How industry, law firms and the European Commission worked together on EU “trade secrets” legislation - a threat to consumers, journalists, whistleblowers, researchers and workers.
This report (pdf version) is based on the analysis of hundreds of documents, obtained
through an access to documents request, exchanged between the European
Commission's DG Internal Market and the main corporate lobby groups
involved in the development of the EU's draft legislation on so-called
Industry's main message throughout the process has been that trade
secret theft is a major threat to the EU economy that demands a
legislative initiative to improve and harmonise rules on the matter.
Industry's recommended approach for this was to define trade secrets as a
form of intellectual property (IP).
From the very beginning the Commission took a strong interest in the
idea and went on to collect the evidence it needed to demonstrate that
legal "fragmentation" and trade secret theft would, indeed, be a threat.
But it outsourced the research to law firms that have a structural
interest in the development of new legal protection tools for their
corporate clients. In the end, industry and the Commission acted
together, working hand in hand on the methodology of the very evidence
collection for the research, jointly organising a “Commission conference
on trade secrets”, even coordinating media outreach on one occasion.
Eventually, the Commission followed industry's demands almost
completely, stopping short of creating a new IP category for trade
secrets in the EU but granting the associated means of legal redress.
The collaboration between DG Internal Market and the lobby groups
seems to have extended to lobbying the other DGs, jointly preparing the
submission to the Commission's Impact Assessment Board, and lobbying the
two other EU legislators, the Council of Ministers (Member States) and
the European Parliament.
When asked, the Commission did not dispute much of the above and
failed to see how working for three years on a quasi-daily basis with
lobby groups could be a problem. Emails show the opposite is actually
true: the Commission, once the decision to initiate new legislation was
taken, actually needed industry lobby groups' help. The Commission for
example did pro-active outreach to business lobby groups to be sure that
as many companies as possible participated in the public consultation.
Non-industry groups were completely absent from the Commission's
drafting process until the public consultation, and no pro-active
outreach to them seems to have been undertaken by the Commission.
Three other important observations should be made about this correspondence:
- Reference was often made to the upcoming TTIP negotiations to
justify the action, as comparable legal action was being drafted in the
US, and direct lobbying of TTIP negotiators to get trade secrets
protected as IP under TTIP was undertaken.
- Lobbying is made easier by the lack of capacity on the public side
of the discussion. Between 2010 and June 2012, only one policy officer
and his head of unit were in charge of the technical development of the
file, and in June 2012 one other policy officer joined them. Other
levels of the administration also intervened but at the management
level. On the other side, industry sent in teams of consultants, lawyers
and executives, background legal research, field examples, and senior
academic contacts –all free of charge for the Commission.
- To the Commission's credit, there are at least two moments in the
correspondence where the head of unit objected to industry proposals
that went too far from a political independence point of view (a meeting
proposal from the fragrance industry to discuss a template draft
legislation, and angry remarks about suspicious-looking exchanges
between the law firm working for the Commission (Baker & McKenzie)
and lobby groups active on the file), but his staff never wrote anything
of the sort. On the contrary, there are several instances where they
actually facilitated the lobbying work of industry by introducing
various lobby groups and the consultants working for the Commission to
one another. Who doesn't appreciate competent free help for one's work?
Find the rest of the long report here