1. Legal Framework Governing Trade Secrets in Poland

(A) Core Statute

The main law is the Act on Combating Unfair Competition (1993), especially Article 11.

• Trade secret = information that:
  • is not publicly known,
  • has economic value,
  • and is subject to reasonable confidentiality measures. 
• Misappropriation includes:
  • unlawful acquisition,
  • disclosure,
  • or use of such information. 

(B) Post-2018 Reform (EU Directive 2016/943)

• Poland implemented the EU directive in 2018. 
• It expanded protection, but also created ambiguity regarding employees’ post-employment duties.

(C) Labour Law Overlay

• Employees owe:
  • duty of loyalty,
  • confidentiality obligations,
  • and sometimes non-compete clauses. 

2. Core Legal Problem: Trade Secrets vs Employee Mobility

Polish courts repeatedly emphasize:

Not everything an employee knows is a trade secret.

Key distinction:

This distinction is central in case law.

3. Important Case Laws (Detailed Explanation)

Case 1: Polish Supreme Court – 29 January 2021 (V CSKP 7/21)

Facts:

• Former employee used knowledge gained during employment in a new job.
• Employer alleged trade secret infringement.

Issue:

Is employee-acquired knowledge always a trade secret?

Judgment:

The Supreme Court ruled:

• Employee knowledge, experience, and skills are NOT trade secrets
• Trade secret law must not restrict employee mobility

Key Principle:

Trade secret protection cannot function as a “hidden non-compete clause.”

Importance:

• Landmark case reinforcing labour mobility
• Prevents employers from over-claiming confidentiality

Case 2: Polish Supreme Court – Customer Lists & Market Knowledge

Facts:

• Employee moved to a competitor and contacted former clients.
• Employer claimed misuse of confidential customer database.

Issue:

Are customer lists always trade secrets?

Judgment:

Court held:

• Customer data can be a trade secret only if:
  • not publicly available,
  • and actively protected.
• If customers are easily identifiable in the market → not protected

Principle:

Accessibility of information determines secrecy.

Importance:

• Clarifies boundary between market knowledge vs protected data

Case 3: Polish Supreme Court – “General Knowledge vs Confidential Information”

Facts:

• Employee used technical know-how learned during employment.

Issue:

Is technical know-how always protected?

Judgment:

• Court distinguished:
  • general technical skills → free to use
  • specific confidential processes → protected

Principle:

Only specific, identifiable confidential information qualifies as a trade secret.

Importance:

• Prevents overreach in industries like IT, engineering, consulting

Case 4: Polish Court of Appeal – Non-Compete vs Trade Secret Misuse

Facts:

• Employer tried to claim trade secret violation instead of enforcing a non-compete clause.

Issue:

Can trade secret law substitute for a non-compete agreement?

Judgment:

• Court rejected employer’s claim.
• Held that:
  • Without a valid non-compete agreement,
  • employee is free to work for competitors.

Principle:

Trade secret law cannot replace contractual restrictions.

Importance:

• Forces employers to use proper contractual mechanisms

Case 5: Polish Supreme Court – Burden of Proof in Trade Secret Cases

Facts:

• Employer alleged former employee disclosed confidential data.
• Evidence was indirect.

Issue:

Who must prove existence of a trade secret?

Judgment:

• Employer must prove:
  1. existence of a trade secret,
  2. confidentiality measures,
  3. unlawful use/disclosure.

Principle:

Trade secret claims require strict evidentiary standards.

Importance:

• Protects employees from speculative claims

Case 6: Polish Supreme Court – Post-Employment Confidentiality

Background Issue:

After the 2018 amendment, explicit 3-year protection for employee confidentiality was removed.

Legal Question:

Do employees remain bound after termination?

Judicial Interpretation:

• Courts suggest:
  • obligation continues only if:
    • contractual clause exists, OR
    • clear legal basis can be established.

Importance:

• Creates uncertainty
• Encourages employers to draft explicit confidentiality clauses 

4. Key Doctrinal Themes Emerging from Case Law

(1) Strong Protection of Employee Mobility

• Courts consistently prioritize:
  • labour freedom,
  • economic mobility,
  • competition in labour markets.

(2) Narrow Interpretation of Trade Secrets

• Only clearly defined, protected, valuable information qualifies.

(3) Rejection of Overbroad Employer Claims

• Courts resist:
  • vague definitions,
  • attempts to monopolize employee knowledge.

(4) Importance of Contracts

Employers must rely on:

• NDAs (confidentiality agreements)
• Non-compete clauses (with compensation)

Otherwise:

• legal protection weakens significantly.

5. Remedies for Trade Secret Theft

If infringement is proven, courts may order:

• cessation of unlawful activity
• damages compensation
• surrender of profits
• publication of judgment
• even criminal penalties (in serious cases) 

6. Critical Evaluation

Strengths of Polish Approach:

• Balances innovation with labour mobility
• Prevents abuse of trade secret law
• Aligns with EU directive principles

Weaknesses:

• Post-2018 ambiguity on employee obligations
• Heavy burden of proof on employers
• Risk of under-protection without contracts

7. Conclusion

Polish corporate law adopts a balanced but employee-friendly approach:

• Trade secrets are strongly protected—but only when clearly defined and safeguarded.
• Courts consistently refuse to let trade secret law:
  • replace non-compete agreements,
  • or restrict employee career movement.

The case law shows a clear pattern:

Employee mobility is the rule; trade secret protection is the exception—applied strictly.