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

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