Balanced trade secret protection ? Search for a balance with the freedom to conduct a business

Under the Trade Secrets Directive, the legal protection of trade secrets has its basis in unfair market practices. The unlawful acquisition, use or disclosure of a trade secret is prohibited under the provisions of that Directive and its national transposition, except for a number of expressly provided exceptions. The extent of these provisions, however, is still uncertain. Nevertheless, the interpretation of these concepts is of great importance. After all, trade secret protection has a (potentially strong) indirect anti-competitive effect. An excessively broad interpretation of the open standards in the trade secret regime could lead to an excessive curtailment of the freedom to conduct a business. Conversely, an excessively restrictive interpretation of the concepts could impair the effectiveness of the trade secret regime. This research examines (1) which guarantees for the balance between the freedom of enterprise and trade secrecy protection the trade secrecy regime (as it is currently interpreted) provides, how they are interpreted and how they can be explained, (2) to what extent this balance is adequate and (3) in which way this balance can possibly be improved.