Trade secrets are protected directly by law, and their violation constitutes unfair competition even without an agreement. An NDA still makes sense: it precisely defines confidentiality, duration and sanctions, making proof and enforcement considerably easier. A clear definition of confidential information, the confidentiality period and a written contractual penalty are central.
Does the law protect me without an NDA?
Trade secrets are protected directly by the Commercial Code. They comprise commercial, production or technical information that has value, is not readily available, is intended by its owner to remain secret, and is actually kept secret through the owner’s measures (Section 17). Violation is expressly classified as unfair competition (Section 44(2)(g)), against which remedies exist without any contract: cessation, removal of consequences, damages, appropriate satisfaction and restitution of unjust enrichment.
The difficulty is that statutory protection has strict requirements, particularly demonstrable secrecy measures. Not every sensitive piece of information qualifies, and proving that a particular item was a trade secret may be difficult in a dispute.
What does an NDA add?
A non-disclosure agreement helps here. Beyond statutory protection, it:
- Extends protection to confidential information that may not meet the strict trade-secret requirements.
- Precisely defines what is confidential and excluded, such as public information or independently developed material.
- Sets the duration of the duty, including after cooperation ends.
- Specifies the permitted purpose, who may access information and duties to return or destroy materials.
The contractual penalty gives an NDA strength
A contractual penalty is often the most effective element. It must be agreed in writing, specifying its amount or calculation method. It is then payable even if the breach causes no damage (Section 544 of the Civil Code). Compensation exceeding the penalty is available only if expressly agreed (Section 545(2)). The penalty should also be proportionate: a ruinous sanction may be reduced in litigation.
When drafting, we also consider whether the agreement should be unilateral or mutual, how it relates to the main contract and what restrictions apply to employees. Our non-disclosure agreement service prepares NDAs and confidentiality clauses, while software development confidentiality forms part of our IT development agreement service. If a leak has already occurred, we represent you in intellectual property disputes.
This answer provides general information on the law as at 21 July 2026. It does not constitute legal services or replace an assessment of an individual case. The details of your situation may differ. Book a consultation to discuss them.
