Is the EU Obliged to Improve the Protection of Trade Secrets? An Inquiry into TRIPS, the European Convention on Human Rights and the EU Charter of Fundamental Rights

European Intellectual Property Review, Vol. 34, No. 10, pp. 673-688, 2012

16 Pages Posted: 20 Sep 2012 Last revised: 8 Mar 2014

See all articles by Marco Bronckers

Marco Bronckers

Leiden University - Leiden Law School

Natalie Marie McNelis

Independent

Date Written: September 19, 2012

Abstract

This article examines the treatment in the EU of trade secrets, which are not recognized in many EU Member States as intellectual property. The authors analyze the EU’s obligations under international treaties (notably TRIPS) and under European law (notably the EU Charter of Fundamental Rights and the European Convention on Human Rights). They conclude that the EU is already subject to the obligation to protect trade secrets as intellectual property as a matter of positive law. They note that the EU institutions as well as a sizeable number of EU Member States have not yet fully taken these obligations on board.

The authors show that conclusion has direct implications for various regulatory activities of the EU, both internally and externally. Internally, the EU has new powers to harmonize and improve the protection of trade secrets in the Member States. The EU itself, notably in competition law enforcement, needs to approach trade secret protection more consistently, if not differently. Externally, in negotiations with third countries, the EU needs to upgrade the protection of trade secrets as well.

Keywords: trade secret protection, intellectual property, property rights, competition law, WTO, TRIPS, EU, European Convention on Human Rights, EU Charter on Fundamental Rights

JEL Classification: D40, D42, F13, K11, K21, K33, K42, L12, L40, L41, L43

Suggested Citation

Bronckers, Marco and McNelis, Natalie Marie, Is the EU Obliged to Improve the Protection of Trade Secrets? An Inquiry into TRIPS, the European Convention on Human Rights and the EU Charter of Fundamental Rights (September 19, 2012). European Intellectual Property Review, Vol. 34, No. 10, pp. 673-688, 2012, Available at SSRN: https://ssrn.com/abstract=2149101

Marco Bronckers (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Natalie Marie McNelis

Independent ( email )

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