Home / All CMS Expert Guides / CMS Expert Guide on Trade Secrets Case Law /
The Netherlands

Case law on Trade Secrets in The Netherlands

Relevant topics related to the 2016 Trade Secret Directive (EU 2016/943)

Table of contents
  1. 1. Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)
  2. 2. Reverse Engineering - e.g. art. 3(1)(b)
  3. 3. Infringing products - e.g. art. 2(4) and 4(5)
  4. 4. The (IP-like) catalogue of remedies - e.g. art. 10 and 12
  5. 5. Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5
  6. 6. Secrecy in court proceedings (“confidentiality club”) - art. 9
The Netherlands
Add jurisdiction
Choose a jurisdiction to compare with

1. Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)

Decision of the Court of Appeal Amsterdam on 17 November 2020, ECLI:NL:GHAMS:2020:3102

In the context of a tender, municipalities published a file containing data of the current carrier. The Court of Appeal held that the current carrier had taken sufficient measures to keep the data secret. For instance, the carrier stipulated confidentiality with their contract partners.  Furthermore, the carrier has repeatedly pointed out to municipalities the secret and confidential nature of the data.

Decision of the District Court Limburg on 5 February 2020, C/03/261042 / HA ZA 19-120

According to the District Court was the know-how regarding production of specialist materials for artificial turf facilities adequately protected with confidentiality clauses, NDAs, information in the staff handbook, camera surveillance, visitation lists and a clean desk policy.

Decision of the District Court The Hague on 20 March 2019, ECLI:NL:RBDHA:2019:2729

Concerning a test set-up for vertical cultivation of herbs, in which three different phases of cultivation were tested in three different set-ups in the same hall; these set-ups were separated from each other and were built at different times by different contractors, to prevent any of them from observing the whole. It had been made clear to the contractors that the know-how was to be kept secret, they had signed a non-disclosure agreement, there were security cameras, and at the first incident (photos taken by workers), the contractor was immediately called to account. The Court decided that reasonable steps has been taken to keep the information secret, it could not be required to deploy staff to oversee compliance (physically preventing photographs from being taken).

Decision of the District Court of The Haque on 27 February 2019, ECLI:NL:RBDHA:2019:1924

Mixing ratio for chlorine dioxide product The court ruled that with the contractual confidentiality obligation, which were also enforced, reasonable measures have been taken to keep the mixing ratios secret.

2. Reverse Engineering - e.g. art. 3(1)(b)

N/A

3. Infringing products - e.g. art. 2(4) and 4(5)

Decision of the District Court of The Haque on 20 December 2019, ECLI:NL:RBDHA:2019:13821

The defendant used a list of Eichholtz customer contact details received from a (former) employee of Eichholtz and used this list to send promotion mails. The District Court decided  that the list was received in the context of his trading relationship with Eichholtz, therefore its permitted use was limited to activities in that context. During that trading relationship, Eichholtz was a wholesaler, supplying retailers selling to consumers. The use of the list after the termination of the trading relationship for business-to-business promotion does not fall within that scope. The defendant therefore acted unlawfully against Eichholtz under the Trade Secret Act by sending business-to-business promotion mails.

4. The (IP-like) catalogue of remedies - e.g. art. 10 and 12

Decision of the District Court Limburg on 5 February 2020, C/03/261042 / HA ZA 19-120

Know-how regarding production of specialist materials for artificial turf facilities. The interim relief judge was requested to grant leave for a prejudgment attachment of evidence on a number of documents, including all documents in written and electronic form.  At this stage of the proceedings - it has been sufficiently plausibly established that trade secrets were involved and breached. The inspection claim is granted.

5. Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5

N/A

6. Secrecy in court proceedings (“confidentiality club”) - art. 9

Decision of the District Court The Haque on 15 October 2021, C/09/6 17654 / KG ZA 2 1-855

To defend against an inspection request, it is necessary to provide insight into its ingredients, recipe, composition, method, process and production process. To address concerns expressed that providing this confidential information would lead to disproportionate harm, a confidentiality regime is imposed. The circle of persons allowed to know the confidential information consist of a patent attorney, lawyers and one other natural person per litigant. The parties are free in their choice of the person to be appointed by each of them, with the proviso that in doing so they may appoint (at most) one employee of the R&D department and no persons with a primarily commercial function.

Decision of the Supreme Court on 23 April 2021, ECLI:NL:HR:2021:641

The Supreme Court has held that a confidentiality regime can also be imposed ex officio by the court if a party claims that certain information to be submitted are trade secrets. It is therefore not mandatory parties have to apply for a confidentiality regime with the court.

Decision of the Court of Appeal The Hague on 30 April 2019, ECLI:NL:GHDHA:2019:1537

In view of the confidential nature of the information to be provided, the Court of Appeal expressly marks the relevant information as confidential. The Court of Appeal will limit access to the productions submitted, to:

  • one designated employee (a director, staff member, or permanent auditor), and
  • one designated lawyer,

who may not disclose this information to others, in the sense that these persons may only make available to others a version of said documents in which the parts containing the business secrets have been deleted or edited in such a way that they are illegible. The Court will reinforce this duty of confidentiality with a penalty payment.