Abstract
The Dutch legal framework provides limited provisions on the protection of trade secrets, which can be found in criminal and employment law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
Wetboek van Strafrecht, Stb. 1881, 35, as amended on 13 September 2012, stb. 2012, 410 (“hereafter the Dutch Penal Code”).
- 2.
Article 273 Dutch Penal Code reads in full:
1. Liable to a term of imprisonment of not more than six months or a fine of the fourth category is he who intentionally:
(1) discloses specific information to which he has sworn secrecy related to a commercial, industrial or service organization in which he is or has been employed, or
(2) discloses or uses for the purpose of pecuniary gain data that have been acquired from a computerized system of a commercial, industrial or service organization that relates to this organization, if these data were at the time of disclosure or use not generally known and disclosure or use may lead to any disadvantage.
2. Not criminally liable is he who may have assumed in good faith that disclose was required by public interest.
3. Prosecution may only take place upon complaint of the management of the organization concerned.
- 3.
Boek 7 Burgerlijk Wetboek, Stb. 1992, 600, as amended on 14 June 2014, Stb. 2014, 216 (hereafter “the Dutch Civil Code”).
- 4.
Article 7:678 paragraph 2 Dutch Civil Code reads, as far as relevant in this context:
1. For the employer, urgent reasons as referred to in paragraph 1 of Article 677 are acts, characteristics or conduct of the employee, of such nature that consequently the employed cannot reasonably be expected to allow the contract of employment to be continued.
2. Urgent reasons may be deemed to exist if:
[…]
i) the employee discloses particulars regarding internal affairs of the company, that he ought to have kept secret;
- 5.
Article 7:611 Dutch Civil Code reads in full:
The employer and the employee are obliged to behave as a good employer and a good employee.
- 6.
Article 6:162 Dutch Civil Code reads in full:
1. A person who commits an unlawful act against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof.
2. As an unlawful act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.
3. An unlawful act can be attributed to the person committing the act if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles.
- 7.
Supreme Court 31 January 1919, NJ 1919/161 (Lindenbaum/Cohen).
- 8.
See Court of Appeal Arnhem 7 July 1987, ECLI:NL:GHARN:1987:AM1170 (Beekman/Mulder).
- 9.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Agreement establishing the World Trade Organization, effective 1 January 1995 (hereafter “TRIPs”).
- 10.
Article 39 TRIPs reads in full:
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.
- 11.
Court of Appeal’s-Gravenhage 29 March 2011, ECLI:NL:GHSG:2011:BP9490 (Ajinomoto).
- 12.
See for instance Court of Appeal Amsterdam 4 November 1971, BIE 1973, 81.
- 13.
See for instance District Court Amsterdam 14 December 2012, ECLI:NL:RBAMS:2012:BY8226.
- 14.
Article 272 paragraph 2 Dutch Penal Code.
- 15.
Article 6:74 Dutch Civil Code.
- 16.
Burgerlijke Rechtsvordering, Stb. 1828, 14, as amended on 7 March 2013, Stb. 2013, 92 (hereafter “the Dutch Code of Civil Procedure”).
- 17.
Article 834a Dutch Code of Civil Procedure.
- 18.
Supreme Court 13 September 2013, ECLI:NL:HR:2013:BZ9958. The Supreme Court bases the right to seize evidence on Article 843a and Article 730, that regulates seizure of property.
- 19.
Article 27 and 29 Dutch Code of Civil Procedure.
- 20.
Article 28 paragraph 4 Dutch Code of Civil Procedure.
- 21.
Article 22 Dutch Code of Civil Procedure.
- 22.
Article 51f Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Stb. 1925, 314, as amended on 13 December 2012, Stb. 2013, 10) (hereafter “the Dutch Code of Criminal Procedure”).
- 23.
Article 6:95 Dutch Civil Code.
- 24.
Article 6:97 Dutch Civil Code.
- 25.
Article 700 Dutch Code of Civil Procedure.
- 26.
Commission Regulation (EC) No 772/2004 of 7 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements.
Article 1(i) TTBER reads:
“know-how” means a package of non-patented practical information, resulting from experience and testing, which is:
(i) secret, that is to say, not generally known or easily accessible;
(ii) substantial, that is to say, significant and useful for the production of the contract products; and
(iii) identified, that is to say, described in a sufficiently comprehensive manner so as to make it possible to verify that it fulfils the criteria of secrecy and substantiality.;
Article 39(2) TRIPS reads:
Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
- 27.
See for example the Court of Appeal’s-Gravenhage 15 November 2011, ECLI:NL:GHSGR:2011:BU4306.
- 28.
Court of Appeal’s-Hertogenbosch 8 June 2004, ECLI:NL:GHSHE:2004:AQ5610.
- 29.
Court of Appeal’s-Hertogenbosch 10 February 2015, ECLI:NL:GHSHE:2015:445.
- 30.
Article 20, subsection 1 of the Works Councils Act (Wet op de ondernemingsraden, Stb. Stb. 1971, 132, as amended on 1 January 2015, Stb. 2014, 576.)
- 31.
Article 236 subsection k and article 233 lit. a of the Dutch Civil Code.
- 32.
Article 6:74 and 6:98 of the Dutch Civil Code.
- 33.
Article 6:95 of the Dutch Civil Code.
- 34.
Article 6:96 (1) of the Dutch Civil Code.
- 35.
District Court Oost-Brabant, 25 September 2013 confirmed by Court of Appeal Den Bosch 10 February 2015, ECLI:NL:GHSHE:2015:445 (Arte).
- 36.
District Court Zutphen 18 October 2006, 1ER 2007, no. 42, p. 154 (Arplas/AWL).
- 37.
Supreme Court 24 February 1995, NJ 1995, 450; JAR 1995/67.
- 38.
Article 3:296 of the Dutch Civil Code.
- 39.
Treaty on European Union, consolidated version, 2012/C 326/01, OJEU 26 October 2012 and Mededingingswet, Stb. 1997, 430, as amended on 24 March 2011, Stb. 2011, 162.
- 40.
See in this regard for example F.R.H. Hollander, Werknemersconcurrentie, hoe zit het met de bedrijfsgeheimen, Arbeid integraal 2008(2), p. 54.
- 41.
Article 273 of the Dutch Civil Code.
- 42.
Ambtenarenwet, Stb. 1930, 6, as amended on 17 December 2014, Stb. 2014, 576.
- 43.
Central and Local Government Personnel Act, article 125 quinquies, subsection 1.
- 44.
Central and Local Government Personnel Act, article 125 quinquies, subsection 3.
- 45.
- 46.
- 47.
Article 3:13 of the Dutch Civil Code.
- 48.
See in this line the Study on Trade Secrets and Confidential Business Information in the Internal Market 2013, prepared for the European Commission (contract number MARKT/2011/128/D), pp. 85–86 and pp. 401–405.
- 49.
Study on Trade Secrets and Confidential Business Information in the Internal Market 2013, prepared for the European Commission (contract number MARKT/2011/128/D), p. 401.
- 50.
Study on Trade Secrets and Confidential Business Information in the Internal Market 2013, prepared for the European Commission (contract number MARKT/2011/128/D), p. 405.
- 51.
H.J. de Kluiver, Overnamecontracten, letters of intent en garanties, O&F 2003(58), pp. 36–45.
- 52.
J.J. Allen en E.A. Groot, Kanttekeningen bij het voorstel voor de Richtlijn bescherming bedrijfsgeheimen. Wat brengt het ons (en wat niet), NtEr 2014(5), p. 166.
- 53.
See in this line J. Goettsch, De geheimhoudingsovereenkomst: aandachtspunten voor de fusie- en overnamepraktijk, V&O 2015(04), p. 51.
- 54.
See in this regard M. Schut, Knowhow: aandachtspunten in de rechtspraktijk, Maandblad voor Vermogensrecht 2010(2), pp. 17–19.
- 55.
Wet op het financieel toezicht, Stb. 2006, 664, as amended on 11 December 2014, Stb. 2014, 534.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Laan, V., Kloppenburg, M. (2017). The Netherlands. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_32
Download citation
DOI: https://doi.org/10.1007/978-3-319-46891-4_32
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-46890-7
Online ISBN: 978-3-319-46891-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)