Protection of Trade Secrets in Serbia
The Law on the Protection of Business Secrets was adopted
At its session held on 27 May 2021, the National Assembly of the Republic of Serbia adopted the Law on the Protection of Business Secrets (the “Law“). The Law was published in “Official Gazette of the Republic of Serbia” No. 53/2021 of 28 May 2021 and entered into force on 5 June 2021, except for the provisions of Article 17, item 1 in the part which refers to the application of the regulations of the European Union which is applied from the day of accession of the Republic of Serbia to the European Union.
The constitutional basis for the enactment of this Law is contained in the provision of Article 97, paragraph 1, item 7 of the Constitution of the Republic of Serbia, on the basis of which the Republic of Serbia regulates and ensures property and obligation relations and protection of all forms of property.
What does the Law provide for?
This Law regulates the legal protection of business secrets from illegal acquisition, use and disclosure.
Information that meets the following conditions is considered a business secret:
- are secret because they are not, as a whole or in terms of the structure and set of their constituent parts, generally known or easily accessible to persons who normally come into contact with this type of information in the course of their activities;
- have commercial value because they represent a secret;
- the person lawfully controlling them has taken reasonable steps in the circumstances to preserve their secrecy.
The Law stipulates in which cases the acquisition, use and disclosure of a trade secret is legal, and when it is illegal.
The holder of a trade secret, as a natural or legal person under whose legal control a business secret is, may file a lawsuit for violation of a business secret in the event of its violation (“Lawsuit“).
The Lawsuit may require:
- determining the violation;
- termination of the violation, or, as the case may be, a ban on the use or disclosure of a trade secret;
- prohibition of production, offering, placing on the market or use of infringing goods, or prohibition of import, export or storage of infringing goods for the purposes of production, offering, placing on the market or use of goods;
- determining appropriate measures relating to the infringing goods, which include the withdrawal of such goods from the market, the removal from the goods of properties which constitute infringing trade secrets or the destruction of infringing goods, or if justified, its withdrawal from the market, provided that the withdrawal of the goods does not jeopardize the protection of the business secret to which the action relates;
- destruction in whole or in part of documents, objects, materials, substances or electronic documents that contain a trade secret or that themselves constitute a trade secret or, if appropriate, hand over these documents, objects, materials, substances or electronic documents in whole or in part to the prosecutor.
The Law stipulates that the licensee is also actively legitimized to file a lawsuit, if he is authorized to do so on the basis of a contract or law.
The Lawsuit may be filed within a subjective period of one year from the day when the plaintiff learned of the violation and the person suspected of violating a business secret, and no later than five years from the date of the violation or from the last violation if violation is performed continuously (objective deadline).
Given that the unlawful disclosure of a trade secret may have a very negative impact on the economic and other interests of the holder of the trade secret, the court may prescribe interim measures if the holder of the trade secret makes it probable that it has occurred, or will be illegally obtained, used or disclosure of trade secrets.
At the end of the Law are penal provisions for economic offenses and misdemeanours.
A legal entity that illegally acquires, uses or discloses a business secret in accordance with the Law will be fined in the amount of RSD 100.000 to 3.000.000 for an economic crime. For the same economic crime, the responsible person in the legal entity will be fined in the amount of RSD 50.000 to 200.000.
For the same actions, the entrepreneur will be fined in the amount of RSD 50.000 to 500.000. A fine in the amount of RSD 20.000 to 150.000 will be imposed on a natural person for a misdemeanour.
The objects of committing an economic crime or misdemeanour will be confiscated and destroyed, and the objects that were used to commit an economic crime or misdemeanour will be confiscated.
On the day this Law enters into force, the Law on the Protection of Business Secrets (“Official Gazette of the RS”, No. 72/11) shall cease to be valid.
Bearing in mind that in the conditions of modern business and cross-border trade, the risks of revealing business secrets are more and more pronounced, the meaning of this Law lies in the fact that every act of unauthorized disclosure of information is legally sanctioned.