Directive (EU) 2016/943, the Trade Secrets Directive, gave the European Commission until 9 June 2026 to evaluate its impact and report to the European Parliament and the Council. Whatever that evaluation concludes, the test courts apply today has not changed: information is only protected if it is secret, has commercial value because it is secret and has been subject to reasonable steps to keep it secret. This article is for groups whose R&D, formulas or commercial know-how are shared between the EU and Latin America and want to check whether their protection would hold up in court.
Key takeaways
- Article 18(3) of the Directive set 9 June 2026 as the date for the Commission’s evaluation and report.
- Protection depends on three cumulative conditions in Article 2(1); the third, reasonable steps, is where most claims are won or lost.
- Limitation periods may not exceed six years under the Directive; Spain set three years.
- The same three-part definition appears in Article 39 of the WTO TRIPS Agreement, which also binds Latin American and African members.
What does the trade secrets directive evaluation cover?
Article 18 of the Directive set three reporting milestones. The final one requires the Commission to “carry out an evaluation of the impact of this Directive” and report to the Parliament and the Council by 9 June 2026. The earlier steps show how the review has been built:
| Article 18 milestone | Legal deadline | What is on the record |
|---|---|---|
| EUIPO report on litigation trends | 9 June 2021 | The EUIPO published Trade secrets litigation trends in the EU in July 2023, covering cases from January 2017 to October 2022. |
| Commission intermediate report on research, innovation, employee mobility and freedom of expression | 9 June 2022 | DG GROW commissioned a supporting study in June 2024, led by the London School of Economics and CSIL Milan; its stakeholder survey closed on 1 November 2024. |
| Commission evaluation of impact | 9 June 2026 | Deadline reached; the Commission’s trade secrets page did not list the report when this article was written. |
Until any follow-up is adopted, the national laws that transposed the Directive by 9 June 2018 (Article 19) still apply. In Spain, that is Ley 1/2019 de Secretos Empresariales, in force since 13 March 2019.
What does the Directive actually protect?
Under Article 2(1), a trade secret is information that meets all three requirements:
- It is secret: not generally known among, or readily accessible to, people in the circles that normally deal with that kind of information.
- It has commercial value because it is secret.
- It has been subject to reasonable steps, under the circumstances, by the person lawfully in control of it, to keep it secret.
The Directive also sets limits. Under Article 3, independent discovery and studying a lawfully obtained product are lawful; Article 5 protects, among others, disclosures that reveal wrongdoing in the public interest. Article 8 caps limitation periods at six years; Spain chose three years from when the holder knew who the infringer was (Ley 1/2019, Article 11). Article 9 lets courts restrict access to documents and hearings so that litigation does not destroy the secret it is meant to protect.
What counts as “reasonable steps” to keep information secret?
The Directive does not list them, and the standard is “under the circumstances”, so it depends on the information and the business. In practice, these are the measures we check first:
- An inventory of what you treat as secret, who owns it and where it is stored.
- Access limited by role, with logs that can be produced as evidence.
- Confidentiality clauses in employment contracts and NDAs with suppliers, distributors and licensees.
- Marking of confidential documents and clear rules on personal devices and cloud tools.
- Exit procedures: return of materials, reminders of obligations, revocation of access.
Measures that exist only on paper rarely persuade a court; you must be able to prove you applied them.
Why cross-border groups in the EU and Latin America should audit now
Trade secrets are not registered, so there is no office that keeps a record for you. When know-how moves from a Spanish parent to a subsidiary in Mexico or Colombia, the protection travels only as far as the contracts and controls go. Article 39 of TRIPS gives a common floor with the same three conditions, but procedures, limitation periods and remedies differ by country.
Spanish law allows a trade secret to be transferred and licensed (Ley 1/2019, Articles 4 and 6), so a written intra-group licence is the natural way to share know-how with affiliates.
What this means for your business
- Map your trade secrets by country and identify which entity controls each one.
- Test the reasonable steps against evidence: could you show a court the access logs, signed NDAs and exit records today?
- Align contracts across the corridor: employment clauses, supplier NDAs and intra-group licences should use consistent definitions.
- Decide in advance where you would sue and under which law, and diarise limitation periods.
If you want the audit run across several countries at once, our trade secret protection and IP litigation team can coordinate it, and our cross-border IP strategy service can fit the results into your wider portfolio.
Where companies get trade secret protection wrong
- Calling everything confidential. Blanket labels weaken the case for information that really matters.
- Letting know-how leave with departing staff because no one ran an exit procedure.
- Sharing formulas with a foreign subsidiary or distributor without a licence that says who owns improvements.
- Waiting too long: in Spain the action prescribes three years after the holder knew who the infringer was.
Frequently asked questions
What is the deadline for the Trade Secrets Directive evaluation?
Article 18(3) of Directive (EU) 2016/943 required the Commission to carry out an evaluation of the Directive’s impact and submit a report to the European Parliament and the Council by 9 June 2026. Earlier milestones were a EUIPO litigation report (2021) and an intermediate Commission report (2022).
Does the evaluation change the rules that apply now?
No. An evaluation report does not amend the Directive. The national laws that transposed it, such as Spain’s Ley 1/2019, continue to apply until any amendment is proposed, adopted and transposed. Assess your protection against the current definition and national procedure.
Are trade secrets protected the same way in Latin America?
The basic definition is similar, because Article 39 of the TRIPS Agreement requires WTO members to protect secret information with commercial value that has been subject to reasonable steps. Procedures, remedies and limitation periods differ by country, so cross-border groups need contracts and evidence that work in each jurisdiction.
Can IP Global Guard audit our trade secret protection across several countries?
Yes. We review your inventory, contracts and controls against the Directive and national law, draft or align NDAs and intra-group licences, and coordinate qualified local counsel where action is needed in Latin America or Africa. You work with one point of contact across the corridor.
How IP Global Guard can help protect your know-how
IP Global Guard, the IP services line of META Channel Corporation Limited, reviews confidentiality measures, contracts and licences across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship.
Tell us which formulas, processes or customer data matter most and where they are shared. We will tell you whether your reasonable steps would stand up and what to fix first. Ask for a trade secret review.
This article is general information, not legal advice, and reflects the position on its date of publication.
Sources
- Directive (EU) 2016/943 of 8 June 2016, Article 18 (reports)
- Directive (EU) 2016/943, Article 2 (definitions)
- Directive (EU) 2016/943, Article 3 (lawful acquisition)
- EUIPO, Trade secrets litigation trends in the EU (July 2023)
- European IP Helpdesk, New survey on the application of the Trade Secrets Directive (1 October 2024)
- BOE, Ley 1/2019, de 20 de febrero, de Secretos Empresariales (consolidated text)
- WTO, TRIPS Agreement, Article 39
