Statement on behalf of AIPPI Sweden

Schjødt lawyers Christopher Tehrani (Partner) and Oskar Engman (Associate) have drafted a statement on behalf of AIPPI Sweden regarding the Swedish Government's draft proposal for submission to the Council on Legislation titled "A More Comprehensive Criminal Liability for Misappropriation of Trade Secrets". The statement was drafted in Swedish and submitted by AIPPI Sweden to the Swedish Department of Justice in late April 2025. The submitted statement can be accessed here.

AIPPI Sweden has reviewed the Swedish Government's draft proposal for submission to the Swedish Council on Legislation titled "A More Comprehensive Criminal Liability for Misappropriation of Trade Secrets" and wishes to provide the following comments regarding the proposed new wording of Section 26 a, third paragraph of the Swedish Trade Secrets Act (2018:558) (the "Proposal"). The Proposal reads:

"Minor offences shall not result in criminal liability. When assessing whether an offence is minor, particular consideration shall be given as to whether the offence is less serious because it was committed after the participation referred to in subsection 2 of the first paragraph^[1] had ended."

The Swedish Government justifies the Proposal partly on the grounds that it is of great importance that individuals do not feel restricted in their ability to use and further develop the experience and knowledge they have previously acquired in their professional lives. An expansion of criminal liability should, therefore, minimally impact this area and labour market mobility should be protected.

However, according to AIPPI Sweden, it is simultaneously evident that the Swedish Government intends for particularly disloyal conduct to be excluded from the exemption from criminal liability. The circumstances supporting or opposing the classification of particularly disloyal conduct are discussed in detail in the legislation commentary.

Therefore, AIPPI Sweden finds it regrettable that the parameters of this exemption from criminal liability are not more clearly outlined in the legal text itself. This concern is highlighted by the Swedish Supreme Court’s relatively recent decision not to apply a criminal provision based on statements in legislation preparatory works, referencing the principle of legality (NJA 2016 s. 3). In that decision, the Swedish Supreme Court emphasised that the principle of legality serves as a safeguard for legal certainty, requiring legislation to enable individuals to foresee when and — in certain respects — how they might become subject to criminal sanctions (paragraph 13).

Against this background, AIPPI Sweden suggests that it would be beneficial for the Swedish Government to clarify explicitly within the legislative text the exemption for particularly disloyal conduct from criminal liability, providing examples of circumstances indicating when an act should be considered particularly disloyal. Circumstances that could characterise such particularly disloyal conduct include, for instance, situations where an individual has accepted employment or undertaken assignments specifically to gain access to confidential information, where the individual held a position of special trust such as CEO or Head of Research, or where confidential information has been provided to a leading competitor.

Consequently, AIPPI Sweden proposes supplementing the Proposal with the following addition, subject to adjustments necessary or appropriate in consideration of the criminal legal system and traditions:

"Minor offences shall not result in criminal liability. When assessing whether an offence is minor, particular consideration shall be given as to whether the offence is less serious because it was committed after the participation referred to in subsection 2 of the first paragraph had ended, and whether, taking into account the offender’s position and the purpose, consequences, and other circumstances of the act, the offender cannot be considered to have acted particularly disloyally."

^{[1] Subsection 2 of the first paragraph refers to trade secrets which the individual has acquired through participation in the operation of a business or research institution due to employment, assignment, or similar basis, or in the context of a business relationship with such entity or institution.}