Trade Secret Protection
On June 8, 2016, the European Parliament approved the Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use or disclosure, ensuring progressive harmonization in the field of trade secrets and laying down common measures regarding the protection of trade secrets.
Since Companies invest in acquiring, developing and applying know-how and information, such investments have an impact on their competitiveness and innovative performance in the market and therefore on the motivation to continue to innovate. However, there is great diversity of systems and definitions in member states regarding the treatment and protection of trade secrets. The new Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use or disclosure (the Directive), therefore aims at ensuring the smooth functioning of the internal market. The Directive shall bring legal clarity and help increase interest in the development of research and innovation activities. In accordance with the new legal framework, EU member states will have to ensure that trade secret holders are entitled to apply for measures, procedures and remedies provided for in the Directive in order to prevent or obtain redress for the unlawful acquisition, use or disclosure of their trade secrets. While the directive provides for measures preventing the disclosure of information to protect the confidentiality of trade secrets, the new measures fully ensure that investigative journalism may be pursued without any new limitations. The directive will not impose any restrictions on workers in their employment contracts where national law will continue to apply. There will be no limitation to an employee´s use of experience and skills honestly acquired in the normal course of their employment. Persons acting in good faith who reveal trade secrets for the purpose of protecting the general public interest, commonly known as ‘whistle-blowers’, will also enjoy appropriate protection. According to the Directive, an application for measures and remedies must be dismissed where the alleged acquisition, use or disclosure of a trade secret was carried out in the act of exercising the right to freedom of expression and information, revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest (whistle-blowing); in disclosure by workers to their representatives as part of their legitimate exercising of their functions in accordance with EU or national law, provided that such disclosure was necessary for such exercise; and for the purpose of protecting a legitimate interest recognized by EU or national law.
The Directive was published in the EU Official Journal on June 15, 2016. It will enter into force 20 days after its publication and member states will have a maximum of two years to incorporate the new provisions into domestic law.
New Public Procurement Act
The National Council of the Slovak Republic approved the all new Public Procurement Act replacing the existing regulation, which had been amended several times. The new Act is based on newly adopted directives of the European Union that comprehensively regulate the field of public procurement and respond to the trend of pervasive electronisation in public administration.
On January 15, 2014, new European Union directives governing public procurement were approved by the European Parliament with a 24-month transposition period for member states (36 months for central procurement and 54 months for obligatory electronisation). The Slovak Republic fulfilled its transposition duty by the new Act effective from April 18, 2016. The main objectives of the new Act are to promote efficiency and generally speed up the procurement through mandatory electronisation, better flexibility, reduction of administrative difficulties, better access of SMEs to the market and the introduction of greater legal certainty. The new Act introduces new institutes such as a new procurement procedure called innovative partnership, in-house exceptions, direct payments to sub-contractors, joint procurement of contracting authorities, the introduction of legal grounds for withdrawal from contracts and the European Single Procurement Document for the manifestation of the fulfillment of conditions set for candidates during procurement.
The new Regulation shall ensure that citizens have more control over their private information. It will introduce the right to be “forgotten” and thus the deletion of personal data by the service provider, conditions for the expression of consent to the processing of private data which must be provided and expressed clearly and which must allow the concerned person to revoke such consent, the right to transfer personal data to another service provider, and the right to know about the violation of protected personal data and privacy protection policies which must be presented to the customer in a clear and understandable form. The new Regulation also strengthens the enforcement of rules and sanctions which may reach up to 4% of the total global annual turnover of the relevant company for the previous fiscal year.
The new Directive on data transfers for police and judicial use concerns the cross-border transfer of data within the EU and lays down minimum standards for the processing and exchange of data by police and judicial authorities in each member state.
The Regulation will enter into force 20 days after its publication in the EU Official Journal. Its provisions will be directly applicable in all member states two years after this date. Member states will have two years to transpose the provisions of the Directive into national law.
Investment funds with variable registered capital
The National Council of the Slovak Republic approved an amendment of the Collective Investment Act and Commercial Code introducing investment fund organized as an investment company with variable registered capital.
The amendment introduces new type of investment fund – SICAV (from French: Société d’Investissement à Capital Variable). The new type of investment fund will be organized as a separate legal entity in new legal form of a joint stock company with variable registered capital and will be established independently from a management company. The amendment requires SICAV to register only the minimum capital with the commercial register (at least EUR 125.000) and not the actual capital of the fund raised by shares and thus providing flexibility in issuing new shares. The amendment is effective from March 18, 2016.
Simple joint stock company & shareholders’ agreements
The National Council of the Slovak Republic approved an amendment of the Commercial Code introducing simple joint stock company and finally officially introduces widely-used shareholders’ agreements into the Slovak legislation including legislation about tag-along, drag-along or shootout rights between shareholders.
The amendment introduces new type of company – simple joint stock company (j.s.a.). This type of company will combine certain features of limited liability company and joint stock company. The capital of j.s.a. will be divided into a number of shares with a certain nominal value with the minimum capital at least EUR 1. j.s.a. will be liable for its obligation with all its assets. Combination of features of other company types will create suitable solution particularly for investments into startups. The amendment also expressly introduces possibility for shareholders to enter into shareholders’ agreements that have been until now widely-used without specific legislation in place. The amendment also specifically introduces known mechanisms of tag-along, drag-along or shootout rights. Such rights will be for the first time expressly stated in Commercial code and, moreover, the Amendment establishes possibility to register rights in question in public registers specifically conducted for such purpose by Central Securities Depositary of the Slovak Republic. The amendment will be effective from January 1, 2017.
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Criminal liability of legal entities
The Government of the Slovak Republic approved a new bill proposal introducing direct criminal liability of legal entities into Slovak law.
The proposal significantly changes the current legal doctrine which recognizes only indirect criminal liability of legal entities. The bill contains an exhaustive list of criminal offences which might be committed by a legal entity, e.g. human trafficking, tax evasion, forgery, or unauthorized handling of waste. The crime would be committed by the legal entity if it were committed by its statutory body or an employee on behalf or in the interest of the legal entity. The criminally liable legal entity might be sentenced to a monetary fine, forfeiture of property, ban on business activities, or even to be winded up.
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Amendment of the Bankruptcy and Restructuring Act
New amendment of the Bankruptcy and Restructuring Act has been adopted introducing essential changes to the restructuring process.
The amendment which has partially come into force as of 29 April 2015 significantly changed the restructuring process in the Slovak Republic. The amendment derogated the “principle of clean slate” which meant the obligations and debts not satisfied in the restructuring process ceased to exist upon its conclusion. Under the new wording of the Bankruptcy and Restructuring Act the obligations not satisfied in the restructuring process survive to certain extend the restructuring process and might be enforced after its conclusion.
Amendment of the Consumer Loans Act – licensing
New amendment of the Consumer Loans Act has been adopted with significant changes to the consumer loans providers. read more
The amendment has come into force as of 1 April 2015 and introduced a requirement of obtaining a license in order to provide consumer loans. Under the previous regime the registration of the consumer loan provider with the National Bank of Slovakia was sufficient. The amendment requires the consumer loans providers to apply for a license and prescribes strict conditions which must be met in order to obtain such license. Requirement to obtain a license applies to all consumer loans providers including the previously registered providers. If you are interested in a more detailed analysis and overview of the amendment and its impact on consumer loans providers, please contact us.
Forbes Business Leaders Club: Business Acquisitions – 10 December 2014
Martin Kluch, partner of our firm will be one of the key speakers at the annual Forbes Business Leades Club with topic Business Acquisitions. read more