Minimum Protection or more

No statute is a law unless sanctions are applicable in cases of non-compliance. In this respect article 39 gives the Member States a very broad margin of discretion. Offences against trade secrecy may result in no more than damages and injunctive relief. On the other hand, a Member State may criminalise the unauthorised disclosure or use of a trade secret and apply severe penalties, as in the latest United States legislation (EEA 1996).

It can now be seen that while article 39 of the TRIPS agreement is broadly clear, it gives the Member States of the WTO an exceptionally broad margin of discretion in respect of the extent of protection to be provided for trade secrets. The question of whether to enact only the minimum standard of protection required by the agreement or some much more extensive legislation to protect trade secrets which the agreement also allows is one which cannot be answered by jurisprudence alone. Other criteria must therefore be applied.