Safeguarding secrets — a German employment law perspective

By Dr Sabine Bechtel and Nadia Roßmy

In the framework of contractual relationships that involve continued obligations, the issue of confidentiality typically combines conflicting interests. Against this background, it is inevitable that the parties of an employment relationship might get involved in a legal dispute regarding business and trade secrets, particularly following the termination of the employment relationship. The employer is interested in protecting trade and business secrets to a maximum extent. Contrary to this, the employee is interested in making use of the whole knowledge he has gained during the employment relationship for his future professional development. Even in an ongoing employment relationship, the conflicting interests of the parties regarding the confidentiality of certain business information may collide.

This article explains how to handle issues of trade and business secret protection from an employment law perspective in Germany.

It is common sense that information, circumstances and/or processes are qualified as trade or business secrets if: they are related to a particular business enterprise; they are known only to a limited group of people (and are therefore not public); they are kept confidential for the purpose of economic interest; and the business enterprise has an apparent and legitimate interest in keeping the information confidential…

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