Located in the heart of Europe, Belgium is a true hub of logistics and innovation. It is for example home to one of Europe’s largest sea ports (with all the warehousing infrastructure that one would expect). Belgium also hosts several, globally leading biotech and life sciences clusters. It is no coincidence for example that pharma giant Pfizer has one of its largest production and packaging sites in Puurs, a small Belgian town, where it produces its Covid-19 vaccine. A few miles north, Jansen Pharmaceuticals has its HQ.
Such hubs are not just rich in talented human resources, but also in cutting edge and highly valuable know-how. A high concentration of know-how, combined with the increased mobility of employees, means a high(er) risk of misappropriation of this valuable information by unauthorized (third) parties. When a (foreign) company suspects its know-how has been misappropriated in Belgium, it will need evidence to substantiate this allegation in court. If the know-how is (also) covered by an intellectual property (IP) right, the holder of the know-how has access to a very efficient means of collecting evidence: the descriptive counterfeit seizure whereby discovery-like evidentiary measures will be granted ex parte. When the misappropriated know-how is only protected as a trade secret, no similar measures are provided for under EU law. The Belgian judges have therefore in the past not been very eager to grant trade secret holders access to ex parte evidence-gathering. With a recent judgment, however, the Brussels Court of Appeal has left the door behind which discovery-like measures are stored for holders of trade secrets open.
Before we discuss what the Court of Appeal has ruled, it should be reminded that the EU Trade Secret Directive (No 2016/943), which has been implemented in Belgian law, foresees in certain provisional and precautionary measures for trade secret holders against alleged infringers. These include the provisional cessation of the use of disclosure of a trade secret, the prohibition of the production of infringing goods the seizure of suspected infringing goods.
Access to such measures presupposes that trade secret misappropriation is proven. And such proof is typically hard to obtain. As said, specific measures to gather evidence of an alleged trade secret infringement, are not provided for in the Trade Secret Directive and have thus not been implemented into Belgian law. So on several occasions trade secrets holders have made creative use of the existing general rules on ex parte requests for provisional judicial relief. According to article 584 of the Belgian Judicial Code (Jud.C.) a judge can, in cases that it deems urgent, provisionally impose measures at the unilateral request of a party if an absolute necessity is established. Parties alleging that their trade secrets were infringed upon, have been invoking this provision to obtain ex parte evidentiary measures, arguing that the risk that such evidence would be destroyed after an inter partes discussion is too high.
In the past, Belgian judges have been rather reluctant to accept such requests. In February 2019, the Antwerp Enterprises Court for example explicitly ruled that is not possible to impose evidence gathering measures similar to those available to IP right holders when the case only relates to an alleged trade secret infringement. The court reasoned that since the Belgian legislator did not foresee the possibility of such measures when implementing the Trade Secret Directive, the existing article 584 Jud.C. could not be used to expand the descriptive evidentiary measures to trade secrets.
Recently, however, the jurisprudence related to this topic seems to have been taken another direction. In the spring of 2020, the Brussels Enterprises Court had ordered a descriptive counterfeit seizure based on an alleged trade secret infringement on the basis of article 584 Jud.C. In appeal, on 11 March 2021, the Brussels Court of Appeal did not confirm this ruling, but nevertheless confirmed that article 584 Jud.C. can in theory be the legal basis for unilaterally securing evidence of trade secret infringement, provided that all the legal conditions of this article are met and the interests of the parties involved are balanced. Applied to the facts of the case, the Brussels Court of Appeal ruled that these conditions were not met.
Provided that this decision will be upheld, trade secret holders might finally have an effective legal tool at their disposal to fight trade secret infringements connected to the knowhow hub Belgium. Whether these infringements were committed in Belgium is less relevant.