Knowledge, experience and skills acquired by the employee vs trade secret

In the course of employment with a given employer, an employee has access to a range of information that is trade secret. At the same time, he acquires knowledge and experience that can be used in his further professional life. Distinguishing the so-called employee know-how from information being trade secret often causes difficulties.

In the judgment of 8 January 2019, case no II CSK 736/18, the Supreme Court continues its previous the jurisprudence, stating that knowledge, experience and skills acquired by an employee during his employment do not enjoy the statutory protection for the benefit of the enterprise.

However, due to the principle of freedom of contracts, it is possible for an employer and employee to enter into an agreement containing a clause limiting the use of that knowledge for competitive purposes including the employment relationship for the entity carrying out the same business activity. According to art 101¹ and 102¹ of the Labour Code, it is possible to contractually regulate the non-compete clause both during the employment relationship as well as after it has been terminated.

In the above-mentioned judgment, the Supreme Court refers to its earlier rulings relating to analogues problems.

According to the judgment of 3 October 2000, case no I CKN 304/00, the use of information by an employee in his own business activity towards which the entrepreneur did not take necessary actions to keep it confidential, should be treated in the terms of universal but specialist knowledge with regard to which the entrepreneur has no statutory claims. At the same time, the Supreme Court stated that information not disclosed to the public loses legal protection when every entrepreneur (competitor) may find out about it by simple or legal means, such as, e.g. when one information is presented in specialist magazines or when the goods displayed for public view allow every specialist to learn the production method applied.

In the judgment of 2 September 2001, case no I CKN 1159/00, the Supreme Court stated that the content of art. 11 sec.1 and 4 of the Act on combating unfair competition, does not allow generally known information or information in which given entity is interested in due to its business activity or occupation and may find out about it in ordinary and legitimate way, to be covered by secrecy.

The trade secret pursuant to art. 11 of the Act on combating unfair competition covers not only knowledge, experience and skills acquired by the employee during employment but all information about the enterprise that is widely known and easily accessible to a wider group of recipients and towards which the entrepreneur has not taken necessary action to keep confidential.

• judgment of the Supreme Court of 8 January 2019, II CSK 736/18