The duration of confidentiality in an EU NDA is one of the most under-considered terms in routine commercial drafting. The standard 'in perpetuity' or 'indefinite' duration that appears in many NDAs is increasingly viewed under Member State contract law as unfair or disproportionate, particularly where the information loses commercial sensitivity within a few years. The Trade Secrets Directive 2016/943 distinguishes between general confidential information (which is contractually protected) and trade secrets (which receive statutory protection if specific conditions are met) — and the duration treatment of each is different. Member State courts increasingly scrutinize indefinite NDA durations under general principles of contractual proportionality, particularly in France (good faith under Code civil Article 1104), Germany (Treu und Glauben under BGB §242), and Italy (buona fede under Codice civile Article 1175). For B2C NDAs, the Unfair Terms in Consumer Contracts Directive 93/13/EEC further constrains duration.
What is a Duration Clause?
The duration clause in an EU NDA defines how long the recipient must keep information confidential. It is governed by: (1) the contract terms; (2) Member State contract law on proportionality and good faith; (3) the Trade Secrets Directive 2016/943 for information meeting the definition of 'trade secret' under Article 2(1); (4) Member State sector-specific durations (e.g., banking secrecy, professional secrets); (5) the Unfair Terms Directive 93/13/EEC for B2C. Standard EU drafting distinguishes the duration of the disclosure window (during which the disclosing party may share information) from the duration of the confidentiality obligation (during which the recipient must keep it confidential).
Red flags to watch for
An indefinite confidentiality duration for routine commercial information is disproportionate. Information loses commercial value over time. Member State courts may construe indefinite durations down to a reasonable period or strike them as unenforceable. Standard durations are 3-5 years for ordinary commercial information.
Trade secrets — information that is secret, has commercial value, and is subject to reasonable protective steps under Directive 2016/943 Article 2(1) — receive statutory protection that may extend indefinitely while the trade secret status is maintained. Ordinary confidential information does not. A well-drafted NDA distinguishes these and applies different durations.
Once information is in the public domain through no fault of the recipient, the confidentiality obligation should cease as to that information. A duration clause that continues after public disclosure (other than by the recipient's fault) is overbroad.
If the NDA has a rolling disclosure period, the duration should run from the last disclosure rather than the first. Otherwise, information disclosed near the end of the disclosure window has very short protection while information disclosed early has longer protection.
Vague references to 'longer durations for sensitive information' without specifying which categories receive which durations create ambiguity. The clause should specifically identify trade secrets, personal data, and other categories with distinct durations.
A duration of 10 years for product roadmap information that becomes irrelevant after a product release in 18 months is disproportionate. Duration should be tied to the period during which the information retains commercial value.
The end of the underlying business relationship typically does not end the confidentiality obligation. Without an express survival clause, ambiguity arises. The duration should expressly run from the date of disclosure, regardless of when the underlying contract ends.
Your legal rights
EU NDA duration is governed by: Member State contract law principles of proportionality and good faith — French Code civil Article 1104 (bonne foi), Article 1162 (clauses abusives), Article 1170 (clauses privant le débiteur de l'essentiel); German BGB §242 (Treu und Glauben), §307 (Inhaltskontrolle); Italian Codice civile Articles 1175, 1366, 1370; the Trade Secrets Directive 2016/943 (transposed in each Member State) for trade secret information; the Unfair Terms in Consumer Contracts Directive 93/13/EEC for B2C; GDPR for personal data (storage limitation principle Article 5(1)(e)); sector-specific durations (banking secrecy, professional secrets). Member State courts apply national law to evaluate whether a duration is proportionate.
Questions to ask before you sign
- 1What is the duration of confidentiality, and is it proportionate to the value and lifespan of the information?
- 2Does the NDA distinguish trade secrets (longer protection) from ordinary confidential information (3-5 years typical)?
- 3Does confidentiality cease when information enters the public domain through no fault of the recipient?
- 4If there is a rolling disclosure period, does the duration run from last disclosure or first disclosure?
- 5Are there different durations for different categories — trade secrets, personal data, financial information — and are they specified?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.