Prior to the adoption of Directive 2016/943 on trade secrets (“Trade Secrets Directive”), the protection of trade secrets in Belgium was not governed by a single regulation specific to trade secrets, but was ensured by scattered legal provisions stemming from different regulations. In view of implementing the above-mentioned Directive, the legislator decided to take advantage of the pre-existing regulatory framework rather than to adopt a single autonomous regulation. To this end, the legislator adopted the Law of 30 July 2018 (which entered into force on 24 August 2018), amending several pre-existing texts, including the Code of Economic Law (CEL) and the Judicial Code (JC), as well as the Law of 3 July 1978 on employment contracts (“Law on Employment Contracts”).

In addition to the specific protection regime put in place following the transposition of the Trade Secrets Directive, the trade secrets holder may possibly benefit from any of the following provisions, provided that the specific conditions set out in these provisions are met:

• Article 309 of the Criminal Code (CrC), which punishes “anyone who maliciously or fraudulently communicates the secrets of the factory in which they were or still are employed”;
• Article 1382 of the Civil Code (CC), which encompasses the general law of civil liability;
• Article VI.104 CEL, which sanctions any act of unfair competition between companies;
• contract law, in particular Articles 1134 and 1135 CC, which encompass the principle of good faith performance of contracts;
• other rules, such as professional secrecy, which applies to (among others):
1. certain regulated professions;
2. financial regulations on insider trading;
3. criminal provisions on computer theft, breach of trust, corruption;
4. competition law;
5. public procurement law;
6. pre-contractual information exchanged in the context of commercial partnership agreements.

Please note: some of these provisions only offer protection for a certain type of information, which may differ slightly from “trade secrets” as defined in the CEL; see 1.4 Elements of Trade Secret Protection.

Any information is a priori likely to be protected as a trade secret, whatever its subject-matter and/or nature (technical, commercial, etc) and whatever the form (written, oral, etc) and medium (paper, digital, etc) in which it is expressed, provided that it fulfils the cumulative conditions listed in Article I.17/1, 1°, CEL to qualify as a trade secret; see 1.4 Elements of Trade Secret Protection.

A multitude of information can be qualified as a trade secret as long as it meets the cumulative conditions set out in Article I.17/1, 1°, CEL.

Technical information:

• unpatented or unpatentable inventions;
• algorithms;
• improvements or modifications of patented inventions;
• production processes/methods;
• chemical recipes and formulas;
• plans, diagrams, drawings, etc.

Commercial information:

• price lists;
• information on commercial strategy;
• lists of customers and/or suppliers;
• offers to customers;
• contracts used in the company;
• organisational charts and staff lists;
• surveys, market research;
• turnover/margins achieved;
• employee remuneration, bonus schemes.

According to Article I.17/1, 1°, CEL, any information which meets the following cumulative conditions can qualify as a trade secret:

• it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known to, or readily accessible by, persons within the circles normally dealing with the kind of information in question;
• it has commercial value because it is secret;
• it has been subject of reasonable steps, under the circumstances, by the person lawfully in control of it to keep it secret.

Once the above conditions are met, an information can qualify as a trade secret, irrespective of the completion of any formality.

The mere fact that information is confidential is not sufficient for it to be qualified as a trade secret. The confidentiality of the information must be the result of a choice by its holder, who must be able to demonstrate that they have adopted specific “reasonable steps” to keep the secret.

Article I.17/1, 1°, CEL does not specify what is meant by “reasonable steps”, but it does state that the reasonableness of the measures to be taken must be assessed “under the circumstances”. It is therefore not possible to determine in advance and in the abstract which measures may or may not be regarded as “reasonable” within the meaning of Article I.17/1, 1°. This assessment will always have to be made on a case-by-case basis. In this respect, the following elements may be taken into consideration:

• nature of the information considered;
• size and/or financial means of the company/holder;
• sector in which the company is active;
• costs generated by the measures adopted.

Pursuant to Article 17, 3°, of the Law on Employment Contracts, employees are obliged to refrain, both during the contract and after its termination, from unlawfully acquiring, using or disclosing, a trade secret, of which they may have become aware in the course of their employment. Disclosure of trade secrets to employees is therefore, in principle, not likely to affect the availability of the related protection since the law automatically imposes an obligation of confidentiality on employees.

Article XI.332/3 CEL expressly identifies a series of cases in which the acquisition of a trade secret will be considered lawful even if the holder did not expressly consent thereto. These include obtaining a trade secret as a result of:

• an independent discovery or creation;
• the reverse engineering of a product or object that has been made available to the public or which is lawfully in the possession of the person obtaining the information, if it is not contrary to a legally valid duty to limit the acquisition of the trade secret.

In both cases, however, the law expressly refers only to the acquisition of a trade secret, which means that, although lawfully acquired, the holder will be able to object to the subsequent use and/or disclosure of the trade secret.

There are no specific provisions for trade secrets protection that are unique to computer software and/or technology.

In theory, trade secrets protection can last in perpetuity (ie, as long as the protected information remains secret). In practice, however, account must be taken of the particular circumstances of the case, in particular the persistence over time of the commercial value of the trade secret, this criterion being one of the cumulative conditions for information to qualify as a trade secret. For example:

• some information only has value (economic, commercial, competitive, etc), and will therefore only be susceptible to protection for a limited period of time (eg, a customer list, a price list);
• other information is likely to be valuable, and therefore protectable as a trade secret, for a much longer period of time, or even as long as it remains secret (and therefore a priori without time limitation).

Although there is an instinctive tendency to think that the disclosure of a trade secret automatically leads to the end of its protection, this statement must be tempered. A voluntary disclosure – for example, in the context of a contractual relationship – does not necessarily put an end to the protection if the holder takes the necessary steps to circumscribe the limits within which the disclosure takes place and to determine the conditions under which the third party will be able to use and, if necessary, disclose the information in question themselves. The condition of secrecy does thus not imply that the trade secret is not known and/or not disclosed to anyone, but only that it is not “generally known” or “readily accessible”.

Accidental disclosure is more problematic and is likely to cause the trade secret to lose its special status if it is not quickly controlled.

First of all, it should be noted that, unlike intellectual property (IP) rights, trade secrets do not confer a right of “ownership”, but only offer the trade secrets holder the right to oppose acts of misappropriation. Thus, the trade secret cannot strictly speaking be licensed (or assigned).

Beyond this terminological precision, the principle is that of contractual freedom. The trade secrets holder is therefore entitled to enter into a contract with a third party of their choice with a view to setting up a system equivalent to a licence (which, in practice, is generally qualified as such). The law does not provide for any conditions specific to trade secrets for the validity and/or enforceability of this contract.

Although not required by law, since a trade secret is only protected as long as it is secret and provided the holder has taken reasonable steps to keep it secret, it is strongly advised that the holder granting a licence does so by means of a written contract. Under the terms of this contract, the holder must clearly define the subject matter of the contract and the acts that may be performed by the third party in relation to the trade secret. In this respect, it is recommended that the third party be expressly prohibited from granting a licence and/or conferring any right on the trade secret to another third party without the original holder’s express authorisation.

While trade secrets protection is largely inspired by and, in practice, resembles the protection of IP rights, a trade secret is not strictly speaking an IP right, but falls within the field of unfair competition. 

Trade secrets differ from IP rights in several respects:

• the information covered by the trade secret is not strictly speaking the property of its holder, unlike an IP right which, once granted, is literally the (intellectual) property of its holder, at least for a certain period of time;
• a trade secret does not confer on its holder an exclusive right of prohibition, but only establishes rules of good conduct (similar to and expressly echoing the law on unfair competition) aimed at preserving the confidentiality of commercially valuable information and, consequently, sanctioning any act of acquisition, use and/or disclosure carried out in violation of these rules;
• by definition, trade secrets are confidential, whereas IP rights are public;
• unlike many IP rights, no formalities are required to protect a trade secret;
• trade secrets protection is virtually unlimited in time (see 1.9 Duration of Protection for Trade Secrets), whereas IP rights protection is limited in time.

While trade secrets are distinct from IP rights (see 1.11 What Differentiates Trade Secrets from Other IP Rights), they can be complementary and, in some cases, co-exist:

• information that is of some interest (commercial and/or technical) to a company, but which is not protectable as an IP right, can be protected by keeping it confidential;
• before filing a patent application, a company must ensure that all information relating to the invention it intends to patent is kept confidential, otherwise the invention may be considered lacking in novelty and/or inventive character in the light of the information disclosed prior to the filing of the patent application, which may result in the invalidity of the patent;
• a company may decide to keep confidential information that could otherwise be protected by an IP right for strategic reasons (potentially unlimited duration of protection, absence of formality, absence of publication that could help the competition, etc);
• trade secrets can be used in addition to IP rights – thus, for example, a company may decide to patent a certain process, but:
1. to draft its patent in such a way as to disclose only what is strictly necessary to benefit from the patent, keeping for itself certain particular and/or privileged modes of application and/or implementation of its process; and/or
2. not to disclose improvements which could be made subsequently.

In theory, since a claimant is free to choose the legal basis of their claim, it is possible to bring a claim relating to a trade secret without invoking the legal provisions specific to trade secrets misappropriation. In practice, however, it is likely that the concept of misappropriation and the corresponding legal provisions will eventually be discussed, possibly alongside the other grounds invoked by the claimant.

Article 309 CrC provides that “anyone who maliciously or fraudulently communicates the secrets of the factory in which they were or still are employed” is punished by imprisonment and a fine.

From the outset, it should be noted that the notion of “secrets of the factory” is not equivalent with the notion of trade secret as defined by the CEL, as several case law decisions and authors interpret it in a restrictive way and limit it to information of a technical nature.

Moreover, only the actual disclosure of the secret is sanctioned. The mere risk of disclosure is not sufficient to incur criminal liability. Furthermore, the mere use of the secret for one’s own benefit, without the secret being disclosed, is not sanctioned.

In addition, only the author of the unlawful disclosure will be sanctioned, whereas the third party who benefited from it will not, unless it is proved that they were complicit in the disclosure in question.

Finally, for the trade secrets misappropriation to constitute a criminal offence, the unlawful disclosure must have taken place and the infringer must have acted intentionally, knowingly or recklessly (“maliciously or fraudulently”), in order to cause damage to the holder and/or to obtain an unlawful benefit. Disclosure through mere indiscretion, negligence or ignorance will therefore not suffice.

The rules of private international law that determine when a claim relating to an act committed abroad are applicable. A Belgian court should therefore be able to take jurisdiction over a case involving a trade secrets misappropriation that happened abroad if the claimant succeeds in establishing a link with the Belgian territory in accordance with the applicable rules, for example:

• if the infringer is established in Belgium;
• if part of the misappropriation acts took place in Belgium;
• if the parties are bound by a contract under which they have agreed on a choice-of-court clause choosing Belgium.

Unlike IP rights holders, trade secrets holders do not have an exclusive right to use the protected information and, consequently, to prohibit a third party from using it during a specific period of protection. The trade secrets holder “only” has the right to protect the trade secret against the following acts which, when carried out without their consent, will be considered unlawful (Article XI.332/4 CEL):

• the acquisition of a trade secret by:
1. unauthorised access to, appropriation or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secrets holder, containing the trade secret or from which the trade secret may be deduced;
2. any other conduct which, under the circumstances, is considered contrary to honest commercial practices;
• the use or disclosure of a trade secret by a person who:
1. acquired the trade secret unlawfully;
2. breached a confidentiality agreement or any other duty not to disclose the trade secret;
3. breached a contractual or any other duty to limit the use of the trade secret;
• the acquisition, use or disclosure of a trade secret by a person who, at the time of the considered act, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from a person who was unlawfully using or disclosing the trade secret;
• the production, offering or placing on the market of infringing goods, or the import, export or storage of infringing goods for these purposes by a person who knew or ought, under the circumstances, to have known that the trade secret was used unlawfully.

The elements to be demonstrated in support of a claim for trade secrets misappropriation do not really differ depending on whether the envisaged action is directed against one of the trade secrets holder’s (former) employees or against any other person.

The only element specific to the relationship with an employee is that Article 17, 3° can only be invoked (and applied) in case of misappropriation of trade secrets of which the employee may have become aware in the course of their employment. In practice, this will not have any real impact on the evidence to be provided in support of the misappropriation claim, but will have an impact on the applicable limitation period and on the jurisdiction to hear the claim; see 5.2 Limitations Period and 5.4 Jurisdiction of the Courts.

The trade secrets protection regime does not impose any particular obligations on those who wish to enter into a collaboration. Their relationship will therefore be subject to ordinary contract law (which governs both written and oral contracts and can therefore be applied to any form of collaboration), which leaves the greatest freedom to the parties, subject to the mandatory rules of public policy and the general legal principle of loyalty and good faith which must govern both the conclusion and performance of any contract (Articles 1134 and 1135 CC). 

Although the law does not provide for any specific obligation in this respect, it is recommended that persons wishing to collaborate on trade secrets clearly define the purpose of their collaboration, and thus not only the information considered as trade secrets but also the reasons for which they are exchanged, as well as the acts that may be carried out with such information by either party, the measures taken to preserve their secrecy, etc.

There are no rules on industrial espionage specific to trade secrets, either in terms of applicable conditions, available actions and/or remedies. The general regime for trade secrets protection therefore applies.

It is not possible to determine in abstract what are the “best practices” for trade secrets protection. This is a practical question, the answer to which will vary not only according to the sector concerned, but also considering the nature of the information to be protected, the resources of the company concerned, etc. Ideally, the measures adopted to preserve the secrecy of trade secrets will fall within the general framework that can be summarised as follows (to be adapted depending on the specific circumstances of the case).

Identification and Classification

Upstream:

• identify the information circulating within the company;
• define levels of confidentiality (eg, based on potential harm if disclosed);
• classify information accordingly;
• document the identification and classification steps taken (so that it can be demonstrated later that trade secrets have been identified and treated as such).

Downstream:

• identify the information that needs to be communicated;
• identify the level of confidentiality;
• identify to whom and how the information in question can/should be communicated;
• document what information has been disclosed, to whom and how, etc.

Protection Tools

Once information has been identified and classified according to its degree of sensitivity, three types of measures can be adopted to preserve its secrecy.

• Contractual measures – conclusion of non-disclosure agreements (NDA), insertion of a confidentiality, and possibly non-competition, clause in a main contract (eg, with an employee, a consultant, a supplier, a client, a partner, a subcontractor).
• Digital measures – storage of information on the company’s own servers, encryption of information according to the level of confidentiality, access rights and authentication (password, etc), access restriction (group/role system, use of code, etc), inaccessibility of all or part of the network outside the company, no transfer of information possible or only via a secure site, restriction of copying/downloading of documents, back-up and/or destruction of information after a certain time.
• Physical measures – securing all or part of the building, entrance control, access locks/badges, registration of all visitors and signing of a waiver on entry, restriction on use of cameras or smartphones, confidentiality notice/marking of documents, disclaimers in emails and request for confirmation from recipient, video surveillance, clean desk policy, document copying/destruction policy, registration or deposit of more sensitive information with a specialised body.

Organisational Measures

In addition to the above-mentioned measures, the holder may also adopt organisational measures aimed at ensuring the information of the persons subject to the adopted protection measures and, consequently, at guaranteeing their effectiveness, such as:

• designation of persons responsible for the effective implementation of the protection measures;
• adoption and publication of a code of conduct/internal rules;
• providing for audits and updates of the protection measures;
• training staff on the protection of sensitive information and/or in information technology;
• conducting an exit interview with outgoing staff (see 3.2 Exit Interviews).

There is no general rule obliging companies to organise exit interviews and/or, when a company decides to do so, obliging the employee to participate. Companies are therefore free to decide whether and, if so, how to organise such measures and each employee is free to agree or not to participate.

If the employee agrees to take part in these discussions, it is then advisable to expressly identify the trade secrets, and more generally the sensitive information – which the employee has come into contact with in the course of their work and which they may under no circumstances continue to use after the end of their employment – be expressly identified. Finally, it is recommended to draw up some kind of minutes of the exit interview, which will be signed by the parties present and subject to an obligation of confidentiality.

It should be noted that while the employer is free to ask about the new job of the departing employee, the latter is not obliged to provide any information on this subject.

The prohibition to disclose trade secrets lawfully obtained in the course of their employment cannot prevent an employee from using the experience and know-how, or even the knowledge specific to their (former) employer, acquired during their time of service, provided that these are not trade secrets. In this sense, Article XI.332/2 CEL expressly provides that the provisions on trade secrets protection may in no case limit the use by employees of:

• information that does not constitute a trade secret within the meaning of Article I.17/1, 1°, CEL;
• experience and skills acquired in an honest manner in the normal course of their duties.

The law does not define what is meant by “acquired experience and skills” and does not provide any criteria to distinguish them from protected trade secrets. It will therefore be a case-by-case assessment that, in practice, will often give rise to delicate debates as the distinction is not always easy to make – in some cases the secret may be effectively indistinguishable from the experience acquired by the employee in the normal course of their duties.

Finally, it should be noted that the law does not recognise the doctrine of “inevitable disclosure”. The employer will therefore, in principle, always have to establish the act of misappropriation that they intend to invoke against their (former) employee.

When a company hires a former employee of one of its competitors, it is advisable to organise an entry interview during which the new employee’s function is defined as clearly as possible, as well as the experience and personal skills acquired in the past (whether in the service of their former employer or elsewhere) that they may lawfully use in this context. At the same time, it is recommended that the employer expressly draws their new employee’s attention to the fact that they are prohibited from revealing them any trade secrets they may have acquired in the course of their previous employment(s). It is also recommended to put this in writing in the course of the entry interview, and such document should be signed by both parties.

If there is no entry interview, it is recommended that the employer at least makes the new employee sign a document (or a clause in the employment contract) in which they undertake not to divulge any trade secrets of their former employer(s) in the course of their new employment.

Each party must prove the facts they allege and, consequently, provide the other party (and the judge) with the documents likely to support their claims (Article 736 and 870 JC and Article 8.4 CC). Thus, before bringing an action for alleged trade secrets misappropriation, the claimant must ensure that they have sufficient evidence to establish that:

• the allegedly misappropriated information is indeed a trade secret in the legal sense of the term (see 1.4 Elements of Trade Secret Protection – ie, it is secret, has commercial value and has been subject to reasonable steps to keep it secret);
• the trade secrets relied upon were acquired, used and/or disclosed unlawfully (see 2.1 The Definition of Misappropriation).

Depending on the legal provision invoked in support of their action, the trade secrets holder must also ensure that they have sufficient evidence to establish that they meet the specific criteria of the provisions in question. For example, if they invoke Article 309 CrC, they will have to establish, inter alia, that the disclosure at issue was “malicious or fraudulent” (which is not required in civil matters); however, if they invoke Article 17, 3° of the Law on Employment Contracts, they will have to establish, inter alia, that the misappropriation at issue concerns a trade secret of which the employee became aware in the course of their employment.

In the absence of sufficient evidence, the claimant’s action may be declared unfounded, or even reckless and vexatious if it appears that it was devoid of any reasonable ground ab initio.

If there is insufficient evidence to support the claim, the claimant may seek to make use of certain procedural mechanisms specifically designed to enable them to gather evidence prior to the commencement of proceedings (see 5.7 Obtaining Information and Evidence).

Pursuant to Article XI.342/2 CEL, trade secrets claims are barred after five years from the day after the trade secrets holder became aware of the unlawful conduct and the fact that it constitutes a trade secrets misappropriation, and of the infringer’s identity. Trade secrets actions are, in any case, time-barred after 20 years from the day after the misappropriation took place.

However, actions arising from an employment contract are barred by one year from the termination of the contract or by five years from the fact which gave rise to the action, without the latter period exceeding one year from the end of the contract (Article 15 of the Law on Employment Contracts).

Finally, Article XVII.5 CEL specifies that the cease-and-desist action (see 5.3 Initiating a Lawsuit) may no longer be brought one year after the end of the facts invoked. 

Once the trade secrets holder has sufficient evidence to support their claim (see 5.1 Prerequisites to Filing a Lawsuit), they can opt for different procedural avenues.

• Summary proceedings for the granting of preliminary measures (eg, provisional cease-and-desist order, protective seizure measures). To succeed in summary proceedings, the claimant must establish that:
1. the matter is urgent;
2. the allegedly misappropriated information qualifies, at least prima facie, as a trade secret;
3. the requested measures do not affect the merits of the case.
• Cease-and-desist proceedings aimed at obtaining a cease-and-desist order on the merits, possibly accompanied by accessory measures (eg, publication of the decision). This procedure is called “as in summary proceedings” because it is processed in an accelerated way compared to the “ordinary proceedings” on the merits, but it does not allow for an award of damages in addition to the injunction.
• Ordinary proceedings on the merits to obtain both an injunction (possibly with accessory measures) and damages.

In all three cases, the action must be brought by way of a writ of summons, in which the trade secrets holder must set out their claims and the grounds on which they are based, and which will be served on the alleged infringer by a bailiff (in particular to inform them of the date of the hearing).

In cases where the holder invokes extreme urgency, they may bring their action by means of a unilateral request for preliminary measures in an ex parte procedure.

Pursuant to Article XI.342/1 CEL, the company courts (and their president) established at the seat of a court of appeal have exclusive jurisdiction to hear all trade secrets claims, with the exception, however, of disputes relating to trade secrets misappropriation committed during the term of an employment contract, which falls under the exclusive jurisdiction of the labour courts.

This exclusive jurisdiction applies even in the case of a contractual clause to the contrary (which will be considered null and void), but does not prevent the parties from bringing their dispute before arbitration courts.

As stated in 5.1 Prerequisites to Filing a Lawsuit, each party must prove the facts they allege. There is, however, no specific rule as to the elements that the claimant can invoke to establish the alleged trade secrets misappropriation, so that the general law of evidence applies. In this respect, the common rules applicable can be summarised as follows.

• Evidence must be adduced with a reasonable degree of certainty. However, when it is a question of proving a negative fact (such as the secrecy of information), proof of the likelihood of this fact may suffice.
• Proof may be provided by any means of evidence, including written documents, witnesses, presumptions of fact, confession and oath (see Book III of the new Civil Code).

Although the claimant can never be believed on the basis of their word alone, in practice there is a certain gradation in the degree of certainty that the evidence to be produced must have, depending on the procedure in question.

• When acting in summary proceedings with a view to obtaining a measure to gather evidence (see 5.7 Obtaining Information and Evidence), the claimant must, by definition, not be able to prove their claims with certainty, otherwise they would not need to request the preliminary measure in question. At this stage, the claimant may therefore simply establish the plausibility of their claims.
• While the rule is in principle the same when the claimant acts in summary proceedings to obtain other preliminary measures such as a seizure of the infringing goods and/or a provisional cease-and-desist order, it is commonly accepted that the threshold of plausibility will be higher than in the case where mere measures of evidence gathering are sought.

When acting on the merits, the claimant can no longer simply establish the plausibility of their claims, but must provide “definite” proof of what they allege (subject to the possibility of proof of the likelihood mentioned above).   

At the summary proceedings stage, the president of the court may order the preliminary seizure of (alleged) infringing goods or the handing over of such goods, to prevent their entry or circulation on the market (Article 584, §5, 6°, JC). The president of the court may also appoint sequesters and/or order any measure necessary to safeguard the rights of those who cannot provide for them, which may also lead to the adoption of seizure measures.

Seizure measures or delivery of infringing goods may also be ordered at the merits stage, possibly accompanied by a measure of destruction of the goods (see Article XI.336/3 CEL).

Several procedural mechanisms exist to enable a trade secrets holder to gather evidence of an alleged misappropriation.

• In ongoing inter partes proceedings, the court may order a party or a third party to the proceedings to produce a specific document containing evidence of a relevant fact (Article 871 and 877 JC). If the party ordered to produce a document fails to do so “without good reason”, they may be ordered to pay damages.
• Ex parte, prior to the commencement of proceedings: under Article 584 JC, the president of the court may order preliminary measures to gather and secure evidence of the facts, in particular with a view to establishing a trade secrets misappropriation. To obtain such measures unilaterally (and thus derogate from the adversarial nature of the proceedings), the claimant must demonstrate an “absolute necessity”. In this respect, the claimant may, for example, invoke the extreme urgency of the situation (ie, that any delay would cause irreparable harm) or the risk that the evidence would disappear (ie, be destroyed) if the other party were warned. Where such a measure is granted, the judge will normally appoint an expert to collect the evidence referred to in the order. The information collected will then normally be retained by the expert until the parties have had the opportunity to discuss its fate (ie, the possibility for the claimant to access and use it) in an adversarial debate on the merits.

In both cases, the claimant will have to establish that there are “serious and specific indications” that the party against whom the proposed measure is sought is in possession of documents containing evidence of a fact relevant to the resolution of the dispute. In this respect, it is generally required that the claimant identifies with a certain degree of precision (under the circumstances of the case) the documents to which they intend to have access (through the appointed expert), otherwise their request can be rejected as contrary to the prohibition of fishing expeditions.

Article 871bis JC provides for the possibility for the judge to adopt – ex officio or at a party’s reasoned request – the following measures to protect any trade secrets (likely to be) disclosed and/or used in the course of judicial proceedings, irrespective of whether these proceedings directly concern a trade secrets misappropriation.

• The judge may order a general duty of confidentiality on all persons (parties, lawyers, court staff, etc) who have or are likely to have knowledge of (alleged) trade secrets as a result of their participation in legal proceedings or their access to documents forming part of those legal proceedings. This measure will continue during and after the procedure, as long as the protected information is considered to be an (alleged) trade secret.
• In addition to the general measure mentioned above, the judge may order the following specific measures:
1. limit the number of persons who may have access to all or part of the documents produced in the course of the proceedings;
2. limit the (number of) persons who may have access to hearings (and related documents);
3. make available to persons not expressly authorised to have access to documents and/or hearings a non-confidential version of their decision.

Any person who fails to comply with the general obligation of confidentiality and/or the additional measures put in place by the court may be fined between EUR500 and EUR25,000, without prejudice to any damages that may be claimed otherwise.

In order to defend against an allegation of trade secrets misappropriation, the defendant can rely on two main types of arguments.

• Procedural means to try having all or part of the claim declared inadmissible or unfounded:
1. lack of urgency in the case of inter partes application for preliminary measures;
2. lack of absolute necessity in the case of ex parte request;
3. vague and general, and therefore potentially abusive, nature of the injunction sought;
4. absence of prejudice suffered which could justify an award of damages.
• Contestation of all or part of the elements to be proved by the claimant:
1. the information relied upon does not qualify as a trade secret in the legal sense of the term (see 1.4 Elements of Trade Secret Protection – ie, it is not secret, it has no commercial value and/or it has not been subject to reasonable steps to keep it secret);
2. the defendant simply did not misappropriate the information;
3. if the information was indeed used, obtained and/or disclosed, it was lawfully, as the defendant:
1. discovered or created it independently;
2. discovered it by lawful reverse engineering;
3. received the secret from a third party in circumstances where they had no reason to believe that the secret had been obtained unlawfully.

Belgian law does not recognise the concept of “dispositive motion” as such. The law provides for several possible exceptions and grounds to challenge the validity and/or the ground of an action and/or the competence of a court to hear it. All these exceptions and/or grounds will have to be discussed between the parties and will have to be ruled over by the judge, often together with the merits of the case.

The costs that may be incurred by the claimant in trade secrets proceedings vary depending on the circumstances of the case – in other words, the type of proceedings (unilateral preliminary measure, summary proceedings, on the merits), the complexity and technicality of the facts invoked, the defences put forward by the defendant, etc.

As a rule, the costs that the claimant will have to bear in the course of proceedings (independently of the time and consequential costs spent by/on their employees working on the case) cover the costs of their lawyer, the costs of any experts and the judicial costs (costs of summoning the defendant to appear, costs of listing the claim, etc). In addition, if the claimant’s claims are dismissed, in whole or in part, they will have to bear all or part of the procedural indemnity (which corresponds to a lump sum intended to cover part of the winning party’s lawyer costs).

In general terms, the costs of the different possible procedures can be estimated as follows.

• Ex parte proceedings (eg, to collect and preserve evidence): between EUR5,000 and EUR8,000, or even more, not including the costs of experts and bailiff who will be involved to ensure the effective execution of the measures in question. These costs also do not take into account any third-party opposition or appeal against the ex parte order.
• Inter partes proceedings: between EUR7,000 and EUR15,000, or even more, depending on the complexity of the case, the defendant’s defences, etc, for the first instance only and excluding any expert fees.

As to the payment of lawyers’ fees, full contingency is prohibited, as it is contrary to their ethical rules, whereas partial contingency is permitted. Third-party funding is a known (and legal) concept, but so far it is rather limited in scope or reach.

The majority of actions are tried by one or more judges, without a jury. Only crimes are brought before the Cour d’assise, whose judges are assisted by a popular jury. 

Trade secrets proceedings follow the classic pattern of any civil procedure, which can be summarised as follows.

• The law provides for different ways to bring a case before a court and, in doing so, to initiate proceedings. The most common is the summons drawn up by the claimant and served on the defendant by a bailiff. The summons must contain the subject matter of the claims and a summary of the grounds supporting them, as well as an indication of the court that will hear the case and the date and place of the introductory hearing.
• Theintroductory hearing is the first hearing at which the judge decides how the proceedings will be conducted. As with any hearing, this is, in principle, public. During this hearing, the parties (or the judge if the parties do not agree) set a timetable specifying the deadlines within which each party must file their submissions and exhibits and, sometimes, the day of the pleadings.
• During the written phase, the claimant generally files two sets of submissions and the defendant (who must always have the last word) files three sets. During this phase, the parties may call in experts (unilaterally or contradictorily).
• The judge hears the parties and any witnesses or experts during the pleading hearing. In principle, this hearing is public. The course of the hearing depends largely on the judge, who is free to ask questions. The length of this hearing is fixed considering the number of pages of the last submissions filed by each party.

• At the end of the pleading hearing, the judge closes the proceedings and takes the case “in deliberations”. The decision is in principle taken one month later.
• When their deliberations are over, the judge gives their decision. They must explain the grounds for their decision and respond to the arguments developed by the parties. The decision must be made public.

In case of trade secrets proceedings, the judge may (ex officio or at a party’s reasoned request) order specific measures to preserve the confidentiality of the (alleged) trade secrets to be disclosed/used during the proceedings. Such measures may have an impact at different stages of the proceedings. The judge may, for example, order that hearings be held in camera (as opposed to in public) and may also provide that a non-confidential version of the judgment be made public (whereas a confidential version would only be made available to the parties). 

In terms of timing, it is difficult to determine in advance the duration of a proceeding. It will depend not only on the type of proceedings envisaged and the complexity of the case, but also potentially on the court in charge (some courts have a heavier docket than others). However, as a general rule, in the first instance, the following estimates of the length of proceedings can be made:

• summary proceedings (characterised by the urgency of the case) – approximately six months;
• cease-and-desist proceedings – between six months and one year;
• ordinary proceedings on the merits – between 18 months and two years.

The law only regulates contradictory expertise ordered by a judge in the context of contradictory proceedings (Article 962 JC). In this case, the law expressly provides that the expert’s intervention must be strictly technical (ie, the judge cannot delegate their decision-making power).

As for the possibility for a party to unilaterally resort to an expert to support all or part of their claims, in the silence of the law, the principle according to which proof can be provided by all means applies (see 5.5 Initial Pleading Standards). The expert’s opinion is not subject to any particular substantive or formal requirements, except where the expert opinion is produced in the form of an affidavit (see Article 961/1 JC).

In all cases, the expert’s opinion (whether contradictory or unilateral) is not binding on the court.

The trade secrets holder may apply for a preliminary injunction, possibly accompanied by a penalty payment, aimed at temporarily stopping the use and/or disclosure of a trade secret and thus preserving their interests pending a final decision. Whichever procedural route is chosen, they must demonstrate:

• the prima facie existence of the trade secrets claimed;
• the trade secrets misappropriation, at least prima facie;
• the proportionality of the injunction sought under the circumstances of the case (Article 1369quater JC).

If they act in summary proceedings, the trade secrets holder must also establish the urgency of the case, while if they want to act unilaterally, they must establish the absolute necessity justifying a departure from the adversarial principle.

The judge may make the granting of a preliminary injunction conditional on the provision by the claimant of an appropriate guarantee to ensure possible compensation for the damage suffered by the defendant (Article 1369sexies, §2, JC).

Unless the judge has expressly limited its duration in time, the preliminary injunction lasts until the adoption of a final decision. The defendant may, however, request the revocation of such an injunction before that date if:

• no proceedings on the merits have been initiated within a reasonable time;
• the information that justified the adoption of the injunction no longer meets the legal requirements to be qualified as a trade secret (Article 1369quinquies JC).

Finally, taking into account the balance of interests at stake, if the judge considers that they cannot order a preliminary injunction, they may make the continuation of the alleged misappropriation conditional upon the provision of a guarantee intended to ensure the compensation of the trade secrets holder, which will be discussed.

Compensation for damage suffered in the event of trade secrets misappropriation is based on the general rules of tort law and the underlying principle of “full compensation”. The compensation is thus intended to make good the actual damage suffered by the trade secrets holder, no more and no less. Punitive damages are therefore excluded.

To calculate the amount of damages to be awarded, the judge will in principle only consider the trade secrets holder’s prejudice, without considering the infringer’s behaviour and/or good or bad faith.

The judge must determine the extent of the damage and the corresponding compensation in concreto. If this is not possible (which will often be the case), the judge may however award a lump sum ex aequo et bono (Article XI.336/5, §2, CEL).

The law does not define specific rules to be applied in order to assess the prejudice suffered by the injured trade secrets holder and/or the amount of damages to be awarded in compensation. The courts will therefore always decide on a case-by-case basis, retaining one or the other method of evaluation in the light of the facts and evidence produced by the parties. In this respect, the judge may, for example, consider the following elements:

• reduction in sales or profits;
• loss of royalties that could have been received by entering into a licence;
• reduction (or even total loss) of the value of the secret;
• loss of market share;
• administrative and other costs (in particular for identifying and investigating the alleged misappropriation);
• damage to reputation;
• damage to image.

At the request of the injured trade secrets holder, the judge may, by way of damages, order the surrender to their benefit of the infringing goods, as well as, where appropriate, of the materials still in the possession of the defendant which were used primarily for the creation or manufacture of these goods (Article XI.336/5, §3, CEL).

Where it finds that a trade secret has been misappropriated, the court may, in addition to damages, order one or more of the following “permanent” measures, after assessing whether they are proportionate to the particular circumstances of the case (Article XI.336/3 CEL):

• cease-and-desist order;
• prohibition to produce, offer, place on the market or use infringing goods, or to import, export or stock infringing goods for these purposes;
• recall of infringing goods from the market;
• removal of the infringing character of the infringing goods;
• destruction of the infringing goods or their withdrawal from the market if this does not infringe the trade secrets protection;
• destruction or handing over to the trade secrets holder of all or part of any document or material that contains or incorporates the trade secrets.

The court may decide to impose fines together with the measures ordered and may also order the publication of its decision (Article XI.342/3 CEL).

In addition, the court may limit the duration of the injunctions and prohibitions ordered. However, this duration must be sufficient to eliminate any commercial or economic advantage that the infringer might have derived from the trade secrets misappropriation (Article XI.336/4 CEL).

The defendant may request the revocation of the ordered measures if the trade secrets that justified their adoption no longer fulfil the legal conditions to be qualified as such. 

The winning party can obtain from the losing party the reimbursement of a “procedural indemnity”, which corresponds to a lump sum intervention in the costs and fees of the winning party’s lawyer (Article 1022 JC). The amount of the procedural indemnity that can be awarded may vary according to the circumstances of the case, but must in any event be within the limits of the minimum and maximum amounts set by the Royal Decree of 26 October 2007. In the majority of cases, the winning party will therefore not be able to obtain reimbursement of all of their legal costs.

If each party is partially successful, the judge can distribute the procedural indemnity proportionally or offset it between the parties.

The winning party may obtain from the losing party reimbursement of all costs incurred in the proceedings, which include, in addition to the procedural indemnity (see 7.4 Attorneys' Fees), registration fees, postage costs, bailiff’s fees, expert’s fees, etc (Article 1018 JC). A party claiming reimbursement of the costs of an expert whom they have unilaterally appointed must establish that these costs were directly and closely related to the proceedings and necessary to defend their interests.

Both the claimant and the defendant can appeal against a final decision that affects their rights and/or interests. The most common means of appeal can be summarised as follows.

• A judgment rendered “by default” (ie, condemning a party who has neither filed submissions nor appeared at a hearing) may be the subject of an opposition before the court that rendered the considered judgment, within one month from the service of the opposed judgment.
• An order that affects the rights and/or interests of a third party (ie, who was not summoned and therefore could not defend themselves in the proceedings which gave rise to the judgment in question) may be the subject of a third-party opposition before the court which ordered it, within one month from the service of the order in question.
• A final first instance judgment (both in ex parte and inter partes proceedings) can be appealed to a higher court, within one month from the service of the contested decision. A preliminary injunction issued in inter partes proceedings on the merits can in principle only be appealed together with the final decision on the merits. Where the injunction is issued in inter partes summary proceedings, the appeal can be lodged immediately (ie, without having to wait for the decision on the merits).

Regardless of the appeal means envisaged, new evidence may in principle be produced at the appeal stage.

The course of an inter partes appeal procedure is identical to the course of a civil inter partes procedure at first instance, as will be the timing of opposition and third-party proceedings reintroduced before the same court of first instance (see 6.2 Trial Process). On the other hand, the appeal procedure before the Court of Appeal will often take longer than in the first instance.

In the context of the appeal mechanisms discussed in 8.1 Appellate Procedure, the judge hearing the case reviews the case as a whole (de novo) both in fact and in law, and issues a new decision.

A party who is not satisfied with a final decision (usually on appeal) may appeal to the Court of Cassation. The Court of Cassation does not rule on the merits of the case, but only on the legality of the decision. If the Court of Cassation considers that the challenged decision violates the law or ignores a rule of law, it may refer the case to another court to decide again on the merits of the case.

Unlike a civil action (which does not require specific intent on the part of the infringer), the criminal action provided for in Article 309 CrC is reserved for the “malicious or fraudulent” “communication of the secrets of the factory” in which the infringer was or still is employed (see 1.14 Criminal Liability).

The public prosecutor may decide to prosecute the infringer ex officio or to act on a complaint lodged by the trade secrets holder – in this case, however, the public prosecutor is free to decide whether or not to initiate an investigation and, subsequently, whether or not to refer the case to the criminal court.

When criminal proceedings are instituted for trade secrets misappropriation, the trade secrets holder may bring a civil action. In this case, they can be informed of the investigation and suggest investigative measures, as well as ask for damages.

The defences available to the alleged infringer are similar to those available in civil proceedings (see 5.9 Defending against Allegations of Misappropriation). However, they differ in some respects, such as: 

• the procedural means that could possibly be invoked to have all or part of the action brought against them declared inadmissible will obviously be specific to the criminal procedural rules applicable in this case;
• as for the contestation of the elements to be proved to establish misappropriation, it will relate to the specific elements of Article 309 CrC, namely the “malicious or fraudulent” (versus absence of intent) “communication” (versus acquisition and/or use) of “secrets of the factory” (versus trade secret).

If the misappropriation is established, the infringer may be punished by imprisonment of between three months and three years and a fine of between EUR50 and EUR2,000 (in addition to the damages that may be awarded to the injured trade secrets holder).

All alternative dispute resolution (ADR) mechanisms are available in trade secrets disputes.

• Amicable negotiation aims to find a solution satisfactory to the parties through dialogue and compromise. It can be implemented directly by the parties or through their lawyers.
• Conciliation involves the intervention of a neutral third party (whether specialised or not) whose role is to help the parties settle their dispute in a confidential setting. The conciliator has an active role: after hearing the parties’ positions, they give an opinion and propose settlement options that the parties are free to accept or not.
• Mediation involves the intervention of a neutral, independent and impartial third party whose role is to help the parties find and implement a fair and reasonable solution, which must come from them. The mediator does not act as a legal advisor, judge or arbitrator.
• Arbitration aims to have a dispute settled not by the courts, but by one or more third-party arbitrators (usually specialised in the area of the dispute), chosen and paid by the parties.
• Collaborative law is a voluntary and confidential process that brings together the parties and their lawyers (specifically trained in this process) until an agreement is reached.

The main advantages of these ADR mechanisms are:

• confidentiality (either ex officio or agreed between the parties);
• less cumbersome and less lengthy procedures;
• costs are lower and (in principle) known in advance;
• presence and voluntary involvement of the parties in the resolution of the dispute.