Article 5 of the directive addresses aspects of informant protection. In this regard, it should be established when action cannot be taken via legal remedies against the supposed acquisition, the supposed use or disclosure of trade secrets, etc. According to article 5b, this should be the case if the disclosure, etc., of the trade secret has occurred for the purpose of exposing irregular behaviour, a criminal act or an illegal activity under the condition that the defendant has acted to protect the general public interest. Thus, it should then also not be possible to take action against the supposed acquisition, the supposed use or disclosure of trade secrets via legal remedies, etc., if this has occurred in exercise of the right of freedom of expression and freedom of information in accordance with the Charter of Fundamental Rights. The same applies if protection of a legitimate interest recognised by national or EU law is involved. In addition, it should be possible for employees to disclose a trade secret to their representatives as part of the legitimate exercise of their representation functions in accordance with national law or EU law. Substantive improvements could also be made in article 5 of the proposal for a directive.

For instance, the Commission’s original call for the disclosure, etc., of trade secrets to be allowed to meet a non-contractual obligation has not been retained. By contrast, the dubious fundamental orientation of article 5 of the proposal for a directive remains in place. The compromise reached still has to be confirmed by the European Parliament voting in plenary, the Council and the Commission. Nevertheless, major changes can no longer be expected. BDA and BDI will also continue to follow implementation of the directive in the Member States actively.

The directive has to be implemented by Member States two years after publication in the Official Journal and entry into force.