NDAs in Germany: Understanding the GeschGehG and Confidentiality Agreements

Non-Disclosure Agreements (NDAs) — known in Germany as Vertraulichkeitsvereinbarungen or Geheimhaltungsvereinbarungen — are fundamental business tools. In Germany, the Trade Secrets Act (Geschäftsgeheimnisgesetz, GeschGehG) provides the legal framework for protecting confidential information.

What Is an NDA?

An NDA is a contractual agreement between two or more parties governing the handling of confidential information. It defines:

• What is considered confidential
• How the information may be used
• How long the confidentiality obligation lasts
• What penalties apply for violations

The GeschGehG: Legal Foundation

The Trade Secrets Act (GeschGehG), enacted in 2019, implements the EU Trade Secrets Directive. Critically, a trade secret is only protected if the holder has taken reasonable protective measures.

What Qualifies as a Trade Secret?

Criterion	Requirement
Secrecy	Information not generally known
Economic value	Value derives from its secrecy
Protective measures	Reasonable steps taken to protect it
Legitimate interest	Lawful interest in keeping it secret

Types of NDAs

Unilateral NDA (Einseitiges NDA)

One party discloses confidential information; the other commits to confidentiality. Common in:

• Investor meetings
• Job application processes
• Supplier negotiations

Mutual NDA (Gegenseitiges NDA)

Both parties exchange confidential information and commit to mutual confidentiality. Common in:

• Joint ventures
• Merger negotiations
• Technology partnerships

Essential NDA Clauses

1. Definition of Confidential Information

Precision is critical. Too broad, and the NDA may be unenforceable. Too narrow, and important information remains unprotected.

2. Permitted Use

Clear rules on how the information may be used — typically only for the purpose of the business relationship.

3. Duration

The NDA's term and the confidentiality obligation's duration may differ. Typical: 2–5 years of confidentiality after the collaboration ends.

4. Return Obligation

Requirement to return or destroy all confidential materials when the agreement ends.

5. Penalties

Violations can trigger contractual penalties, damages claims, and — for willful GeschGehG violations — criminal penalties (up to 3 years imprisonment).

NDA Templates

The IHK Munich (Chamber of Commerce) and other IHKs provide free NDA templates. Key notes:

• Templates are starting points, not finished contracts
• Always customize for your specific situation
• Have a lawyer review when in doubt
• Ensure compliance with the GeschGehG

Sharing NDA Drafts Securely

The Problem

NDA drafts inherently contain sensitive information about the planned collaboration and the secrets to be protected. Sending them via unencrypted email contradicts the agreement's purpose.

The Solution

With LOCK.PUB, you can share NDA drafts through a password-protected link:

1. Upload the NDA document as a secure memo
2. Set a strong password
3. Share the link via email or iMessage
4. Send the password through a separate channel

This ensures only authorized individuals access your NDA draft — an important step toward meeting the GeschGehG's protective measures requirement.

Common NDA Mistakes

Mistake	Consequence
Vague definitions	NDA may be unenforceable
No protective measures	No protection under GeschGehG
Unlimited duration	May be deemed unreasonable
Missing return clause	Information remains in circulation
No penalty section	Difficult enforcement

When Do You Need an NDA?

• Before investor meetings: Before disclosing business ideas or financial data
• During personnel changes: Departing employees with access to trade secrets
• In partnerships: Before exchanging technologies or customer data
• With freelancers: When external contractors access internal processes

Conclusion

NDAs in Germany are well-anchored by the GeschGehG — but only effective when properly drafted and trade secrets are actually protected. Use IHK templates as starting points, customize clauses for your situation, and share NDA drafts securely.

Use LOCK.PUB to share confidential documents and NDA drafts with password protection — simultaneously fulfilling the protective measures required by the GeschGehG.