Trade secret laws in Bosnia and Herzegovina

No.

In Bosnia and Herzegovina, there is no lex specialis regulating the matter regarding the trade secrets and its protection. This matter is subject of several pieces of legislation that regulate protection of trade secrets in both the public and private sectors and other areas. This input covers legislation relevant to the private (business) sector.

Note that Bosnia and Herzegovina consists of two entities that are separate administrative units – Federation of Bosnia and Herzegovina (“FBiH”) and Republika Srpska (“RS”), as well as the condominium Brcko District. For the purpose of this questionnaire, state level legislation and the legislation of the two larger entities is considered.

Since there is no single piece of legislation covering protection of trade secrets at either the state level or entity levels, the rules that apply depend on numerous factors, including whether the concerned entity operates as a private business or is in the public sector, its industry (e.g. banking, insurance, medicines etc.), whether any deals have been sealed in internal or external affairs, and other considerations, such as the type of arrangement (e.g. employment relationships, contractual etc.)

This input seeks to provide a high-level assessment of the generally applicable rules and practices in respect of protection of trade secrets under the caveat that each case and applicable rule must be looked at individually.

Under the laws regulating companies, trade secrets are defined as information that could cause significant damage, both material and reputational, to the holder if it comes into the possession of a third party without the consent of the trade secret holder.

For information to be considered a trade secret, in practice it should be regulated as such under the relevant law and by corporate acts, contractual obligations, appropriate standards and/or employment agreements in order to preserve its secrecy and prevent a disclosure.

In practice, yes. Appropriate measures should be put in place in accordance with the law, business policy, contractual obligations or appropriate standards in order to preserve secrecy. The measures are determined in accordance with an assessment of the risk of unlawfully obtaining, using and disclosing trade secret information.

Generally speaking, yes.

Although obtaining, using or disclosing trade secrets can be done by the party other than the holder, in the event of a dispute a person claiming to have obtained or disclosed trade secrets must prove that it has done so in accordance with the law, or in a way that is not contrary to good business practices.

There are no express rules that regulate co-holding over or co-ownership of trade secrets.

Acting contrary to the prescribed rules as to the protection of trade secrets (i.e. any unlawful acquisition, disclosure or use of a trade secret) may constitute infringement of a trade secret.

Yes, if there is a reasonable doubt that some evidence cannot be presented or that its presentation will subsequently be challenging, such evidence may be presented in course or prior to the litigation proceedings. The requirements regarding this measure are regulated under the general rules applicable to civil litigation procedures rules.

Since there are no regulations covering the specific protection of trade secrets, general rules apply. In accordance with the rules on civil litigation proceedings, it is possible to request a security interest measure to be issued by the competent court if there is a risk of damage to be caused to the holder (e.g. by unauthorised acquisition, disclosure or use of a trade secret by another person), provided other conditions are met.

The ultimate remedy for the holder of the trade secret is to bring an action in court against any person who breaches a trade secret.

Yes. The applicant must bring an action for a substantive decision on its merits within a defined period, but no later than 30 days from the date of the decision on the interim measure.

Compensation of damages or other financial compensation can be awarded by the court in the appropriate proceedings.

Apart from that, the parties can settle out of court or engage in mediation.

Yes, the court may decide on the security interest proposal before delivering it to the debtor, if the creditor makes it likely that security measure is grounded and urgent and that, otherwise, the purpose of the security measure would be lost.

Compensation for damages includes actual damages and lost profits. When deciding on the amount of damages, the court can take into account the proportion between the seriousness of the injury and the interests of third parties.

The calculation of the amount of compensation can be based on a report by an expert appointed by the court.

As stated above, there is no lex specialis regarding the regulation of trade secrets.

The general limitation period for claiming the receivables in RS is ten years and five years in FBiH, unless otherwise specified by the law. However, limitation periods for compensation of damages are three years from the day the plaintiff learned of the injury and the perpetrator, and no later than five years from the day the injury was committed. Furthermore, if an infringement of a trade secret has been performed by an employee who is simultaneously breaching obligations arising out of the employment relationship, assuming such a breach would constitute a severe breach of work obligations, in FBiH the employment contract can be terminated without notice in 60 days from the day of learning about the injury (i.e. serious breach of work obligations), but not later than one year from the day the injury was committed. In RS, the deadlines are three months and six months respectively.

Please see above question.

Under the general rules applicable to limitation periods, interruption and suspension of the limitation period can occur.

Interruption can occur in the instances specified in the applicable law, such as the plaintiff instituting legal proceedings or by any other motion against the potential defendant at court or other competent body, with the aim of confirming, guaranteeing or realising the claim.

Suspension can occur due to the plaintiff’s inability to institute legal proceedings demanding the fulfilment of obligation due to insurmountable obstacles.

Yes. According to the relevant regulations, the courts and other competent authorities can order appropriate measures to preserve the secrecy of undisclosed information in court proceedings through measures, such as exclusion from the general public, provided that the specific requirements are met.

Measures, procedures and remedies for trade secret protection will not apply to the information classified as trade secret for the purpose of concealing a criminal offence or other illegal acts, and to the information that cannot constitute a trade secret under the particular laws.

The information whose publishing is required in accordance with the law cannot be considered a trade secret and therefore, publishing this information is carved out if it is intended to protect the public interest or in the instances specified in the relevant law.

Upon the request of the defendant in the litigation or the proceedings for interim or security interest measures in relation to the infringement of the trade secret, the court may determine the appropriate monetary amount at the expense of the plaintiff, as a means of security in the event that the claim is not substantiated.

No. The request of the defendant is filed in the litigation or the proceedings for interim or security interest measures initiated by the plaintiff in relation to the infringement of the trade secret.

Whistleblowers are protected in accordance with the Law on Protection of Whistleblowers ("Official Gazette of the Repulika Srpska", No. 62/2017), which requires that the personal data of whistleblowers are protected, that the employers cannot take any actions against employed whistleblowers (e.g. termination of employment, disciplinary measures, lowering salaries, etc.) and that whistleblowers can seek protection from the court, etc.

At the state level, state law prescribes the protection of whistleblowers in institutions of Bosnia and Herzegovina, while in the Federation of Bosnia and Herzegovina, this regulation is currently in draft form.

In accordance with the FBiH’s relevant legislation, the employee, who in his/her work in or in connection with his/her work, intentionally or due to gross negligence causes damage to a third party, which was compensated by the employer, is obligated to reimburse the employer for the amount of compensation paid.

In RS, the employee is liable to the employer for the violation of work obligations, and if the violation of these work obligations caused material damage to the employer or third parties, or a criminal offence or misdemeanour was committed, the employee is held materially liable under criminal and misdemeanour rules. Additionally, for the damage caused by the employee in his/her work in or in connection with his/her work to a third party, the employee and employer can be jointly and severally liable.