Article 13

Conditions of application, safeguards and alternative measures

1.  Member States shall ensure that, in considering an application for the adoption of the injunctions and corrective measures provided for in Article 12 and assessing their proportionality, the competent judicial authorities shall be required to take into account the specific circumstances of the case, including, where appropriate:

a.  the value or other specific features of the trade secret;

b.  the measures taken to protect the trade secret;

c.  the conduct of the infringer in acquiring, using or disclosing the trade secret;

d. the impact of the unlawful use or disclosure of the trade secret;

e.  the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties;

f.   the legitimate interests of third parties;

g.  the public interest; and

h.  the safeguard of fundamental rights.


Where the competent judicial authorities limit the duration of the measures referred to in points (a) and (b) of Article 12(1), such duration shall be sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, use or disclosure of the trade secret.


2.  Member States shall ensure that the measures referred to in points (a) and (b) of Article 12(1) are revoked or otherwise cease to have effect, upon the request of the respondent, if the information in question no longer meets the requirements of point (1) of Article 2 for reasons that cannot be attributed directly or indirectly to the respondent.


3.  Member States shall provide that, at the request of the person liable to be subject to the measures provided for in Article 12, the competent judicial authority may order pecuniary compensation to be paid to the injured party instead of applying those measures if all the following conditions are met:

a.  the person concerned at the time of use or disclosure neither knew nor ought, under the circumstances, to have known that the trade secret was obtained from another person who was using or disclosing the trade secret unlawfully;

b.  execution of the measures in question would cause that person disproportionate harm; and

c.  pecuniary compensation to the injured party appears reasonably satisfactory. 


Where pecuniary compensation is ordered instead of the measures referred to in points (a) and (b) of Article 12(1), it shall not exceed the amount of royalties or fees which would have been due, had that person requested authorisation to use the trade secret in question, for the period of time for which use of the trade secret could have been prohibited.

Suitable Recitals

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