(ii) Confidentiality

Confidential information and competition law. Due care must be exercised in the disclosure of confidential information which triggers concerns from an antitrust or competition law perspective. Although development of (new) technology is usually exempted, this is usually not the case with respect to information regarding market shares, sales figures or cost price elements (or the parties’ intentions or plans to develop markets, to change pricing or to improve cost price). It is a gross violation of antitrust or competition law to enter into a non-disclosure agreement in the context of price-setting arrangements, competing procurement/tender processes and similar acts.

Duration of confidentiality. Depending on the Purpose of the non-disclosure agreement, the term during which confidential information must be kept secret and treated confidentially with due care might range from (usually) six months (in case of simple product development or assessing a long-term supply relationship) to eight or ten years (in case of joint technology development).