Balancing Interests in Trade Secrets Protection under EU Law: A Human Rights and Freedoms Perspective

Abstract

This article examines the challenges in balancing employers’ and employees’ conflicting interests regarding trade secrets protection under EU Directive 2016/943. It analyses provisions of the Directive that may be relevant for such a balancing exercise and highlights the challenges associated with their application, particularly the problem of subjectivity. The study identifies key human rights and freedoms relevant in this context, including the right to privacy, freedom to conduct a business and freedom to choose an occupation. It explores EU Member States’ obligations to consider these rights when protecting trade secrets. The article proposes using a perspective on human rights and freedoms to facilitate the balancing exercise. To minimize subjectivity, it suggests the application of a structured balancing test for human rights conflicts as proposed by Smet. The article argues that this approach could support a judicious balance between employees’ and employers’ competing interests in cases of trade secrets protection.