Departing Employees, Confidentiality Clauses and European Trade Secret Protection

Abstract Departing employees are a classic problem in trade secret law. Employees who wish to set up on their own or accept job offer from principal’s competitor may often be tempted take with them valuable and information the existing business. The law should protect employers against this. On other hand, have legitimate interest being able change jobs, not so protective as severely hamper labour mobility. According leading scholars, Directive 2016/943 protection of secrets does harmonise legal vis-à-vis departing employees. This leaves room for national legislators courts develop this important topic own. One might fear that could lead substantial differences within European Economic Area. article explores question particular focus many employers’ practice including obligations confidentiality employment contracts entering into separate non-disclosure agreements author shares view Directive, along much legislation implements it, gives considerable freedom how solve difficult cases employees, when ex-employee is bound by post-employment obligations. not, however, necessarily threat certainty, case-law prior seems had common traits. provide guidelines relevant parties’ interests safeguarded balanced also under Directive. has two main points substantive law: (1) an agreement generally prohibits disclosing using “trade secrets”, “business information” like – but decisive establishing employer taken “reasonable steps” information, required Directive; (2) concrete assessment whether former employee violated such contract differ they would absence agreement.