The Italian rules protecting trade secrets should be well considered when recruiting new staff.
In particular, art. 623 of the Italian Criminal Code (ICC), as amended according to EU Directive 2016/943 on the protection of trade secrets, provides the following (in summary):
“Any person who, having acquired, by reason of his profession, trade secrets or information intended to remain secret, discloses or uses them for his own or another person’s profit, shall be punished with imprisonment of up to two years. The same punishment shall apply to any person who, having wrongfully acquired trade secrets, discloses or uses them for his own or another person’s profit. If the act relating to trade secrets is committed by means of any computerized instrument, the punishment shall be increased”.
These provisions are very important even when conducting interviews with a view to the possible recruitment of a manager, or a senior employee, who at the time of the interview is still active as an employee of a competitor.
To avoid any type of interference with art. 623 ICC the company organizing the interview must therefore, as a precautionary measure, implement preventive tools, the main one consisting of inserting, within the advertisement of the search and then in a special form to be submitted to the candidates, an express warning reminding them to respect the trade secrets of the current or prior employer.
Both the advertisement and the form must clearly specify that the selection is based merely on abilities, expertise, general knowledge and experience of the candidates, not because of any confidential, proprietary or trade secret information they may possess.
The candidates must also be expressly invited not disclose any such information and, if they are asked a question that cannot be answered without disclosure of any trade secret, the candidates must be invited to decline to answer such question.
This article was prepared by Renato D’Andrea, Of Counsel at our Italian member firm Lexellent. For more information on the topic or for employment-related questions, please reach out to Renato or to our representative Giulietta Bergamaschi.
