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Protecting Trade Secrets and Know-How in Romanian Operations of Foreign Groups

This article explains how foreign corporate groups can protect trade secrets and know-how in their Romanian operations. It covers the EU and Romanian legal framework (Directive 2016/943, GEO 25/2019, unfair competition and labour law), internal trade secrets governance, NDAs and non-compete clauses for employees and contractors, as well as enforcement strategies before Romanian courts, including interim measures, damages and coordination with unfair competition and criminal proceedings.

For foreign corporate groups, Romania is often an operational hub: shared service centres, manufacturing plants, software development teams and local sales entities all process highly sensitive know-how and confidential business information. Protecting that information under Romanian law is therefore not a purely local compliance exercise, but a strategic component of the group’s global trade secret programme.

At EU level, Directive (EU) 2016/943 harmonises the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure across Member States. Romania has implemented this framework primarily through Government Emergency Ordinance no. 25/2019 on the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure (GEO 25/2019), later approved and amended by Law no. 230/2024. This regime sits alongside the long-standing Law no. 11/1991 on the fight against unfair competition and general civil and labour law rules on confidentiality, loyalty and unfair competition by employees.

This article looks at how foreign groups can structure their Romanian operations to meet the “reasonable steps” standard required for trade secret protection, how to design and localise internal policies, NDAs and non-competes, and what to expect in terms of enforcement and interim measures before Romanian courts.

Legal Framework for Trade Secret Protection

1. EU baseline: Directive (EU) 2016/943

Directive (EU) 2016/943 defines a trade secret as information which is secret (not generally known or readily accessible), has commercial value because it is secret, and has been subject to reasonable steps to keep it secret by the person lawfully in control of it. The Directive harmonises national laws on unlawful acquisition, use and disclosure of trade secrets, the available civil remedies (injunctions, damages, corrective measures) and safeguards such as protection of trade secrets during court proceedings.

Importantly for multinational groups, the Directive is technology-neutral and industry-neutral. It covers technical know-how (formulas, processes, source code, manufacturing parameters) and business information (customer lists, pricing policies, commercial strategies), provided the three cumulative criteria are met.

2. Romanian transposition: GEO 25/2019 and Law 230/2024

Romania transposed Directive 2016/943 through Government Emergency Ordinance no. 25/2019, later approved (with amendments) by Law no. 230/2024. GEO 25/2019 expressly states that it regulates protection against unlawful acquisition, use and disclosure of trade secrets and introduces a dedicated set of civil law remedies and procedural tools.

According to specialist commentary and guidance, GEO 25/2019 is the main act implementing the Trade Secrets Directive in Romania, complemented by Law no. 11/1991 on unfair competition and other sectoral rules. A number of doctrinal analyses emphasise that the Ordinance closely mirrors the Directive’s structure (definitions, lawful and unlawful acts, exceptions, measures, procedures and remedies).

3. Definition of “secret comercial” in Romanian law

Article 2 of GEO 25/2019 defines “secret comercial” in terms that track the Directive: the information must (i) be secret, in the sense that it is not generally known or easily accessible to persons within the circles that normally deal with that kind of information, (ii) have actual or potential commercial value because it is secret, and (iii) be subject to reasonable steps, under the circumstances, by the person lawfully in control of the information, to keep it secret.

This definition is deliberately broad. For a typical Romanian subsidiary of a foreign group, trade secrets will commonly include process and product know-how transferred from the group (manufacturing recipes, CAD files, technical manuals), proprietary software and algorithms, internal pricing models and discount matrices, business development strategies, lists of strategic customers and suppliers, and internal risk models, provided the group and the local entity can prove that they have actively treated these as confidential.

4. Lawful and unlawful acts, whistleblowing and other exceptions

In line with the Directive, GEO 25/2019 distinguishes between lawful and unlawful acquisition, use and disclosure of trade secrets. Lawful acts include independent discovery or creation, reverse engineering of a lawfully acquired product (unless contractually prohibited) and any other practice that is in conformity with honest commercial practices.

Acquisition of a trade secret without the consent of the holder is unlawful when it results, for example, from unauthorised access, copying or appropriation of documents, materials or electronic files containing the trade secret, from theft, bribery, deception or breach of a duty to maintain secrecy. Use or disclosure is unlawful when it violates an NDA or other confidentiality obligation or arises from a prior unlawful acquisition.

GEO 25/2019 also includes express exceptions, again reflecting the Directive: disclosure for the exercise of freedom of expression and information (including media freedom), whistleblowing in the public interest (revealing misconduct or illegal activity), disclosure by employees to their representatives for legitimate purposes, or other situations where a legitimate interest recognised by EU or national law justifies the conduct. From a group compliance perspective, this means internal whistleblowing systems and investigations must be calibrated so that legitimate disclosures remain protected.

5. Relationship with unfair competition law

Law no. 11/1991 on the fight against unfair competition predates the Trade Secrets Directive but remains relevant. It prohibits practices contrary to honest commercial usage, including certain forms of misappropriation or disclosure of business secrets by employees or third parties, and allows administrative sanctions and other measures. After the adoption of GEO 25/2019, unfair competition rules and the trade secrets regime coexist: a misappropriation of trade secrets can amount both to a breach of GEO 25/2019 and to an act of unfair competition under Law 11/1991, giving the claimant multiple avenues (civil, administrative and, in some cases, criminal) for response.

6. Employment law and duties of loyalty and confidentiality

The Romanian Labour Code (Law no. 53/2003) recognises general duties of good faith and loyalty in employment relationships and allows pre-contractual confidentiality agreements and confidentiality clauses in individual employment contracts. The Code expressly mentions that, prior to signing an employment contract, the parties may agree on a confidentiality agreement covering information obtained during negotiations, and that the contract itself may contain confidentiality clauses. Doctrinal and practitioner commentary underline that employees are required to protect trade secrets both during and, to a certain extent, after employment, particularly where confidentiality or non-compete clauses exist.

For foreign groups, this means that global codes of conduct and confidentiality policies must be properly reflected in Romanian employment contracts and internal regulations, rather than only existing at group level. Otherwise, Romanian courts may treat them as internal guidelines without direct contractual force.

7. The “reasonable steps” requirement in practice

Both the Directive and GEO 25/2019 require “reasonable steps” to keep information secret. Romanian doctrinal analysis of GEO 25/2019 stresses that the burden of proof is on the trade secret holder to demonstrate such steps, and that purely formal or ex post measures are unlikely to suffice. Modern practice guides emphasise that businesses must implement a combination of legal, organisational, technical and physical measures to satisfy this standard.

For a Romanian operation of a foreign group, “reasonable steps” will typically include: clear identification and labelling of confidential information; role-based access control; secure IT systems with rights management; robust NDAs and confidentiality clauses; training and awareness; clean-desk and document-handling rules; and well-documented exit processes. These elements are explored in more detail in the next section.

Internal Policies, NDAs and Non-Competes

1. Mapping and classifying trade secrets within Romanian operations

Any effective trade secret programme starts with knowing what you need to protect. For foreign groups, this requires a deliberate mapping exercise across the Romanian entities: what know-how and confidential information are being used or created locally; which assets originate from the group and which are specific to the Romanian business; and where these assets are stored and processed. Recent practice-oriented materials on trade secrets in Romania emphasise the need for such an inventory as a precondition for selecting appropriate legal and technical safeguards.

In practical terms, groups often classify trade secrets and sensitive information into tiers (for example: public, internal, confidential, highly confidential / trade secret) and maintain a “trade secrets register” that describes each major secret, its owner within the company, the business units using it, and the measures applied. This register should cover not only technical know-how but also commercial information (pricing models, key customer strategies) that meets the legal criteria.

2. Internal trade secret policy and procedures

Romanian law does not prescribe a specific form of trade secret policy, but the “reasonable steps” standard and the case law and doctrine evolving around GEO 25/2019 make a strong internal framework indispensable. A well-designed policy for Romanian operations of a foreign group should typically address at least the following elements:

  • Definition and examples of trade secrets and confidential information, aligned with the group policy but referencing the Romanian legal definition from GEO 25/2019.
  • Classification rules and labelling practices for documents, files and systems.
  • Access-control principles (need-to-know, approval workflows, separation of duties).
  • Rules on use of personal devices, remote work and cloud services in relation to trade secrets.
  • Onboarding and training obligations, including mandatory training modules for employees in Romania.
  • Reporting channels for suspected leaks or misappropriation, dovetailed with whistleblowing mechanisms.
  • Exit procedures: revocation of access rights, return of devices and documents, exit interviews and reminders of ongoing confidentiality and non-compete obligations.

Doctrinal analyses of Article 9 GEO 25/2019, which deals with protecting trade secrets during judicial proceedings, underline that courts will look at how systematically the holder has treated the information as confidential (for example, by limiting access, marking documents, having internal rules and training), not only at the existence of NDAs.

3. NDAs and confidentiality clauses with employees

Under the Labour Code, the employment relationship must be in writing, and the employer has extensive pre-contractual information obligations. It is expressly recognised that a separate confidentiality agreement can be concluded prior to signing the employment contract, and that the individual employment contract may contain a confidentiality clause. Specialist employment law commentary notes that a confidentiality clause typically obliges the employee not to disclose or use outside the company any confidential information obtained in the course of employment, both during and after the contract, with potential disciplinary and civil liability for breaches.

For a foreign group, the key is to ensure that global confidentiality templates are adapted to Romanian law and practice. Points to consider include:

  • Explicitly referencing the categories of information that qualify as trade secrets in the Romanian legal sense, not only generic “confidential information”.
  • Clarifying the duration of post-employment confidentiality (often indefinite for trade secrets, but limited for other confidential information).
  • Aligning the clause with GEO 25/2019 exceptions, for instance by acknowledging legitimate whistleblowing to authorities.
  • Ensuring that disciplinary procedures and internal regulations (regulament intern) treat serious breaches of confidentiality as gross misconduct, allowing dismissal where appropriate, in line with the Labour Code.

4. NDAs with contractors, suppliers and group entities

For non-employees (consultants, independent contractors, service providers, joint-venture partners), NDAs are governed primarily by the Civil Code and general contract law principles. Specialist guides on NDAs in Romania emphasise the importance of precise identification of confidential information, clear purpose limitation, duration and governing law / dispute resolution clauses.

For intra-group relationships, global NDAs are common, but where trade secrets are used or generated in Romania, there is value in expressly referring to GEO 25/2019 and Romanian jurisdiction, at least as an option. This is particularly relevant when the Romanian entity is the claimant or where evidence and infringing activity are located in Romania, making Romanian courts and interim measures practically attractive.

An often overlooked aspect is the NDA architecture with local suppliers (for example, maintenance providers with access to production lines, IT service providers, HR outsourcers). If a supplier’s employee leaks a trade secret, the trade secret holder’s position will be significantly stronger if the supplier is under a robust NDA governed by Romanian law and if the supplier’s contracts with its own employees contain aligned confidentiality obligations.

5. Non-compete clauses for employees

Romanian labour law allows post-contractual non-compete clauses, but subject to strict substantive conditions and a maximum duration of two years after termination. Articles 21–24 of the Labour Code require that a valid non-compete clause:

  • Be agreed in writing as part of the individual employment contract or an addendum.
  • Specify the activities the employee is prohibited from performing after termination, the third parties for whom such activities are prohibited, the geographical area where the restriction applies and the duration (no more than two years).
  • Provide for a monthly non-compete indemnity payable by the employer throughout the non-compete period, of at least 50% of the employee’s average gross salary over the last six months of employment (or over the entire period if shorter).

Constitutional Court and practice materials emphasise that the non-compete clause cannot amount to a de facto prohibition on exercising the employee’s profession; the restriction must be proportionate and limited to what is necessary to protect legitimate business interests. Romanian courts have the power, at the employee’s request or upon referral by the Labour Inspectorate, to reduce the effects of a non-compete clause that is excessive in scope, area or duration.

From a trade secret perspective, non-compete clauses are not a substitute for confidentiality, but they can be a powerful complementary tool to prevent key employees from immediately joining direct competitors or setting up competing businesses while having fresh access to critical know-how. However, GEO 25/2019 explicitly states that its provisions do not constitute a legal basis for limiting employee mobility, so non-competes must always comply with labour law standards and cannot be justified solely by reference to trade secret protection.

6. Non-solicitation and other restrictive covenants

In addition to non-compete clauses, Romanian practice often uses non-solicitation and non-dealing clauses (for customers, suppliers or employees). These are not specifically regulated in the Labour Code, so their validity is assessed under general contract and labour law principles, with particular focus on proportionality and respect for freedom of work and competition law. When carefully drafted (limited in time, territory and scope), such clauses can be an effective way to protect trade secrets relating to customer relationships and strategic partnerships, especially for senior staff.

7. Aligning group-level documentation with Romanian law

For foreign groups, one of the most frequent weaknesses in Romanian trade secret disputes is misalignment between global templates and local legal realities. Examples include non-compete clauses that exceed the two-year maximum, lack of any non-compete indemnity, NDAs that ignore GEO 25/2019 exceptions or whistleblower protections, or group policies that are never formally incorporated into Romanian employment contracts or internal regulations.

Best practice is to conduct a local “gap analysis” that compares the group’s global trade secret, confidentiality and non-compete standards with Romanian statutory requirements and case law, then localise key documents (employment contracts, NDAs, supplier contracts, internal policies, employee handbooks) accordingly. Recent guides on trade secrets and restrictive covenants in Romania stress the importance of this local adaptation, especially for multinational employers.

Enforcement in Court and Interim Measures

1. Who can sue and before which courts?

GEO 25/2019 grants the holder of a trade secret the right to bring civil actions against any person who has unlawfully acquired, used or disclosed that trade secret. In practice, jurisdiction will typically lie with the competent civil or commercial sections of the Romanian tribunals or courts of appeal, depending on the value and nature of the claim. Where the dispute arises out of an employment relationship (for example, an employee misusing trade secrets), the labour courts may also be involved, depending on how the claims are framed (disciplinary, damages, injunctions).

Foreign groups should also consider contractual dispute resolution clauses: many cross-border NDAs and technology transfer agreements include arbitration or foreign jurisdiction clauses. While these may be enforceable, it is important to ensure that they do not prejudice the possibility of seeking urgent interim measures before Romanian courts when the infringing activity and evidence are located in Romania.

2. Confidentiality during judicial proceedings

A key concern in trade secret litigation is the risk that court proceedings themselves may lead to further disclosure of the trade secrets. Article 9 GEO 25/2019 addresses this by requiring courts to ensure the confidentiality of trade secrets during and after proceedings, at least to the extent that doing so is compatible with the right to a fair trial.

The court may, for example, restrict access to hearings, limit access to documents containing trade secrets to a small number of authorised individuals, or order that certain passages be redacted in publicly available judgments. Doctrinal analyses of GEO 25/2019 note that while the mechanism is inspired by the Directive, its practical application in Romania is still developing, and courts must balance transparency, defence rights and effective trade secret protection.

3. Provisional and protective measures (interim relief)

Articles 10 and 11 GEO 25/2019 regulate provisional and protective measures that Romanian courts can order to prevent or stop trade secret misappropriation, closely following Article 10 and Article 11 of the Directive. At the request of the trade secret holder, the court may, among others:

  • Order the cessation or prohibition of the use or disclosure of the trade secret.
  • Prohibit the production, offering, placing on the market or use of suspected infringing goods, or their import, export or storage for those purposes.
  • Order the seizure or delivery of suspected infringing goods, including materials and documents suspected of containing the trade secret or derived from it.

Romanian doctrinal work dedicated to GEO 25/2019 highlights that these measures can be obtained rapidly, including before a full action on the merits is heard, and that the conditions mirror general interim measures: prima facie case, urgency and risk of irreparable harm or serious damage.

There is an ongoing debate in Romanian scholarship and practice about the relationship between these trade secret-specific measures and the general regime of interim measures under the Civil Procedure Code and Directive 2004/48/EC on the enforcement of intellectual property rights. Some authors argue that, by virtue of the principle specialia generalibus derogant, the special regime under GEO 25/2019 and IP enforcement rules should prevail over general provisions when trade secrets are at stake.

4. Remedies on the merits: injunctions, corrective measures and damages

On the merits, GEO 25/2019 provides for a broad range of civil remedies consistent with the Directive: final injunctions prohibiting the use or disclosure of the trade secret; prohibition of producing, offering or using infringing goods; recall, removal from the market or destruction of infringing goods; destruction or delivery to the claimant of documents, materials or electronic files containing or embodying the trade secret.

For damages, Romanian courts may award compensation based either on the actual prejudice suffered (including lost profits, unfair profits made by the infringer and moral prejudice) or on a lump-sum approach comparable to reasonable royalties that would have been due for a licence. This approach reflects both the Directive and general civil liability principles. Some practice notes mention limitation periods of up to six years for actions under GEO 25/2019, calculated from the date when the claimant knew or should have known of the unlawful acquisition, use or disclosure, although this may be subject to interpretation and interaction with general limitation rules.

5. Interaction with criminal law and unfair competition enforcement

While GEO 25/2019 is primarily a civil law instrument, misappropriation of trade secrets can also raise issues under unfair competition and criminal law. Law no. 11/1991 allows the Competition Council and other authorities to sanction certain unfair competition acts, including some forms of disclosure or exploitation of business secrets, through contraventional fines. In more serious cases involving theft, unauthorised access to IT systems or disclosure of classified information, the Criminal Code and sector-specific laws (such as those on classified information) may also apply.

For foreign groups, a coordinated strategy is often required: internal investigation and containment measures; civil action under GEO 25/2019 for rapid injunctive relief and damages; possible unfair competition complaints; and, where appropriate, criminal complaints, especially when there is systemic theft of information or involvement of organised groups.

6. Evidence and digital forensics

Although Romanian civil procedure is formally “paper-based”, digital evidence plays an increasingly central role in trade secret litigation (emails, system logs, access logs, device images, messaging apps). Practice notes on IP and trade secret disputes stress the importance of preserving evidence in a forensically sound manner, given that the claimant bears the burden of proving both the existence of the trade secret (including reasonable steps) and the unlawful acquisition, use or disclosure.

Foreign groups should ensure that their Romanian entities have clear protocols for immediate evidence preservation when a leak is suspected (for example, stopping automatic deletion policies, sequestering devices, involving external forensic experts) and that their IT and security teams are prepared to support court-ordered measures such as searches, seizures or expert examinations.

7. Cross-border issues and choice of forum

Trade secret misappropriation often has cross-border elements: an employee may copy data in Romania and use it in another Member State; servers may be located in a different jurisdiction; infringements may occur on online platforms. In such cases, EU rules on jurisdiction and applicable law (for example, Brussels I bis and Rome II) will interact with GEO 25/2019 and the Directive.

For foreign groups, it is generally advisable to ensure that key NDAs and technology transfer agreements specify the possibility of seeking relief in the jurisdictions where the harm occurs or where evidence is located, including Romania. This does not exclude arbitration or foreign courts for substantive disputes, but helps preserve flexibility for urgent interim measures before Romanian courts, which may be best placed to act quickly in relation to local infringers and assets.

Conclusion

Romania now has a modern, EU-harmonised trade secret regime centred on GEO 25/2019 and aligned with Directive (EU) 2016/943, complemented by unfair competition rules and a developed body of employment and contract law on confidentiality and non-compete obligations. For foreign corporate groups with Romanian operations, this framework offers robust tools, but only if the group’s internal organisation and documentation are carefully adapted to local requirements.

At a minimum, groups should (i) map and classify their Romanian trade secrets, (ii) implement a coherent internal trade secrets policy and technical/organisational safeguards, (iii) ensure that NDAs, confidentiality clauses and non-competes in Romanian contracts meet statutory standards and are proportionate, and (iv) prepare enforcement playbooks that combine civil, unfair competition and, where needed, criminal remedies, including interim measures. Recent Romanian practice and commentary underline that courts are increasingly receptive to sophisticated trade secret claims, provided claimants can show that they have treated their know-how as a valuable asset deserving of protection.

Sources

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