Trade secret laws and regulations in Slovenia

Explore reliable legal information about trade secrets in Slovenia

  1. General
    1. 1. Has the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (“Trade Secrets Directive”) been implemented?
    2. 2. Are there any other applicable sources of law related to trade secrets?
    3. 3. How are trade secrets defined? 
    4. 4. Do specific measures or protections need to be put in place for information to benefit from protection as a trade secret?
  2. Dealings in and ownership of Trade Secrets
    1. 1. Are trade secrets transferable and/or licensable?
    2. 2. Are there specific consequences arising from transfer or licensing of trade secrets by a party other than the trade secrets owner?
    3. 3. Is co-ownership of trade secrets permitted?
  3. Enforcement of Trade Secrets
    1. 1. What actions constitute infringement of trade secrets?
    2. 2. Are there any measures allowing the trade secrets' owner to gather and/or preserve evidence of infringement of trade secrets?
    3. 3. What specific interim and final measures and remedies are available in the event of infringement of trade secrets?
    4. 4. Is there a specific period after obtaining interim measures by which the applicant must bring proceedings for a substantive decision on the merits of the claim?
    5. 5. Are there circumstances in which damages or other financial compensation may be available in place of an injunction and other measures?
    6. 6. Are any interim or final measures and remedies available through ex parte hearings?
    7. 7. How is financial compensation to the trade secrets holder calculated?
    8. 8. What is the limitation period for claims relating to misappropriation of trade secrets?
    9. 9. When does the limitation period begin to run?
    10. 10. Are there any circumstances that interrupt or suspend the limitation period?
    11. 11. Are mechanisms available to preserve confidentiality of trade secrets in the course of legal proceedings?
    12. 12. Are there any particular legitimate interests which may be invoked as an exception to the measures, procedures and remedies for trade secrets protection?
    13. 13. Are any measures available where proceedings concerning trade secrets are manifestly unfounded and / or found to have been initiated abusively or in bad faith?
    14. 14. Are separate legal proceedings required for such measures?
  4. Employee / employer liability
    1. 1. In addition to any statutory protection of trade secrets, what protections can employers put in place to avoid misuse of trade secrets by its workforce? 
    2. 2. Are there implied rights of protection for employers regarding misuse of trade secrets by its workforce?  
    3. 3. What other means can employers use to protect misuse of trade secrets by the workforce, particularly when staff leave? 
    4. 4. Are there any protections for “whistleblowers” or similar rights for employees in relation to infringement of trade secrets?  
    5. 5. Can an employer be liable for their employee’s infringement of a third party’s trade secrets?  
  5. Commercial contracts aspects
    1. 1. What kind of protection/provisions are to be included in supply or similar contracts with respect to trade secrets?
    2. 2. What are typical pitfalls in contracts regarding protecting trade secrets?
    3. 3. Are there any important aspects regarding protecting trade secrets cross border?
    4. 4. Are there any penalty clauses in contracts with regards to trade secrets?

General

1. Has the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (“Trade Secrets Directive”) been implemented?

Yes. Transposition was realised through the adoption of the Trade Secrets Act (Official gazette no.: 22/2019)

Yes. 

The Criminal Code (Official Gazette of RS no. 50/12, 54/15, 38/16, 27/17 and 23/20) regulates the disclosure and unlawful acquisition of trade secrets.

Furthermore, other laws (e.g. governing the conditions and procedure for marketing of medicines, medical devices, plant protection products in agriculture and forestry, biocidal products, etc.) may also have provisions related to trade secrets. 

The Classified Information Act (Official Gazette of the RS, No. 50/06, 9/10, 60/11 and 8/20) regulates classified information of interest for Slovenia's national and public security, defence, internal and external affairs, and for the protection of foreign classified information, etc.

3. How are trade secrets defined? 

Trade secrets are defined in accordance with Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016, as information that meets all of the following requirements:

  1. it is secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
  2. it has commercial value;
  3. reasonable steps have been taken under the circumstances, by the person lawfully in control of the information, to keep it secret.

4. Do specific measures or protections need to be put in place for information to benefit from protection as a trade secret?

Yes, the requirement referred to under (c) above is presumed to have been complied with if the holder of the trade secret has designated the information as a trade secret in writing and has made it known to all persons who come into contact with or become acquainted with the information, in particular shareholders, employees, members of the company's organs and other persons.

Dealings in and ownership of Trade Secrets

1. Are trade secrets transferable and/or licensable?

Although not explicitly regulated, the law includes the provision of the Directive, which stipulates that the acquisition of a trade secret is considered lawful when the trade secret is obtained by practice, which, under the circumstances, is in conformity with honest commercial practices. Therefore, it can be assumed that the contractual transfer of a trade secret is possible.  

2. Are there specific consequences arising from transfer or licensing of trade secrets by a party other than the trade secrets owner?

Yes, such a transfer can be considered an illegal action that in return is punishable by the Trade Secret Act (the return of the damages can be claimed through civil procedure) and the Criminal Code (the sanctions include imprisonment up to five years).

3. Is co-ownership of trade secrets permitted?

In theory, such co-ownership could be possible if, as mentioned above, it is generated through practice, which, under the circumstances, is in conformity with honest commercial practices.

Enforcement of Trade Secrets

1. What actions constitute infringement of trade secrets?

The law distinguishes between unlawful acquisition and use or disclosure of trade secrets as such. 
The acquisition of a trade secret without the consent of the trade-secret holder is 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.

The use or disclosure of a trade secret is 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.

The production, offering or placing on the market of infringing goods, or the importation, export or storage of infringing goods for those purposes, is also 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.

2. Are there any measures allowing the trade secrets' owner to gather and/or preserve evidence of infringement of trade secrets?

In proceedings relating to the infringement of trade secrets, the provisions of the Law on Civil Procedure shall apply. This means, if there are reasonable grounds for fearing that a piece of evidence cannot be given at a later date, or that it will be more difficult to give at a later date, a motion may be made during or before the trial to have it given. In the application for the preservation of evidence, the applicant must specify the facts to be proved, the evidence to be secured and the reasons why he or she considers that the evidence cannot be secured at a later date or that it will be more difficult to secure it.

3. What specific interim and final measures and remedies are available in the event of infringement of trade secrets?

Similar to the protection of intellectual property rights, the owner or holder of a trade secret has the right to request that the court:

  • prohibit the infringement of business secrets and any future infringements; 
  • prohibit the production, offering, placing on the market or use of goods, which are the subject of the infringement, and order the recall and destruction of such goods;
  • recall the infringing goods from the market;
  • order that the infringing goods be deprived of their infringing quality;
  • order that any document, object, material, content or electronic file that is a business secret or contains a business secret be destroyed; and 
  • order the publication of the judgment.

However, the Slovenian courts can grant an interim injunction to secure a non-monetary claim under Trade Secrets Act if the applicant shows that:

  • a trade secret exists;
  • the applicant is the holder of a trade secret referred to under the Trade Secrets Act; and
  • the holder's right has been infringed or is in real danger of being infringed.

The holder of the trade secret must also establish as plausible one of the following presumptions:

  • a risk that the enforcement of the claims will be prevented or substantially impeded;
  • that an injunction is necessary to prevent damage that is difficult to repair; or
  • that the alleged infringer would not suffer more serious adverse consequences from the granting of the interim injunction than would be suffered by the trade-secret holder without the interim injunction, if the interim injunction were to prove unfounded in the course of the proceedings.

The courts may grant any interim measure for the purpose of securing a nonmonetary claim, which is capable of achieving the purpose of securing the claim, and in particular:

  • temporarily prohibit the use or disclosure of a trade secret;
  • prohibit the production, offer, placing on the market or use of goods that are the subject matter of the infringement or their import, export or storage; or
  • seize or order the delivery of the goods alleged to be the subject of the infringement, including imported goods, in order to prevent their entry onto or dissemination on the market.

4. Is there a specific period after obtaining interim measures by which the applicant must bring proceedings for a substantive decision on the merits of the claim?

Yes, this is specified in the decision on the interim measures.

5. Are there circumstances in which damages or other financial compensation may be available in place of an injunction and other measures?

Yes, although these are mostly available upon request by the creditor when interim measures are secured for financial obligations. We are, however, unaware of instances where financial compensation has been used when dealing with trade secrets. 

6. Are any interim or final measures and remedies available through ex parte hearings?

Interim measures are generally granted in an inter partes proceeding. However, if certain additional requirements are met, an ex parte proceeding is also possible. If the court deems it appropriate, an oral hearing can be scheduled or a court expert can be appointed. However, based on our experience, the proceedings are mostly conducted on paper without oral hearings taking place.

7. How is financial compensation to the trade secrets holder calculated?

The infringer shall be liable to pay damages to the trade-secret owner in an amount to be determined in accordance with the general rules on damages, or, where it is not possible to determine such an amount, in an amount equal to the agreed or customary compensation for the lawful use of the trade secret.

If a trade secret has been infringed intentionally or with gross negligence, the holder of the trade secret may claim the agreed-upon or customary compensation for such use, increased by up to 200%, whether or not the holder has suffered any pecuniary damage as a result of the infringement.

8. What is the limitation period for claims relating to misappropriation of trade secrets?

Claims under the Trade Secret Act will be time-barred within three years from the date on which the trade-secret holder became aware of the infringement and of the person who acquired, used or disclosed the trade secret without consent. In any event, such claims will be time-barred within five years from the date on which the infringement occurred.

9. When does the limitation period begin to run?

There are no special circumstances set by Trade Secret Act that interrupt or suspend the limitation period.

10. Are there any circumstances that interrupt or suspend the limitation period?

No, there are no special circumstances set by Trade Secret Act that interrupt or suspend the limitation period.

Yes, the Trade Secret Act and the Civil Procedure Law foresee safeguards, which should ensure the protection of trade secrets during the proceedings. 

12. Are there any particular legitimate interests which may be invoked as an exception to the measures, procedures and remedies for trade secrets protection?

Yes, upon the request of the defendant in the litigation or proceedings for interim measures in relation to the infringement of a trade secret, a court may determine that a certain expense will be borne by the plaintiff if his actions have been determined unfounded.

13. Are any measures available where proceedings concerning trade secrets are manifestly unfounded and / or found to have been initiated abusively or in bad faith?

No, this is part of the interim proceeding.

No, this is part of the interim proceeding.

Employee / employer liability

1. In addition to any statutory protection of trade secrets, what protections can employers put in place to avoid misuse of trade secrets by its workforce? 

Employers can and should put in place express contractual obligations on employees to protect trade secrets and confidential information during and after termination of employment. It is important that trade secrets are clearly defined, and ideally the actions that will be considered a breach of confidentiality are defined as well. We recommend adopting an Employer's decision stipulating the data that is to be deemed business secrets. If the trade secrets are not clearly defined, the confidentiality provisions have no real effect and cannot be enforced by the employer.

2. Are there implied rights of protection for employers regarding misuse of trade secrets by its workforce?  

Yes, this results from the employee's side obligation not to harm the employer. Accordingly, employees must refrain from any conduct, which, by reason of the nature of the work, is materially or morally prejudicial to the employer's business interests or is likely to be prejudicial to the employer's business interests. The Employment Relationship Act also stipulates that the employee must not exploit for its personal use or disclose to a third party the employer's trade secrets designated as such by the employer, and which have been entrusted to the employee or otherwise brought to its attention. Information that meets the requirements for a trade secret under the Trade Secrets Act is deemed to be a business secret. An employee is liable for infringement if he or she knew or ought to have known of the nature of the information.

3. What other means can employers use to protect misuse of trade secrets by the workforce, particularly when staff leave? 

In addition to any confidentiality obligations, employer may consider the following:

  • Issuing explicit instructions about the obligation to keep trade secrets confidential;
  • Using protective provisions to prohibit the private use of e-mails and internet;
  • Prohibiting the storing of data on private end devices or sending company data to private email inboxes;
  • Giving instruction on compliance with IT security requirements and the use of company communication tools;
  • Implementing rules of conduct, particularly in sensitive areas (no photography/filming) or on entering certain areas;
  • Conducting regular training to raise awareness in the workforce about the importance of protecting trade secrets and confidential information.

4. Are there any protections for “whistleblowers” or similar rights for employees in relation to infringement of trade secrets?  

According to the Trade Secret Act, a trade secret that has been acquired, disclosed or used in the disclosure of an abuse, infringement or unlawful activity or to protect the public interest is not considered an infringement of the trade secret. The same applies in other cases defined by law or EU rules. On that note, Slovenia has not yet implemented Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the Whistleblower Protection Directive) and its implementation into national law is expected in year 2022. According to the draft law, declaration or public disclosure of information involving trade secrets are not unlawful if it is declared or disclosed by the applicant in accordance with this whistleblowing law.

Furthermore, under the Criminal Code, no punishment will be imposed for the unauthorised disclosure of a trade secret if the disclosure is made for reasons of general interest or legitimate public interest, or if the duty to protect the secret is waived by law.

5. Can an employer be liable for their employee’s infringement of a third party’s trade secrets?  

Yes, under certain circumstances an employer can be liable for the employee’s infringement of a third party’s trade secrets if the infringement occurred during the work process.

Commercial contracts aspects

1. What kind of protection/provisions are to be included in supply or similar contracts with respect to trade secrets?

Most importantly, a survival clause should be included in such contracts, which outlines the provisions or terms of the contract that remain in effect after the other terms have been met and the contract has been executed. If intellectual property and trade secrets are disclosed for any reason, that privileged information would need to remain confidential even after the relationship between the involved parties has ended.

2. What are typical pitfalls in contracts regarding protecting trade secrets?

Due to its sensitive nature, the biggest challenge is properly defining and identifying trade secrets in contracts. Clients should therefore set up appropriate internal systems, which can be referenced in contracts.

3. Are there any important aspects regarding protecting trade secrets cross border?

When dealing with non-EU countries, clients should ensure that their business partners have appropriate internal rules for trade-secret protection and should verify that the level of legal protection of trade secrets is the same. Otherwise, the contracts should include penalties to cover risks of unlawful use of trade secrets or potential infringements.

4. Are there any penalty clauses in contracts with regards to trade secrets?

Parties are free to negotiate such clauses among themselves.