include such clauses on the basis of the provisions of the civil code. As a general rule, German employers include confidentiality clauses or have their employees sign confidentiality agreements to protect their trade secrets and avoid conflicts after the termination of the employment contract.