Trade secret laws and regulations in Romania

Yes – Directive (EU) 2016/943 was transposed into Romanian law by the Government Emergency Ordinance no. 25/2019 on the protection of undisclosed know-how and trade secret business information against unlawful acquisition, use and disclosure (hereinafter referred to as ‘GEO no. 25/2019’).

The legal framework regulating trade secrets also include:

• Law no. 11/1991 on combating unfair competition, whereby the definition of trade secrets is provided;
• The Romanian Criminal Code, whereby the disclosure of trade secrets or other non-public information is regulated as a criminal offence.

The Romanian Civil Code, whereby rules on the exemption of civil liability for the disclosure of trade secrets are stipulated.

According to Article 1^1 let. d) of Law no. 11/1991, trade secrets are defined as information that cumulatively meets the following requirements:

1. are secret, in the sense that they are not, as a whole or as their elements are presented or articulated, generally known or easily accessible to persons who normally deal with the type of information in question;
2. have commercial value by the fact that they are secret;
3. given the circumstances, have been the subject of reasonable measures to be kept secret, taken by the owner of that information;

The third element in the definition of trade secrets calls for an active involvement of the trade secrets owners to take reasonable measures in order to keep the information secret. In other words, trade secret owners must prove that they took steps to identify/protect the information as secret (otherwise, such information may lose its status as a trade secret).

The legislation does not go into further details on how this should be effectively implemented. In practice, however, trade secrets can be kept safe by using a combination of various barriers, including marking documents as “Confidential”, using data encryption software tools, concluding confidentiality agreements, implementing a trade secrets policy, etc.

We note that it is common for companies to conclude confidentiality agreements with their employees and with their commercial partners, which are allowed access to trade secrets. This comes as an additional step to enhance the protection of trade secrets and to prevent unauthorised disclosure of confidential information.

Trade secrets (as other forms of intellectual property) can be transferred or licensed.

GEO no. 25/2019 does not provide for specific details in this regard that would derogate from the provisions of Directive (EU) 2016/943.

It is possible for two parties to be joint owners of a trade secret. Joint ownership typically occurs when two parties work together to develop trade secret information.

Article 4 of GEO no. 25/2019 provides that:

1. The acquisition of a trade secret without the consent of the trade secret holder will be considered unlawful, whenever carried out by:
   1. unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
   2. any other conduct which, under the circumstances, is considered contrary to honest commercial practices.
2. The use or disclosure of a trade secret will be considered unlawful whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
   1. having acquired the trade secret unlawfully;
   2. being in breach of a confidentiality agreement or any other duty not to disclose the trade secret;
   3. being in breach of a contractual or any other duty to limit the use of the trade secret.
3. The acquisition, use or disclosure of a trade secret will also be considered unlawful whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of paragraph 3. 
4. The production, offering or placing on the market of infringing goods, or the importation, export or storage of infringing goods for those purposes, will also be considered an unlawful use of a trade secret where the person carrying out such activities knew, or ought, under the circumstances, to have known that the trade secret was used unlawfully within the meaning of paragraph 3.

Article 5 of Law no. 11/1991 provides that:

It constitutes infringement and is punishable by imprisonment from three months to two years or a fine:

1. the disclosure, acquisition or use of trade secrets by third parties, as a result of a commercial or industrial espionage action, if this affects the interests or activity of a legal person;
2. the disclosure or use of trade secrets by persons empowered by the legitimate holders of such secrets to represent them before public authorities or public institutions, if this affects the interests or activity of a legal person;
3. the use by a person of those provided in Article 175 para. (1) of the Criminal Code of trade secrets of which he became aware in the exercise of his duties, if this affects the interests or activity of a legal entity.

Yes, the Civil Procedure Code provides that:

Article 359 para. (1): “Any person interested in urgently ascertaining the testimony of a person, the opinion of an expert, the state of a property, movable or immovable or obtaining recognition of a document, fact or right, if there is danger that the evidence will disappear or be difficult to submit in the future, will be able to request, both before and during trial, the submission of such evidence.”

Article 364 para. (1): “At the request of any person interested in urgently ascertaining a specific state of affairs, which may cease or change until the submission of evidence, the bailiff in whose jurisdiction the finding is to be made will be able to ascertain this state of affairs on site.”

and

Article 365: “In case of danger of delay, the submission of evidence and the ascertainment of a state of affairs will be possible also on non-working days and even outside legal hours, but only with the express consent of the court.”

Article 10 of GEO no. 25/2019 provides that:

1. At the request of the trade secret holder, the competent court may order any of the following provisional and precautionary measures against the alleged author of an infringement:
   1. the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret on a provisional basis;
   2. the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes;
   3. the seizure or delivery up of the suspected infringing goods, including imported goods, so as to prevent their entry into, or circulation on, the market.
2. As an alternative to the measures referred to in paragraph 1, the court can make the continuation of the alleged unlawful use of a trade secret subject to the lodging of guarantees intended to ensure the compensation of the trade secret holder. 
3. Disclosure of a trade secret in return for the lodging of guarantees is not allowed.

Article 12 of GEO no. 25/2019 provides that:

1. Where a judicial decision taken on the merits of the case finds that there has been unlawful acquisition, use or disclosure of a trade secret, the court may, at the request of the applicant, order one or more of the following measures against the defendant, author of the infringement:
   1. the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret;
   2. the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes;
   3. the adoption of the appropriate corrective measures with regard to the infringing goods.
2. In the case provided by para. (1) point c), the court will order that implementation is carried at the expense of the infringer, unless there is good reason not to.
3. The measures provided in par. (1) point a) and b) are without prejudice to the right to damages that may be due to the holder of the trade secret as a result of the illegal acquisition, use or disclosure of the trade secret.

Article 14 para. (1) of GEO no. 25/2019:

1. Upon the request of the injured party, the court can order an infringer who knew or ought to have known that he, she or it was engaging in unlawful acquisition, use or disclosure of a trade secret, to pay the trade secret holder damages appropriate to the actual prejudice suffered as a result of the unlawful acquisition, use or disclosure of the trade secret.

Article 15 para. (1) of GEO no. 25/2019:

The court can order, at the request of the applicant and at the expense of the infringer, publishing in full or in part of the judicial decision.

30 days. [art. 11 para. (3) point a) GEO no. 25/2019]

Yes.

Article 12 further provides that:

1. At the request of the defendant, author of the infringement, as an alternative to the measures provided for in Article 12, the court may order pecuniary compensation to be paid to the injured party instead of applying those measures if all the following conditions are cumulatively met:
   1. the person concerned at the time of use or disclosure neither knew nor ought, under the circumstances, to have known that the trade secret was obtained from another person who was using or disclosing the trade secret unlawfully;
   2. execution of the measures in question would cause that person disproportionate harm; and
   3. pecuniary compensation to the injured party appears reasonably satisfactory.

The pecuniary compensation provided under para. (4) as an alternative to Article 12 para. (1) point a) and b) will not exceed the amount of royalties or fees, which would have been due had that person requested authorisation to use the trade secret in question, for the period of time for which use of the trade secret could have been prohibited.

No.

According to Article 14 of GEO no. 25/2019:

1. When setting the damages referred to in paragraph 1 (see above), the court will take into account the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret.
2. Alternatively, in appropriate cases, the court may set the damages as a lump sum on the basis of elements such as, at a minimum, the amount of royalties or fees which would have been due had the infringer requested authorisation to use the trade secret in question.

According to Article 8 of GEO no. 25/2019: 

1. The right to take action for the protection of trade secrets against illegal acquisition, use and disclosure will lapse within six years.
2. The limitation period will run from the date on which the applicant knew or should have known of the unlawful acquisition, use or disclosure of the trade secret by the infringer.
3. The suspension and interruption of the limitation period are subject to the provisions contained in Article 2532 – 2543 of the Civil Code.

According to Article 2532 of the Civil Code:

1. The limitation period does not run and, if it began, it is suspended:
   1. between spouses, during their marriage, and if they are not separated as matter of fact; 
   2. between parents, guardian or administrator and those lacking legal capacity to exercise rights or with limited legal capacity or between administrators and those they represent, as long as protection lasts and the accounts have not been provided and approved; 
   3. between any person which, by law, or on the basis of a judgment or a legal act, administers the property of others and those whose property is thus managed, as long as the management has not ceased and the accounts have not been provided and approved; 
   4. if someone lacks legal capacity to exercise rights or has limited legal capacity, as long as he has no representative or legal guardian, unless otherwise provided by law; 
   5. if the debtor deliberately conceals that the debt exists or is legally enforceable;
   6. throughout the negotiations to settle disputes amicably, but only if the parties negotiated in the last six months before the expiration of the limitation period; 
   7. if the person entitled to action must or can, under the law or contract, use a certain preliminary procedure, such as an administrative complaint, seeking reconciliation or the like, while not aware or entitled to know the result of that procedure, but no more than three months from the commencement of the proceedings, unless otherwise provided by law or contract; 
   8. if the holder of the right or the one that violated it is part of the Romanian armed forces, as long as they are in a state of mobilisation or war. Civilians who are in the armed forces for operational reasons imposed by the necessities of war are also included;
   9. if the one against which the limitation period runs or is about to run is prevented by an act of force majeure from interrupting the period, as long as this impediment still exists; temporary force majeure is not a cause of suspension of the limitation period unless it occurred in the last six months before the expiration of the limitation period; 
   10. in other cases provided by law.

According to Article 2537 of the Civil Code:

1. The limitation period is interrupted by:
   1. the acknowledgment of the right whose action is time-barred, by the one for the benefit of which the prescription runs or through a voluntary act of performance; 
   2. the lodging of a claim form or arbitration application (even if the application has been filed with a court or an incompetent arbitral body), by registering as a bankruptcy creditor in insolvency proceedings, by filing an application to intervene in the recovery pursuit started by other creditors or by raising the exception of the right to action, which is time-barred; 
   3. the commencement of civil legal proceedings by a party during the prosecution or before the court before the beginning of the judicial investigation; where compensation is granted, by law, ex officio, the prosecution interrupts the running of prescription, even if no civil proceedings have been commenced; 
   4. any act whereby the one for the benefit of which the prescription runs is notified; 
   5. as provided by law.

GEO no. 25/2019 provides specific measures to be adopted for preserving the confidentiality of trade secrets during legal procedures, as follows:

• if during the trial, the presence of the public may affect or compromise trade secrets, the court may order that the process will be carried out without public, ex officio or upon the parties’ request;
• restricting in whole or in part, to a limited number of persons, the access to any document containing trade secrets and which has been submitted by the parties or third parties within the trial;
• restricting to a limited number of persons the access to court hearings, when trade secrets or alleged trade secrets may be disclosed, as well as to the records or transcripts related to the respective court hearings;
• providing people (other than those whose access to trade secrets was allowed by the court) with a non-confidential version of any court decision whose texts containing trade secrets have been eliminated or hidden;
• any other measures provided by law to ensure the confidentiality of trade secrets or alleged trade secrets;

We note that a special protection of the trade secrets is provided in the public procurement field where the access to confidential documents in the administrative-jurisdictional proceedings before the National Dispute Resolution Council may be restricted, on the grounds that the trade secrets’ disclosure would prejudice the legitimate interests of the economic operators.

Pursuant to GEO no. 25/2019, requests for measures, procedures and remedies provided for the trade secrets protection are dismissed if the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases:

• for exercising the right to freedom of expression and information as set out in the Charter, including respect for the freedom and pluralism of the media;
• for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest;
• disclosure by employees to their representatives, as part of the legitimate exercise by those representatives of their functions in accordance with Union or the national law, provided that such disclosure was necessary for that exercise; for the purpose of protecting a legitimate interest recognised by EU or national law.

There are no special measures, and consequently no related procedures, for the proceedings regarding trade secrets which were unfounded, or initiated abusively or in bad faith.

Nevertheless, where it is found that there has been no unlawful acquisition, use or disclosure of the trade secret or threat of such conduct, upon the request, the party or the third party who suffered damages following the provisional and precautionary measures may receive appropriate compensation.

Considering the lack of specific regulated measures for the matter in question, the general remedies provided under the Romanian law will apply. For example, considering the particularities of the civil or criminal procedure, the injured person may appeal the court decision, challenge the procedures carried out by the judicial bodies, request the exclusion of evidence etc.

The only normative act in this field is the Law no. 571/2004 on the protection of personnel within public authorities, public institutions and other units referred to as “the Romanian Whistleblowers’ Law”. This law covers only personnel in the public sector, while the employees within the private sector are not protected against illicit or abusive retaliations due to whistleblowing.

Although the Romanian legislation does not include specific regulation for the private sector in this field, the strict provisions provided under the Romanian Labour Code are indirectly discouraging the potential abusive measures taken by the employer as a result of whistleblowing. In this respect, we briefly mention that actions such as dismissal, decrease of the salary, demotion may be decided under certain provided cases and only after conducting a preliminary disciplinary investigation. Also, any action or measure carried out by the employer towards its employees must follow the anti-discrimination and anti-harassment rules.

In addition, within the criminal litigation, the legislation provides protection for the witnesses when there is a reasonable suspicion that the life, physical integrity, freedom, assets or professional activity of the witness could be jeopardised as a result of his or her statements.

Pursuant to the relevant provisions in the Romanian Civil Code regarding tort liability we note that, as a rule the one who causes harm to another through an illicit act, committed with guilt, is personally obliged to repair it.

However, employer liability towards the employee’s acts is one of the exceptions to this rule. In such a case, the employer will be liable for the employee’s infringement whenever the employee’s action is related to the attributions or the purpose of the functions entrusted under the employment agreement.

The employer may also be liable for third party’ actions under the liability of the principal for the agents regulated under the Romanian Civil Code. In such a case, the principal is obliged to repair the damage caused by his agents every time when the agents’ action is related to the attributions or the purpose of the functions entrusted. The principal is the one who, under a contract or according to the law, is responsible with the direction, the supervision or the control over those complying with certain functions or assignments in his interest or of another.

As for criminal liability, individuals are held liable only for their own acts (either as an author of the crime, or as an instigator or accessory to the crime).