German companies can also include confidentiality clauses in their employees` employment contracts. It may result that certain information about companies may be considered (subjectively) by that company to be confidential business information, but can no longer be considered a trade secret under the Trade Secret Protection Act in the absence of such appropriate confidentiality measures. Companies are therefore required to develop and implement appropriate protection concepts for their trade secrets, as the absence of such measures can lead to a total loss of legal protection. Even if 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. German employers usually include confidentiality clauses or have their employees sign confidentiality agreements in order to protect their trade secrets and avoid conflicts after the termination of the employment relationship. German IT companies are usually those that draw up confidentiality agreements to protect their software and computer programs from use by employees who leave the company. But the creation of software and other computer programs is also covered by the provisions of the German Intangible Property Act. On 26 April, the new Trade Secret Protection Act (GeschGehG) transposing EU Directive 2016/943 on the protection of trade secrets against acquisition, unlawful use and disclosure (Trade Secret Directive) entered into force into German law. The new law provides a broader legal framework for the protection of trade secrets and requires trade secret holders to guarantee and document appropriate confidentiality measures, both within their organisation and with regard to third parties. It therefore seems likely that many companies will have to review their internal organisation in the light of the new requirements. Since the Law on the Protection of Trade Secrets is already in force, time is of the essence. Confidentiality or confidentiality agreements are usually signed by members of the management board of German companies. Confidentiality agreements are generally necessary to protect important business information that only directors and officers of companies have access to.
Confidentiality agreements may also include post-contractual clauses that protect the interests of the company after the conclusion of the cooperation. Among the laws that allow the establishment of confidentiality clauses are: according to the new definition of trade secrets in the Trade Secret Act, the legal protection of a company`s confidential business know-how now depends in particular on the existence of « appropriate confidentiality measures » (e.g.B contractual confidentiality obligations, confidentiality agreements (ASNs) or technical access controls such as encryption). The burden of proof that appropriate confidentiality measures have been taken and that there is therefore a commercial secret lies with the undertaking concerned. In addition, training of staff in the proper management of trade secrets may be necessary. In addition, companies should check whether they are sufficiently protected against so-called « self-engineering », which should be expressly prohibited by contractual agreements with employees and counterparties. In the absence of appropriate contractual regulation, « self-engineering » (i.e. the observation, study, dismantling or testing of a product or object) is now expressly permitted (within the framework of the law against unfair competition and in compliance with protected intellectual property). As Europe`s largest economy, Germany has strong legislation to ensure the protection of trade secrets.
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