On June 28, 2019, the Luxembourgish Mémorial published the Law of June 26, 2019 on the protection of undisclosed know-how and business information better known as trade secrets implementing the EU Trade Secrets Directive 2016/943 after a one year delay. The recent Luxembourgish Law is a literal transposition of the EU Directive and provides a legal definition of “trade secrets,” which was up until now only defined by the courts. The EU Directive defined “trade secret” as information that (i) is secret, i.e. not publicly known or readily accessible to persons normally dealing with this kind of information, (ii) has commercial value because it is and remains a secret, and (iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. This definition thus includes any kind of sensitive business information that is kept secret by reasonable measures, such as market studies, business plans, pricing information, etc.
As of July 2, 2019, the Luxembourgish nationals will dispose of a variety of measures and remedies, including injunction and corrective measures and the possibility to claim damages for unlawful acquisition, use, or disclosure of the trade secret, but these actions will expire two years after the date the trade secret holder becomes aware of the violation and the identity of the infringer.
However, it is worth remembering that trade secret protections are not absolute, as other considerations might apply as a counterbalance. For example, there was a recent EU Directive of April 16, 2019 on the protection of persons reporting on breaches of Union law – better known as “whistle-blowers” – that provides for far-reaching protection mechanisms for people having acquired information on breaches in a work-related context which was also incorporated in the recent Luxembourgish Law.