Trade secrets are protected by statutory law in Belgium. The legal framework governing trade secrets in Belgium consists of Title 8/1 of Book XI of the Belgian Code on Economic Law (BCEL), the Belgian Judicial Code (JC) and the Law of 3 July 1978 on Employment Contracts. Amendments were made to the above-mentioned laws by the Law of 30 July 2018 on the Protection of Trade Secrets, which is an implementation of the EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (“Trade Secrets Directive”).

Furthermore, the Belgian Criminal Code sanctions the malicious or fraudulent disclosure of manufacturing secrets (Article 309 of the Criminal Code).

The following general principles may also apply to trade secrets.

• The general principles of contract law (Book V of the New Civil Code), including the duty of performing agreements in good faith (Article 5.73 of the New Civil Code).
• The prohibition on unfair competition (Article VI.104 of the BCEL).
• Non-contractual liability (Article 1382 of the (old) Civil Code).
• Criminal liability of managers if they do not act diligently regarding the protection of trade secrets (Article 2:56 of the Belgian Companies and Associations Code).
• The professional secrecy obligation imposed on certain professions.
• Misuse of trust (Article 491 of the Criminal Code).
• The jurisprudence and legal doctrine interpreting these legal rules.

The Belgian legislator introduced the same definition for “trade secret” in Article I.17/1, 1° of the BCEL as is used in the Trade Secrets Directive. A trade secret is information which meets all of the following requirements:

• it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
• it has commercial value because it is secret; and
• it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

The following elements are excluded from trade secret protection:

• an employee’s experience and skills that are honestly acquired in the normal course of their employment;
• an independent discovery or creation; and
• reverse engineering.

The protection of a trade secret is not subject to any formalities. Any piece of information which meets the above-mentioned criteria will constitute a trade secret, regardless of the medium on which this information is expressed (ie, orally, in writing, audiovisual, etc), of any mention of confidentiality on the document, or of the precise nature of the content. A trade secret can thus consist, for example, of commercial information (eg, contracts, business strategies and roadmaps, client lists, price policies, audit reports, and market surveys), technical information (eg, chemical formulas, source code of software, algorithms, production methods and processes, recipes and ingredient listings, and manufacturing designs) or practical information (eg, meeting notes, and set up of production lines built with standard machinery) or any other knowledge which gives a seller a competitive advantage over its competitors and which is not available to the public.

Article I.17, 1° of the BCEL defines what information is a trade secret, in accordance with the Directive. (See 1.2 What Is Protectable as a Trade Secret.)

Secret

The information is secret in a sense that is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question.

The specific combination of certain (known) elements may thus also be subject to trade secret protection.

The benchmark for assessing the secrecy is the interested community. This specific group should be interpreted as those people for whom the trade secret would be of value and whose knowledge of the information would impair its commercial value.

There are three indicators for assessing the secrecy of information.

• Material level – material accessibility to the information.
• Intellectual level – the people who have material access to the information are able to understand it.
• Legal aspect – the people who have physical and intellectual access must have the right to use and disclose the information. They must not be bound by an obligation of confidentiality regarding the information. This obligation may be based on the law (including good faith), ethics, contract (confidentiality agreement or clause in the employment contract) or usage.

Information is not considered as secret if it is accessible on all three levels.

Commercial Value

The secret must have a commercial, monetisable value. There must be a market for this information and a willingness among other parties, such as a competitor, to purchase it. The secret gives its holder a competitive advantage.

This commercial value can practicably be established by showing that the holder undertakes certain legal steps for its protection or that a competitor or any other third party has tried to obtain the information. The value can also be deducted for example from R&D costs or from licence fees for the use of the information.

Reasonable Measures

See 1.5 Reasonable Measures.

Taking reasonable measures in order to keep the information secret is a requirement that needs to be met in order to be able to qualify the information as a trade secret in the first place. Reasonable measures to protect the information are thus essential. This requirement is a best efforts obligation, rather than an obligation of result.

However, this notion of reasonable measures is broad and subjective. There is no clear set of measures to be applied. What sort of measures that should be (or have been) taken, will depend on the circumstances, such as the nature of the undertaking, the sector in which the undertaking is situated, the size of the undertaking, the cost and impact of certain measures, etc.

Examples of what can be used as reasonable measures include:

• contractual clauses;
• non-disclosure agreements (NDAs);
• physical and virtual security systems;
• the logging of ideas, products, concepts, services or processes with the i-DEPOT of the Benelux Office of Intellectual Property (BOIP);
• marking documents as confidential;
• downloading and printing restrictions;
• data logs;
• restricting access to certain documents or information on a need-to-know basis; and
• cybersecurity measures for ICT infrastructure.

Which measures and to what degree they must be implemented will finally be subject to the discretion of a judge who will assess this on a case-by-case basis.

The disclosure of trade secrets to employees does not affect the availability of trade secret protection.

Employees are subject to an obligation to refrain from misappropriating trade secrets, as well as secrets relating to personal or confidential matters, of which they may have knowledge in the performance of their professional duties, both during and after the employment (Article 17 of the Law on Employment Contracts).

It will, however, be up to the employer to take reasonable measures to keep the information secret.

Both the Trade Secrets Directive and the Belgian transposition thereof indicate independent discovery and reverse engineering as lawful acquisitions of a trade secret. As a consequence, the trade secret holder will have no legal remedies against such an acquisition (Article 3 of the Trade Secrets Directive; and Article XI.332/3 of the BCEL).

There are no specific protections available for computer software and/or technology trade secrets. The same provisions will apply as to other sorts of trade secrets.

Trade secrets are not subject to a specified duration of protection. As long as the conditions set out in Article I.17/1, 1° of the BCEL are met, trade secret protection will be available.

Public disclosure, loss of commercial value or failure to install reasonable measures will thus have the effect that the trade secret protection will cease.

Public disclosure should be distinguished from controlled disclosure. The latter will not affect the protectability of the trade secret, as opposed to public disclosure. Controlled disclosure can, for example, occur in light of an M&A transaction, licensing negotiations or when hiring a consultant. This disclosure can take place without detrimental consequence, provided that reasonable measures are taken to keep the information secret, such as the signing of an NDA and the obligated return of any physical copies regarding the trade secret after termination of the contractual relationship.

The Belgian legislative framework does not provide any specific rules regarding accidental disclosure. This disclosure will lead to the loss of trade secret protection, unless this disclosure is swiftly remedied. Therefore, apart from reasonable measures to avoid disclosure, the trade secret holder must implement measures for the detection and remedy of any unwanted disclosure.

A trade secret holder can license its rights to third parties. The Belgian legal framework does not provide any specific rules regarding such contracts. Therefore, the general principles of contract law, including contractual freedom, will apply.

It is strongly advised to impose an obligation on the licensee to implement similar or even more extensive reasonable measures to guarantee and safeguard the secret character, as part of an elaborated confidentiality clause in the licence contract that also survives the termination of the contract. Furthermore, the exact scope of the trade secret should be clarified. Indeed, a licensee must clearly know what the licensor’s trade secret consists of, in order to ensure that they do not misappropriate it.

Trade secrets do not legally qualify as intellectual property rights. They do not grant exclusive rights.

Trade secrets differ from the following intellectual property rights in the following ways.

• Patents:
1. Public disclosure of the invention is an inherent feature of a patent, as opposed to the secret character of trade secrets.
2. Absolute novelty is required in order to be granted patent protection. For trade secret protection, however, only general knowledge amongst or ready accessibility by the interested community will prevent the protection. This is less strict. For example, the consequence of a rare Arabic text explaining the invention is that no patent protection is available. However, trade secret protection could still be obtained in such case.
3. A formal registration is required in order to be granted patent protection, as opposed to trade secret protection.
4. Trade secret protection is not subject to a requirement of industrial application, as opposed to patents.
5. There is no patent protection available for software as such and business models. These are, however, classic examples of trade secrets.

• Copyright:
1. Copyright protects the expression of an idea, while a trade secret protects the idea itself.

• Trade marks and designs:
1. A formal registration is required in order to be granted protection, as opposed to trade secret protection.

It is possible for a plaintiff to assert trade secret rights in combination with other types of IP rights. Copyright and/or software rights can be asserted in combination with trade secret protection. Often, in the software context, the source code of a computer program is protected both by copyright and as a trade secret.

See 1.1 Sources of Legal Protection for Trade Secrets.

The Belgian Criminal Code sanctions the malicious or fraudulent disclosure of manufacturing secrets with imprisonment from three months to three years and by a fine from EUR400 to EUR16,000 (Article 309 of the Criminal Code).

“Manufacturing secrets”, however, is not defined in the legislation. This is an old notion which was used before the introduction of the Trade Secrets Directive. The Belgian legislator failed to amend this provision in the Criminal Code after the implementation of the Directive. However, “manufacturing secrets” cannot just be read as “trade secrets”. The term only covers more technical, industrial information, as opposed to more commercial information, like for example a business strategy.

The Criminal Code requires a malicious or fraudulent intent. The accidental disclosure will therefore not incur criminal liability. Criminal liability is also limited to the disclosure of the manufacturing secret by an (ex-)employee. The use or acquisition of the manufacturing secret, or the disclosure by a third party is therefore not envisaged, unless in the case of third party complicity.

Third-party complicity can also be sanctioned under Article 309 of the Criminal Code.

The general rules of private international law will apply with regard to extraterritorial misappropriations.

Hence, pursuant to Articles 4, 7 and 25 of the Revised Brussels Regulation, a Belgian court will have jurisdiction for disputes when:

• the infringer is established in Belgium;
• the misappropriation took place in Belgium; or
• the contract indicates the Belgian courts as the forum for any disputes.

A trade secret holder can oppose the unlawful acquisition, use and disclosure of trade secrets.

The acquisition will be considered unlawful where it occurred through:

• unauthorised access to or unauthorised appropriation or copying of documents, objects, materials, substances or electronic files lawfully in the possession of the trade secret holder that contain the trade secret or from which the trade secret may be derived; or
• any other conduct which, given the circumstances, is considered to be contrary to honest commercial practices.

The use or disclosure will be considered unlawful where it occurred without authorisation of the trade secret holder by someone who:

• acquired the trade secret unlawfully;
• breaches a confidentiality agreement or other obligation not to disclose the trade secret; or
• infringes a contractual or other obligation to restrict the use of the trade secret.

Any acquisition, use or disclosure of a trade secret by a person who knew, or ought to have known at the time of that acquisition, use or disclosure that the trade secret had been obtained from another person who acquired, used or disclosed this trade secret unlawfully, will also be considered unlawful (Article XI.332/4, Section 3 of the BCEL).

Article 17, 3° of the Law on Employment Contracts imposes a separate obligation upon employees, during the course of their employment as well as hereafter, towards their employer.

Employees cannot:

• unlawfully acquire, use or disclose trade secrets, secrets relating to personal or confidential matters, or secrets of which he/she may become aware in the course of the performance of his/her professional duties; or
• perform or co-operate in acts of unfair competition.

Apart from the general legal rules regarding trade secrets, this specific legal basis can be invoked against (former) employees.

The elements of a trade secret misappropriation claim will not differ if the misappropriation involves a (former) employee of the trade secret holder. In such a case, however, a debate regarding the scope of trade secrets, as opposed to the former employee’s own experience and skill which do not fall under the scope of the employer’s trade secret protection, may come into play.

There are no particular obligations in the Belgian legislation for joint venturers with respect to trade secrets. There is indeed a risk of leakage of know-how or use of trade secrets for other purposes by the joint venture partner. This risk may be reduced by contractual provisions that will govern the relationship between the partners. Ordinary trade secret law and contract law, as well as the general principles derived from it, will apply.

There is no specific legal framework in Belgium regarding industrial espionage. The general trade secrets regime will apply.

Belgium does not have any generally recognised best practices.

It is, however, advised to take into account the following principles:

• access to the trade secret should only be on a need-to-know basis;
• designate and list the information considered to be confidential or trade secrets, and explicitly qualify it as such;
• implement confidentiality clauses in contracts, including in employment contracts;
• implement a trade secrets policy setting out all protection measures and rules in a central place;
• implement an employee monitoring programme to determine what is allowed; and
• take reasonable measures (see 1.5 Reasonable Measures).

An exit interview is an opportunity for the employer to enhance the protection of the trade secrets by:

• reminding the departing employee of his/her confidentiality obligations which are still in force;
• giving the employee a copy of the most recent NDA/confidentiality agreement signed;
• questioning the departing employee on what confidential information he/she had access to and whether some of this information is still accessible; and
• asking the nature of the new position.

Furthermore, an employer should:

• make sure that the access to the company’s computer systems (login, passwords, etc) of the departing employee is disabled;
• ensure that the employee does not leave with material containing confidential documents (on their laptop, phones, tablet, etc) and takes possession of the company-owned material; and
• ask the departing employee to sign a document attesting that he/she understands the confidentiality obligations.

There is no legal obligation in Belgium to conduct such exit interviews. Departing employees are also not obliged to give written undertakings to respect the confidentiality of trade secrets, nor to answer questions about the nature of their new position.

Article XI.332/2 of the BCEL states that the provisions on trade secrets may not be interpreted as restricting the mobility of workers. Therefore, these rules should not prevent employees from using information that does not constitute a trade secret as defined by law (Article I.17/1, 1° of the BCEL), nor from using their experience and skill acquired in an honest manner in the normal course of their work.

Belgium does not support the doctrine of “inevitable disclosure”. This doctrine grants an employer the right to prohibit a former employee from picking up a new job if this new job would inevitably entail that the former employee would have to rely on his/her knowledge of the former employer’s trade secrets.

Belgium does not have any generally recognised best practices for hiring employees from competitors.

It is, however, advised to organise an entry interview during which the employer insists on the fact that he/she is forbidden to reveal trade secrets that he/she will become aware of during the course of his/her duties and that he/she undertakes to respect this. In addition, it is strongly recommended to have them sign an NDA or confidentiality clause as part of their employment contract, by which they undertake to abide by the company’s confidentiality policy both during and after their period of employment.

First of all, the action cannot be admitted if the claimant does not have the capacity and interest to bring it (Articles 17 and 18 of the JC). The interest must be concrete in the sense that the decision requested must have a concrete impact on the situation of the parties. The interest must be personal, born, actual and legitimate. A potential interest is not sufficient.

Furthermore, the counterparty’s identity, the location of the misappropriation and the competent court must be determined.

To that end and in order to determine the best litigation strategy and to substantiate the merits of the claim, it will be necessary, before filing a lawsuit, to collect all the relevant evidence. Each party carries the burden for the facts it alleges (Article 870 of the JC). In this case, the claimant will have to prove on the one hand that a trade secret is involved, as defined by the law (and fulfilling the conditions listed in 1.4 Elements of Trade Secret Protection), and on the other hand that there is an act of misappropriation (as defined in 2.1 The Definition of Misappropriation).

It is possible to request assistance for the collection of evidence (see 5.7 Obtaining Information and Evidence). For example, prior to the proceedings on the merits, to the court’s president can appoint a sequestrator upon unilateral request.

Alternatively, it can be considered, prior to or instead of filing a lawsuit, to use alternative methods of dispute resolution before initiating legal proceedings (eg, arbitration or mediation).

Pursuant to Article XI.342/2 of the BCEL, claims concerning trade secrets are subject to a 5-year limitation period, which begins to run from the day following the day on which the claimant becomes aware of (i) the conduct and the fact that this conduct constitutes a misappropriation of a trade secret; and (ii) the identity of the infringer. Any such action shall in any event be time-barred after 20 years from the day following the day on which the misappropriation occurred. A cease-and-desist action before the president of the enterprise court, in the context of as in summary proceedings, can no longer be brought one year after the alleged facts have come to an end (Article XVII.5 of the BCEL).

Article 15 of the Law on Employment Contracts provides that actions arising from the employment contract shall be limited to one year after the termination of the contract or five years after the event which gave rise to the action, but the latter period may not exceed one year after the termination of the contract.

A trade secret holder can instigate different kinds of proceedings before the Belgian courts. If the trade secret holder has the required interest and capacity, he/she can initiate (i) summary proceedings for the granting of preliminary measures, (ii) fast-track (as in summary) proceedings for the granting of an injunction, or (iii) ordinary proceedings on the merits to obtain injunctive relief and monetary damages.

Summary Proceedings

In cases of urgency, the president of the court can be addressed through a writ of summons (inter partes) or (if also absolute necessity exists) or unilateral request (ex parte), in order be grant preliminary measures, such as a sequestrator (see 5.6 Seizure Mechanisms). There is a state of urgency when there is fear of damage of a certain gravity or even of serious inconvenience, which makes an immediate decision desirable to preserve the interests pending the decision on the merits. Absolute necessity exists, for example, when the surprise effect of an order obtained unilaterally is needed to avoid the risk of loss of evidence.

Fast-Track (As in Summary) Proceedings

This “as in summary proceedings” entails a procedure before the president of the competent court ensuring a faster procedure (usually six to nine months for first instance) where parties exchange trial briefs and where the outcome is a decision on the merits. The claimant can obtain an injunctive order (cease-and-desist order with accompanying injunctive remedies). However, in such proceedings, the president cannot grant monetary relief (except for frivolous and vexatious proceedings). These proceedings are initiated through a writ of summons.

Ordinary Proceedings on the Merits

This procedure is the longer, standard procedure (usually 18 to 24 months for first instance) before the competent court resulting in a decision on the merits, which does not benefit from a rapid procedure but where the claimant can ask for monetary relief (compensation for damages) together with (or, if already obtained in the as in summary proceedings, in addition to) injunctive relief (cease-and-desist order with accompanying injunctive remedies).

A trade secret lawsuit on the merits initiated by a writ of summons, in which the trade secret holder sets out his/her claims and the grounds therefor (Article 700 et al of the JC). The writ of summons will be served to the defendant by a bailiff (see 6.2 Trial Process).

The material jurisdiction lies with the enterprise court, which has the exclusive jurisdiction for trade secret disputes. Indeed, without prejudice to the competence of the labour court, the enterprise court hears, even when not all parties are enterprises, all claims relating to the misappropriation of a business’s trade secret, regardless of the value of the claim.

The labour courts will only have jurisdiction in case of misappropriation of trade secrets by an employee during his/her employment agreement (Article 578 of the JC), whilst the enterprise court maintains jurisdiction regarding any misappropriation of trade secrets that occurs after the termination of the employment agreement. However, the District Court of West-Flanders ruled on 17 December 2021 that if an employee is guilty of violation of trade secrets during the employment contract with a view to using them after the termination of the employment agreement, the labour court retains its jurisdiction.

If the misappropriation is brought as a counterclaim, the court seized for the principal claim will retain jurisdiction over this counterclaim.

The following courts shall have territorial jurisdiction for a claim:

• the court established at the seat of the court of appeal within whose jurisdiction the misappropriation took place or, at the option of the claimant, the court established at the seat of the court of appeal within whose jurisdiction the defendant or one of the defendants has his/her domicile or residence;
• if the defendant or one of the defendants has no domicile or residence in Belgium, the court established at the seat of the court of appeal within whose jurisdiction the claimant has his/her domicile or residence; and
• the court as appointed by any applicable contractual provisions.

However, this provision does not prevent disputes relating to the misappropriation of a trade secret from being brought before arbitral tribunals.

The general rules of evidence apply. Every party carries the burden of proof for the facts it alleges (Article 870 of the JC and Article 8.4 of the New Civil Code). Article 8.8 of the New Civil Code enshrines the principle of unrestricted evidence. Except in cases where the law provides otherwise, evidence may be adduced by any means.

As a general rule, Article 8.5 of the New Civil Code establishes the principle of certainty of proof. This means that the evidence must be produced with a reasonable degree of certainty. It is also possible to provide proof by plausibility for the person who carries the burden of proof of a negative fact (Article 8.6 of the New Civil Code). The same rule applies to positive facts for which, by the very nature of the fact to be proven, it is not possible or not reasonable to require certainty of proof.

It is different for a claimant acting in summary proceedings and requesting the preliminary measure because he/she is precisely not able to prove his/her claims with certainty. In this case, the claimant will have to demonstrate, in order to establish his/her legitimate interest, the existence of a plausible dispute.

In civil cases, the parties are bound by an obligation of sincerity. A judge may order any party to the dispute to produce the evidence available to him/her (Articles 871 and 877 of the JC). Furthermore, the judge may “draw any consequence he deems appropriate” from the refusal to collaborate in the taking of evidence (Article 972bis of the JC).

The use of illegally obtained evidence may only be excluded, unless the law expressly provides otherwise, if the obtaining of such evidence would undermine the reliability of the evidence or jeopardise the right to a fair trial (Antigone case law).

When the president of the enterprise court acts in summary proceedings for the alleged misappropriation of a trade secret and subject to the fulfilment of the conditions described in 5.3 Initiating a Lawsuit, Article 584 of the JC gives the right to order the precautionary seizure of the accused products and other evidence.

When the enterprise court acts in proceedings on the merits, Article XI.336/3 of the BCEL states that when the judge finds that a trade secret has been misappropriated, he/she may order at the request of the trade secret holder, a series of measures, including the appointment of a sequestrator. A seizure can also be requested as a preliminary measure in order to examine the claim or settle an incident (Article 19, Section 3 of the JC). On the basis of the evidence obtained, the cessation of the unfair competition and damages can then be demanded.

The seizure will be carried out by a bailiff. If the bailiff is also appointed as sequestrator, he/she will keep the seized documents and information pending a decision on the merits of the case.

This measure must be proportionate to interests of the defendant, the legitimate interests of third parties and the public interest (Article 1369quater of the JC).

Summary Proceedings

The judge may order proportionate preliminary measures, as described under 5.6 Seizure Mechanisms.

On the Merits

Preliminary measures, including the seizure of evidence, can be requested at any stage of the proceedings (Article 19, Section 3 of the JC), as described under 5.6 Seizure Mechanisms.

Furthermore, the judge may order any party to produce evidence in his/her possession (see 5.5 Initial Pleading Standards). The Court of Cassation has ruled in favour of a general civil seizure of evidence, provided that sufficient safeguards are put in place to ensure that it does not turn into a “fishing expedition”. The measures imposed must be precise and proportionate, with necessary safeguards for the targeted party (Article 1369quater of the JC). Measures that go beyond what is strictly necessary cannot be granted.

The judge, both in summary proceedings and on the merits, may also appoint expert witnesses for obtaining information (see 6.3 Use of Expert Witnesses).

The specific mechanism of seizure in case of counterfeiting in relation to intellectual property rights is not available for trade secrets misappropriation, since the latter do not qualify as IP rights.

The Judicial Code provides for a general obligation of confidentiality for any person who, by reason of his/her participation in judicial proceedings, has become aware of a trade secret (Article 871bis, Section 1 of the JC). This applies in particular to the parties, their lawyers, judges and court staff, witnesses, experts, etc. This obligation applies both during and after the proceedings.

Furthermore, the judge has the possibility to order specific measures, such as restricting access to all or part of documents containing trade secrets and/or hearings, as well as providing for a non-confidential version of his/her judicial decision (Article 871bis, Section 2 of the JC). Access to the trade secrets can be restricted to a designated category of persons (the “confidentiality club”). This club includes at least one natural person for each party and/or the lawyer of each party or another representative to the court proceedings. The Antwerp court of appeal has clarified in its judgment of 13 May 2020 that the confidentiality club may indeed only consist of the lawyers of the parties. However, the court is consistent and prohibits these lawyers from sharing with their clients the information communicated within the confidentiality club, either directly or through discussion in the pleadings. Anticipating the practical difficulties this would cause, however, the court expressly stated that it can always be requested to add “a natural person” to the confidentiality club.

A fine of EUR4,000 to EUR200,000 can be imposed on the person who does not respect this obligation of confidentiality, without prejudice to any damages that may be claimed.

Possible defences are as follows.

• The court has no jurisdiction to hear the claim.
• The claim is inadmissible, for example, if the claimant does not have the capacity or interest to bring the claim.
• The information in questions does not qualify as a trade secret (see 1.2 What Is Protectable as a Trade Secret).
• Absence (or insufficient proof) of misappropriation.
• The information came from independent discovery or creation, lawful reverse engineering, or the information was received from a third party in circumstances where the defendant had no reason to believe that the secret had been acquired unlawfully.
• The misappropriation occurred in light of fundamental rights, such as the freedom of expression and information, or the information was of general interest, for example, in case of whistle-blowing (Article XI.332/2 of the BCEL).
• No prejudice was suffered that could justify an award of damages or in causal link with the misappropriation.
• The amount of damages requested is excessive in relation to the prejudice suffered.
• The injunction claimed is formulated too vague and general.

In the case of summary proceedings: urgency is not established.

In the case of a unilateral request: there is no absolute necessity.

Belgian law does not have a mechanism equivalent to the “dispositive motions”.

The total cost of litigation varies according to the type of procedure (ie, summary proceedings, fast-track (as in summary) proceedings or ordinary proceedings on the merits) and the complexity of the case. The latter will largely depend on the parties’ and the court’s attitude (ie, the length of the writ of summons and trial briefs, the number of the parties, the possible appointment of a judicial expert and the scope of his/her mission, the possible reopening of debates, the number of court hearings...). Therefore, it is very difficult to provide a relevant estimate of the expected cost, as this can vary between EUR5,000 and a few hundred thousand euros.

The losing party must pay all judicial costs of the litigation.

• Judicial costs:
1. Roll fee – the tax for placing a case on the court’s agenda. For the enterprise court, this amounts to EUR165.
2. Bailiff costs – for the writ of summons, the cost is generally EUR250 to EUR500, plus 21% VAT. For the notification of a judgment, the cost usually varies between EUR200 to EUR300.
3. Expert’s fees – these vary in function of the expert’s mission. The court may determine the advance payment that each party must deposit (Article 987 of the JC).
• Lawyer’s fees:
1. For the lawyer’s fees, a lump-sum contribution with a minimum and maximum amount is provided by Article 1022 of the JC. This will however not cover the actual costs of a lawyer. However, no party may be required to pay compensation for the intervention of another party’s lawyer beyond the maximum amount of the procedural indemnity (Article 1022, Section 6 of the JC) (see 7.4 Attorneys’ Fees).

The enterprise court will hear any dispute regarding trade secrets (see 5.4 Jurisdiction of the Courts). This court typically consists of a president, assisted by two consular (non-professional) judges (non-professional magistrates). These cases are never tried by a jury.

The trial process follows the classic pattern of any civil proceedings.

• The lawsuit is initiated in accordance with 5.3 Initiating a Lawsuit.
• An introductory hearing will take place, during which the court decides how the procedure will be organised. The parties can agree on a procedural calendar or, when no agreement can be reached, this will be imposed by the court ex officio (Article 747 of the JC). The procedural calendar sets out the deadlines for filing submissions (trial briefs) and exhibits, as well as the pleading date.

Pleadings may take place at this introductory hearing for cases which require only a succinct debate (Article 1066 of the JC), or regarding any preliminary measures claimed (pursuant to Article 19, Section 3 of the JC) such as the appointment of a sequestrator or a judicial expert, after which an interlocutory judgment is issued.

• The parties will file their submissions and exhibits in accordance with the procedural calendar. If a new and relevant fact arises, a party may request an additional submission deadline (Article 748 of the JC). However, the defendant must always have the last word.
• After this written phase, the oral phase will take place, ie the pleadings. The court will hear the parties and any (expert) witnesses (Article 755 of the JC). The hearing is, in principle, public. However, it is possible to derogate from this principle for trade secret litigation in accordance with 5.8 Maintaining Secrecy While Litigating.
• After the pleadings, the court will take the case into consideration (Article 796 of the JC). In exceptional circumstances, the debate may be reopened ex officio or at the request of a party (Article 772 of the JC).
• A judgment should in principle be issued within one month.

An appeal against any interlocutory judgment or the final judgment of the court must be filed within one month of the official service of the judgment. If no appeal is filed, the judgment will be final.

Expert witnesses can be used in proceedings before the Belgian courts when there is a technical problem for which a technical opinion is required. The judge must limit the investigative measure to what is necessary for the solution of the dispute, giving preference to the least expensive measure (Article 875bis of the JC).

A brief plea is made on the request for an expert opinion. The judge is never obliged to appoint an expert, even if the parties agree. He/she may consider that the request is unfounded or prefer a less costly measure.

The expert must indicate within eight days whether he/she accepts his/her mission (Article 972 of the JC). Afterwards, the parties are obliged to co-operate with the expert (Article 972 bis of the JC). At the end of his/her work, the expert sends his/her findings, to which he/she has already attached a provisional opinion, to the judge, the parties and their counsel for reading (Article 976 of the JC).

The expert sets a reasonable timeframe in which the parties must make their observations, taking into account the nature of the dispute. This period should be at least 15 days. If, after receiving the parties’ observations, the expert considers that further work is indispensable, he/she may request the judge’s authorisation to do so (Article 976 of the JC). It is compulsory for the expert to try to reconcile the parties (Article 977 of the JC).

It is also possible to request an expert witness in summary proceedings. However, in courts where expertise can be sought directly on the merits (pursuant to Article 19, Section 3 of the JC), summary proceedings are likely to be dismissed for lack of urgency.

The courts will never be bound by an expert opinion.

Preliminary injunctive relief can be obtained through summary proceedings (Article 584 of the JC) or during the ordinary proceedings on the merits (Article 19, Section 3 of the JC).

In order to be granted preliminary injunctive relief, the trade secret holder must demonstrate that (i) the information is prima facie a trade secret owned by the claimant, (ii) there is a prima facie misappropriation of this trade secret, and (iii) the preliminary injunctive relief is a proportionate measure. Urgency must also be established when the preliminary injunctive relief is requested through summary proceedings.

Preliminary injunctive relief will in principle be in force until a decision on the merits has been taken. Article 1369quinquies of the JC provides for the possibility of revoking such measures if two conditions are met: (i) the claimant does not initiate, within a reasonable period of time, proceedings leading to a decision on the merits of the case before a competent court, and (ii) the information in question no longer qualifies as a trade secret for reasons beyond the defendant’s control.

In cases where provisional measures are revoked, the court may order the claimant, at the request of the defendant or an injured third party, to pay appropriate compensation to the defendant or injured third party for any damage caused by these measures (Article 1369septies of the JC).

As an alternative to preliminary measures, the court may impose a condition on the continuation of the allegedly unlawful use of a trade secret, namely that a security be provided to compensate the trade secret holder. The court cannot order disclosure of the trade secret in exchange for the provision of security (Article 1369sexies of the JC).

The damages should compensate for the total and actual damage suffered (restitutio in integrum), which is estimated on the basis of the loss sustained (damnum emergens), the loss of profits (lucrum cessans) and the moral harm. Compensation for damages can be claimed apart from any other measure imposed by the court. Whether or not the infringer acted in good faith will be irrelevant for the calculation of the damages (Article XI.336/5 of the BCEL).

If the parties concluded an NDA, the misappropriation would also constitute a breach of contract. For this contractual liability, the compensation is limited to the damage that was reasonably foreseeable at the time of the conclusion of the contract, unless the non-performance was intentional (Article 5.87 of the New Civil Code). This liability can be combined with non-contractual liability (for which full compensation can be sought), if (i) the non-performance also constitutes a violation of law or act of negligence (Article XI.332/4, Section 2 of the BCEL), and (ii) the latter caused damage other than the damage attributable to the non-performance (Article 5.237 of the New Civil Code).

If it is difficult to estimate the exact amount of damages, the court may grant a fair and equitable (ex aequo et bono) lump sum compensation (Article XI.336/5, Section 2 of the BCEL).

At the request of the trade secret holder, the court may, by way of damages, order the delivery to the trade secret holder of the infringing goods, and in some cases also the materials and tools used for the creation of these goods. If the value of such goods, materials and tools exceeds the amount of the actual damage, the court shall determine the compensation to be paid by the trade secret holder (Article XI.336/5, Section 3 of the BCEL).

Punitive damages are not allowed under Belgian law.

A permanent injunction can be obtained through fast-track (as in summary) proceedings or ordinary proceedings on the merits of the case.

When the misappropriation of a trade secret is established, the court can impose a permanent injunction. Furthermore, the court can also impose the following measures (Article XI.336/3 of the BCEL):

• prohibition to acquire, use or disclose the trade secret;
• prohibition to produce, offer, place on the market or use infringing goods, or import, export or store infringing goods for those purposes;
• recall of the infringing goods from the market;
• deprivation of the infringing goods of their infringing quality;
• destruction, the infringing goods or withdrawal from the market;
• destruction or handover of all or part of any document, object, material, substance, or electronic file containing or embodying the trade secret; and
• publication of all or part of the judgment (Article XI.342/3 of the BCEL).

The compliance with these measures may be subject to a penalty payment (Article 1385bis of the JC).

The judge can limit the duration of the measures. The duration must be sufficient to eliminate any commercial or economic advantage that the infringer might have derived from the misappropriation of the trade secret (Article XI.336/4 of the BCEL).

The measures shall be revoked or otherwise cease to have effect, at the request of the person subject to the measures, if the information in question no longer meets the legal requirements to be qualified as a trade secret, for reasons that do not depend directly or indirectly on that person (Article XI.336/4, Section 2 of the BCEL).

In order to award any of these measures, the court must carry out a proportionality test, taking into account the following elements (Article XI.336/4 of the BCEL):

• the value or other specific features of the trade secret;
• the measures taken to protect the trade secret;
• the conduct of the infringer in misappropriating the trade secret;
• the impact of the unlawful use or disclosure of the trade secret;
• the legitimate interests of the parties and the impact which the granting or rejection of the measures could have on the parties;
• the legitimate interests of third parties;
• the public interest; and
• the safeguarding of fundamental rights.

The procedural indemnity is a lump-sum contribution to the costs and fees of the successful party’s lawyer (Article 1022 of the JC). Any additional compensation is excluded by law. The amount of this procedural indemnity can vary according to the circumstances of the case, but must in any case stay within the range of the minimum and maximum amounts as set by the Royal Decree of 26 October 2007. Factors that can be taken into account are the financial strength of the losing party, the complexity of the case, the contractually determined fees for the successful party, and any manifestly unreasonable nature of the situation.

If both parties are partially successful, the costs of the litigation (including the procedural indemnity) can be split and imposed on the different parties.

The losing party pays (all or part of) the costs due that had to be paid to obtain and enforce a court decision. It must be demonstrated that these costs were directly related to the procedure. Also, the costs of enforcement (service, writ of summons, seizures, etc) are to be borne by the party against whom enforcement is sought (Article 1024 of the JC).

The main ordinary remedy against any judgment is an appeal. This may be lodged as soon as the judgment is pronounced by each party that was not (fully) successful. In most cases the appeal is lodged by means of a request for appeal, which is filed at the registry of the court of appeal in as many copies as the number of parties. The appellant must necessarily state the grounds for his/her appeal. The time limit for filing an appeal is one month from the service of the judgment or notification. Against a preliminary ruling, an appeal can only be filed together with the appeal against the final judgment on the merits (Article 1050 of the JC).

Opposition is only possible against judgments delivered in absentia and which are not subject to appeal. Opposition may only be lodged by the party in default who wishes to have the case retried by the judge who has already ruled (in his/her absence). Except in exceptional cases, the opposition must be lodged within one month of the day of service of the default judgment. An opposing party who allows him-/her-self to be judged a second time by default is no longer entitled to make a new opposition (Articles 1047–1049 of the JC).

As regards the interested third party (most often in reality the opposing party), as he/she is not yet a party to the proceedings, the decision can only be appealed against by way of a third-party opposition within one month of the service of the decision (Articles 1033–1034 of the JC).

The appeal court re-examines the case in fact and in law, in order to issue a new decision.

When all the remedies of appeal and opposition to a judgment have been exhausted, only an appeal before the Court of Cassation remains possible. This Court, however, does not rule on the facts of the case, but only on the question of whether the challenged legal decision violates the law or disregards the legal rules.

Also action for interpretation if the judgment is ambiguous or obscure, or for rectification if the judgment contains calculation or errors or obvious omissions, or if the court failed to rule on a point of the claim, is possible (Articles 793–794/1 of the JC). The judge cannot extend, modify or restrict the rights enshrined in the decision. The action is brought before the judge who issued the decision. Unless all parties to the proceedings agree, the request for interpretation may not be made before the expiry of the time limits for appeal or cassation (Article 798 of the JC). These actions are no longer possible when an appeal is filed against the decision (Article 798 of the JC). This rule is applied flexibly, especially since most judgments are now immediately enforceable.

As stated in 1.14 Criminal Liability, the Belgian Criminal Code sanctions the malicious or fraudulent disclosure of manufacturing secrets with imprisonment from three months to three years and with a fine from EUR400 to EUR16,000 (Article 309 of the Criminal Code).

Article 22 of the Code of Criminal Procedure makes the public prosecutor responsible for “the investigation and prosecution of offences which are the responsibility of the assize courts, the criminal courts and the police courts”. At a later stage, the public prosecutor’s office will also be responsible for enforcing criminal convictions (Articles 165, 197 and 361 of the Code of Criminal Procedure).

The victim will first consider filing a complaint for the malicious or fraudulent disclosure of manufacturing secrets. This complaint can be filed with the police or the public prosecutor’s office.

Three main situations can be encountered.

• The public prosecutor directly summons the offender to appear before the criminal court (Article 182 of the Code of Criminal Procedure) on the grounds of misdemeanours. When notified of this writ of summons, the trade secret holder may present itself as the injured party at the hearing and claim compensation for damages, after establishing the causal link between the offence with which the offender is charged, and the damage suffered (Article 67 of the Code of Criminal Procedure).
• The public prosecutor, upon receiving the complaint, transmits to the investigating judge a request to open an investigation to seek and establish the offences and, if necessary, to issue an arrest warrant (Articles 53 and 54 of the Code of Criminal Procedure).
• Finally, after gathering the necessary information, the public prosecutor may close the case without taking any further action. In this way, the public prosecution is not initiated, either because the evidence gathered is unfounded or for opportunistic reasons.

If the claimant is not satisfied with the decision of the public prosecutor’s office to close the case, he/she may continue the action by filing a direct writ of summons with the criminal court or by filing a civil action with the investigating judge.

The provisions of Article XI.342/1 of the BCEL giving jurisdiction over trade secrets to the enterprise court do not preclude disputes relating to the misappropriation of a trade secret from being brought before arbitral tribunals (Article XI.342/1 of the BCEL).

There are five possibilities of alternative dispute resolution, namely the following.

• Mediation – this is a voluntary and confidential process of conflict resolution that is led by a neutral third party, the mediator. It is a process designed to enable the parties to re-establish dialogue between themselves and find mutually satisfactory solutions. Mediation may also be imposed by a judge upon the parties (Article 1734 of the JC).
• Collaborative law – this is a voluntary and confidential negotiation process, allowing the parties to reach a mutually acceptable and sustainable agreement, with the help of their lawyer. Collaborative lawyers work together with the parties to enable the parties to regain better communication and undertake not to take over the litigation phase of the case if the process fails.
• Negotiation – this is an amicable resolution of conflicts, seeking common ground through dialogue and compromise. Negotiation, unlike mediation or collaborative law, is not subject to any particular rules or framework, nor does it require any specific training for those who practice it. It can be a positional negotiation or a negotiation about the needs of the parties.
• Conciliation – this is a resolution of disputes in whole or in part by recourse to conciliation by a third-party specialising in a particular area of expertise. The parties define the nature of the intervention of the conciliator(s) and, in particular, whether the mission is confidential or not, whether it concerns certain different points of view or all points, etc. The parties expect the conciliator to propose options or solutions for settlement on his/her own initiative.
• Arbitration – this is a procedure which allows the parties to appoint arbitrators who will make an award. The arbitral tribunal makes an award after hearing the parties and examining the file and documents submitted. The award is binding on the parties and, if necessary, can be enforced, just like a judgment.

These alternative dispute resolution mechanisms have a number of (varying) advantages:

• there is more control over the costs and time of the process;
• confidentiality is imposed by the legal framework or can be demanded; and
• there is more flexibility.