Germany: What Are The Implications Of The New Trade Secrets Act (Geschäftsgeheimnisgesetz) For Companies?

With the entry into force of the German Trade Secrets Act, measures will become necessary for companies to appropriately protect their trade secrets in the future as well.

Key Facts

  • In the future, companies will have to take further technical and legal secrecy measures to protect their trade secrets. In addition to technical and organisational precautions, regulations in contracts with employees, customers and business partners may be required.
  • The analysis and dismantling of products for the decoding of secrets (reverse engineering) has been deemed permissible in principle, but can be contractually excluded.
  • Whistleblowers are protected when disclosing trade secrets if the disclosure is made in order to protect the public interest to uncover an illegal act or other misconduct. Furthermore, a separate EU directive for the protection of whistleblowers is expected to be adopted in the spring of 2019, which will then have to be implemented in national law.

We have summarized below in more detail the most important information:

  1. Implementation of Directive (EU) 2016/943

On 21 March 2019, the Bundestag passed the Trade Secrets Act (GeschGehG). After months of discussion and 9 months of delay, the Directive (EU) 2016/943 of the European Parliament and the Council of 8 June 2016 will be implemented into German national law. The law will come into force in the coming days following its promulgation by the Federal President. It does not contain a transitional period.

The GeschGehG aims at a stronger protection of trade secrets against unlawful obtaining as well as unlawful use and disclosure. Until now, trade secrets have only been protected fragmentally under German law, in particular under the criminal provisions of sections 17 to 19 UWG and under general rules of German civil law.

  1. Legal Changes

According to the legal definition in section 2 no. 1 of the GeschGehG, an information is only a trade secret if (i) it is confidential (not generally known or publicly accessible) and therefore of economic value to the company, (ii) there is an interest in the information being kept confidential and (iii) appropriate secrecy measures have been taken. Particularly new is the requirement to prove that appropriate secrecy measures have been taken by the company, in order to justify the legal protection. The appropriateness of the measures taken depends on the (economic) significance of the information for the company and the circumstances of the individual case.

Reverse engineering (i.e. analysis and dismantling of products for the decoding of secrets) is now generally permissible according to the new regulation in section 3 para. 1 no. 2 GeschGehG - but still only within the restrictions of the UWG and the intellectual property laws.

For the first time, explicit regulations for the protection of whistleblowers have been established. The disclosure of trade secrets is justified if it is made with the intention of protecting the public interest to uncover illegal acts and other misconduct. The explanatory memorandum gives as examples of other misconduct the systematic and dishonest evasion of taxable events, as well as company's activities abroad which, although not illegal in the countries concerned, are nevertheless regarded as misconduct by the general public, such as child labour or production conditions that are harmful to health or environment.

Furthermore, it is expected that a separate EU Whistleblower Directive will be implemented in national law in the coming months.

  1. Consequences for Companies

For companies, the GeschGehG initially means increased protection of their trade secrets. At the same time, however, companies will also be required to take increased measures of confidentiality and will be obliged to provide documentation in order to obtain legal protection at all.

This means in practice to identify, evaluate and categorize trade secrets according to their importance, in order to take appropriate measures of secrecy. This can be done by means of labour law directives and regulations in the employment contracts and agreements with business partners and customers adapted to the GeschGehG as well as by means of non-disclosure agreements. Existing contracts and samples must be reviewed. Reverse engineering should also be contractually regulated and, if necessary, explicitly excluded in the contracts.

In addition, organizational measures, such as the marking of important documents as "secret", and technical protective measures should be implemented. Indications for a corresponding strategy can be found in the ISO/IEC 27001 standard on IT security procedures and information security management systems. Complete documentation of the accomplished measures is decisive for future judicial assertion. All persons who have knowledge of trade secrets should be documented, informed of the implemented measures and made aware of their obligation to maintain confidentiality. Where applicable, employees should be trained accordingly.

If a company does not take necessary measures to protect its key information, it is in danger of wholly or partially losing the legal protection of secrets in the future. Especially for companies that create value with ideas and innovation, such protection is of superior importance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Heuking Kuehn Lueer Wojtek PartGmbB
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Heuking Kuehn Lueer Wojtek PartGmbB
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions