COMPLIANCE & RIGHT · TREATY
BAG, Judgment of 17 October 2024 – 8 AZR 172/23. A comprehensive confidentiality clause can seem particularly safe at first sight. In the employment contract, their general scope can lead to ineffectiveness. The decision is therefore an opportunity to examine contract design and actual protection of secrets together.
The case and the decision
One company required a former employee to refrain from passing on certain technical information. The contract of employment required him to remain silent on all internal transactions indefinitely. The lawsuit also remained unsuccessful before the Federal Labour Court.
The court objected to the comprehensive post-contractual binding form as an inappropriate disadvantage. In addition, for the coveted future injunction protection, the requirements of the now valid GehG had to be fulfilled. An earlier case did not make the examination of appropriate confidentiality measures unnecessary. The judgment is therefore not a statement that former employees are likely to pass on trade secrets at will.
What companies should derive from this for their contracts
The following classification concerns the practical examination of contracts. Confidentiality clauses should indicate the subject-matter of protection and legitimate interest. Public knowledge and general professional knowledge must not be recorded indiscriminately. Subcontractual links must be distinguished from a non-competition obligation in particular. There are independent conditions for such a decision.
The revision should also take into account permitted disclosures and legal disclosure requirements. A clause, for example, must allow cooperation in an approved project and must not unduly prevent protected notifications. Contract patterns for employees, external developers and business partners are therefore not easily interchangeable.
Legal protection needs effective measures
§ 2 GeschGehG requires appropriate confidentiality measures. Which are suitable depends on information, value, company and risk. Practically this means: Identifying information in need of protection, limiting access, explaining permitted use and documenting changes. For important development documents it should be possible to show who has access and for what reason.
At the end of the project and when employees leave, accesses, devices and documents are handled in an orderly manner. The necessary backup must be permitted under data protection law. A subsequent directive does not replace proof of how the information was previously protected.
Three audit questions for the next revision of the contract
- Does the clause describe clearly which knowledge is to be protected?
- Is the post-contractual bond objectively justified and legally proportionately limited?
- Can the safeguard measures actually applied in the company be proven?
In the case of a concrete data outflow, additional questions of proof, permissible clarification and, where appropriate, legal protection are added. The decision to proceed requires an examination of the individual case. The page contains more information about the organisation and typical mandates Trade secrets and know-how.
Legal basis and decisions: BAG, full decision 8 AZR 172/23; § 2 DECLARATION; § 307 BGB.
Situation as at 2 November 2026.
Further reading: Trade secrets and know-how · Employment law compliance · Compliance consulting: order, process and results
Four practical examples
The following fictitious cases illustrate typical examination questions. The concrete solution depends on the circumstances of the individual case.
01 · Flat-rate confidentiality
A contract permanently declares all operational operations to be secret. The clause will be examined for its scope and effectiveness, and information that is actually in need of protection will be determined in concrete terms.
02 · Accesses after departure
A former employee can still access project files. Permissions are withdrawn and the previous access is legally clarified.
03 · Confidential development
A company protects a concrete procedure through limited access and appropriate agreements. The actual measures support the examination of legal secrecy.
04 · General knowledge of experience
A former employee uses professional knowledge. The company separates freely usable experience from concretely protected information before claims are raised.
Your next step
Do you want to transfer the requirements to your company or have a specific process checked? A brief description and a reference to existing deadlines are sufficient for the first contact. We shall vote on the scope of examination and compensation prior to commissioning.