Before the implementation of the EU Trade Secrets Directive (TSD), no specific protection to trade secrets was provided under French law. Therefore, the implementation of the TSD implied the adoption of a completely new legal regime. The French legislator implemented most of the provisions of the TSD and intended (approximatively) to respect the deadline imposed by the EU authorities and submitted a bill to the French Parliament.
The new Trade Secret Act is very close to the provisions of the TSD, without any important French specificities in the very few areas where the member States enjoy a sphere of flexibility, except perhaps the introduction of a civil fine to punish dilatory/abusive actions, whereas the TSD only provided for the possibility to impose sanctions in such cases without defining them.
The bill was voted and adopted by the Parliament on 14 and 21 June 2018. It is the outcome of a lengthy process. Prior to that, the bill had been amended several times and numerous auditions of third parties and professional organizations had been held, especially since trade secrets are a very sensitive subject matter in France (with a strong lobby from journalists and other whistleblowers).
However, a motion challenging the compliance of the voted bill with the French Constitution was filed before the Constitutional Court (Conseil Constitutionnel). By a decision handed down on 26 July 2018, the Court upheld the constitutionality of the provisions of the aforesaid bill.
The bill was finally enacted under No 2018-670 on 30 July 2018. A Decree No 2018-1126 implementing some provisions of the new Trade Secret Act has been adopted on 11 December 2018 to finalize the legislative process.
The TSD implementation deadline was 9 June 2018. The new Act implementing the TSD under French law came into force on 1 August 2018.
The adopted legislative draft does not provide for:
The Decree passed on 11 December 2018 provides for:
Actions to prevent or end a trade secrets breach
However, if the claimant does not file an action on the merits within 20 days working days or 31 calendar days if the latter period is longer from the date of the order, then the effect of the provisional or protecting measures will expire.
Preservation of the trade secrets before the courts
The new Trade Secret Act provides for provisional and protective measures, but the practical details and prerequisites for such measures to be granted will be subject to a forthcoming Regulation. The regime thus remains so far uncertain in this (important) respect.