Protecting Trade Secrets In Germany

by Orrick - Trade Secrets Group

As Europe’s largest economy, one might expect Germany to provide robust protection of intellectual property assets such as trade secrets.  It’s true that Germany has a comprehensive set of laws protecting trade secrets.  But there is no dedicated trade secrets statute, and gaps in protection remain.

Under German law, “trade secrets” and “business secrets” are protected by several laws.  According to the definition of the Federal Constitutional Court of Germany (order dated March 14th, 2006 — file: 1 BvR 2087/03), facts, circumstances, and/or processes qualify as trade or business secrets if:

  • they are related to a particular business enterprise;
  • they are known only to a limited group of people (and are therefore public);
  • they are kept secret for the purposes of economic interest; and
  • the business enterprise has an apparent and legitimate interest in keeping the information secret.

Manufacturing, research and development, sales figures, customer lists, business strategies, and other commercial know-how may therefore qualify as trade and business secrets under German law.

While there is no “Trade Secret Act” in Germany, trade and business secrets are protected under scattered provisions in different laws and regulations.  Most provisions concern criminal law, but damages claims may also be based on these provisions.  Here are the most important provisions on protection of trade secrets under German statutes as interpreted by German courts:

  • Section 17 of the Act Against Unfair Competition protects business and trade secrets against unauthorized copying by employees and also against unauthorized use by anyone for the purposes of competition, for personal gain, for the benefit of a third party, or with the intent of causing damage to the owner of the business.  Violations of Section 17 carry such punishments as imprisonment not exceeding three years, or a fine.  This provision can have harsh consequences, but its requirements are quite specific.  In practice, it often cannot be shown that the person using the trade or business secret had the necessary intent or purpose.
  • Employees are obliged to keep the employer’s trade and business secrets confidential.  This obligation arises from the general good-faith performance clause in Section 242 of the German Civil Code.
  • Section 203 German Criminal Code provides that whoever unlawfully discloses another’s business or trade secret, which was confided to or otherwise made known to him in his capacity as a professional (such as a physician, dentist, psychologist, attorney or patent attorney), shall be subject to imprisonment not exceeding one year, or a fine.
  • According to Section 30 (1) of the German Fiscal Code, public officials are obliged to observe tax secrecy.  Under Section 30 (2), officials are in breach of tax secrecy if they disclose or make use of, without authorization, a trade or business secret which has become known to them in the course of their official duties, such as in administrative or auditing proceedings or in a judicial tax matter.  Section 355 of the German Criminal Code states that a public official unlawfully disclosing or using such trade or business secrets shall be subject to imprisonment not exceeding two years or a fine.
  • The federal Freedom of Information Act grants broad public access to official materials held by the German federal government.  But like the U.S. FOIA, the act exempts certain classes of information from disclosure.  One of those is business and trade secrets held by the government; these are only publicly accessible with the consent of the owner of the secret (Section 6 of the Freedom of Information Act).
  • Parties negotiating over potential cooperation often share confidential information that might contain trade secrets.  Under Sections 311 and 241 (2) of the German Civil Code the parties are, as soon as they start negotiations, obliged to preserve the other party’s rights and legal interests. This means each party is prohibited from making any use of the other party’s trade and business secrets; any party disclosing such trade or business secrets of the other party shall be liable for damages.  To avoid disputes about whether or not information shared qualifies as a trade or business secret, executing a non-disclosure agreement before negotiations commence is recommended.

The territorial scope of application of these listed provisions varies from law to law. As a rule of thumb, the criminal law provisions apply if the offender acted in Germany or if the business whose trade and business secrets were violated is physically located in Germany.  German tort law applies if the damage occurs in Germany.

German law provides solid protection for the trade secrets of companies doing business there.  But since gaps remain, it’s advisable use contracts to ensure that trade secrets are protected.  As a result, it’s not uncommon for companies to include rules governing the protection of trade and business secrets in agreements with customers, suppliers, and other business partners.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Trade Secrets Group | Attorney Advertising

Written by:

Orrick - Trade Secrets Group

Orrick - Trade Secrets Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.