Are NDAs legally binding in Poland? A guide for employers [2024]

Many employers hiring in Poland rely on non-disclosure agreements (or NDAs) to protect sensitive company information.

In some countries, NDAs are facing increased scrutiny and, if you’re considering hiring in Poland, you may have questions: Are NDAs enforceable in Poland and the European Union? How can you use NDAs to protect your company’s confidential information, trade secrets, and global employees? Read on to learn more.

(Note: our guide is for informational purposes, and isn’t intended to provide legal advice.)

What is an NDA?

A non-disclosure agreement (NDA) is a type of legal contract that prevents the parties involved from disclosing confidential or proprietary information to any third parties.

In Poland, the employer and employee can sign an NDA that restricts the employee from sharing specific types of information, like trade secrets, that they acquired while working for the company. Note that the Polish Civil Code establishes confidentiality during negotiations.

NDAs usually cover the obligation to use confidential information within the context of the agreement. Standard provisions may not always be comprehensive enough, requiring the inclusion of additional measures to protect trade secrets. It’s also a good idea to define procedures for handling documents and electronic media that contain confidential information after the termination of the agreement.

Are NDAs enforceable in Poland?

Yes—Under Polish law, NDAs are enforceable. However, there are a few important caveats:

• The NDA must be in writing.
• The terms must be specific as to whom the agreement applies to.
• The time period of the contract must be specified.
• The terms must be specific as to what is covered.
• The terms must specify what is not included (for example, information that has been publicly disclosed).
• The terms must also cover the disposal/protection of information after the agreement terminates.

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3 things you need to know about NDAs in Poland

1. There are two versions of a Polish NDA

There is a single type of NDA in Poland, however, it may be unilateral or bilateral.

• Unilateral: In a unilateral NDA (sometimes called a non-mutual NDA), only one of the parties, typically the recipient of the confidential information, is obligated to maintain confidentiality. These agreements are common in employer-employee relationships.
• Bilateral: Bilateral NDAs (or Mutual NDAs) are binding for both parties involved in the negotiations. These agreements apply when both parties are expected to share and protect confidential information. For example, mergers, acquisitions, and similar kinds of business deals.

2. There are essential components to make NDAs enforceable

These are the things that an NDA should include to be comprehensive and enforceable:

• Clear indication of the parties involved. The NDA should clearly identify the parties involved, including their respective names and roles. This includes specifying the disclosing party, who will be sharing sensitive information, and the receiving party, who will be granted access to such information. The NDA should outline any third parties sensitive information may be shared with.
• Clear definition of confidential information. This should include the general topic of information covered by the NDA, as well as the scope of information that's covered. In Poland, the information must be stated in detail. Note that while there is no specific general definition of confidential information provided under Polish law, Poland’s Act on Combating Unfair Competition explains that information can be considered a trade secret if it meets the following criteria: it has economic value, it is technical or technological or organizational information, it is not commonly known or easily accessible to people who usually deal with this type of information. It is also important that the person authorized to have access to this information has taken measures to keep it confidential. The NDA should also define how confidential information is shared; for example, is written information considered confidential but oral information is not?
• Exclusions from confidentiality. If there are any cases when parties in the NDA are allowed to disclose confidential information (for example, after it's been made public or for an audit), those should be included in the contract or confidentiality clauses.
• Terms of the agreement. How long does the NDA last? For employment NDAs, they typically last for the duration of the employment relationship, but they can last longer with limitations.
• Information protection post-agreement: These are terms covering the disposal and protection of confidential data after the NDA ends.
• An arbitration or mediation clause for dispute resolution. These can be beneficial in the case of disputes over the NDA and maintain confidentiality obligations during the process.
• What will happen if the NDA is breached. It's a good idea to include provisions that outline any injunctions, damages, or other contractual penalties for breaching the NDA.
• Stipulate applicable law. You (or a law firm) should reference the laws used to create the NDA and have them checked. This can help in the case of arbitration or mediation.

3. There are three legal requirements for NDAs in Poland

For NDAs to be enforceable in Poland, they must be:

• Reasonable. The NDA cannot place an undue burden on someone not to share information.
• Specific. The NDA needs to clearly define the kind of information that's confidential and the time frame during which it cannot be disclosed.
• Not outside the public interest. Certain information can't be covered by an NDA. For example, a company can't require employees to sign an NDA to prevent them from disclosing criminal activity by the company.

When would an employee or contractor sign an NDA?

As early as possible. It's common for employees and contractors in Poland to sign NDAs during their onboarding process or when they start a new work contract. An NDA may also be included as part of a new hire's offer letter or employment contract, or as a separate agreement.

Frequently asked questions about NDAs in Poland

Are NDAs enforceable in Poland?

By law, an NDA is considered a legally binding contract in Poland. Polish courts have historically upheld them as long as they meet the legal requirements above. Keep in mind that if a court finds a contractual penalty to be unreasonably high, it may be deemed invalid.

It's important to note that employment statutes and other applicable laws and regulations that affect NDAs can change, altering the ways they can be used by employers.

Are NDAs enforceable in other countries?

The enforceability of a Polish non-disclosure agreement outside of the country depends on factors like the terms of the agreement and the national laws of the country where the NDA is being enforced.

In general, an NDA that is valid and enforceable in Poland may also be enforceable in other countries, particularly in countries that recognize and enforce foreign judgments. Certain regulations are standardized across the European Union (EU). However, there are many factors that can affect the enforceability of an NDA in a foreign jurisdiction, such as differences in legal systems, cultural norms, and public policy considerations. It’s highly advisable to seek advice from a legal expert familiar with the laws in the country you want the NDA to be enforced in.

What information can be covered by an NDA?

In Poland, information that's considered confidential or proprietary can be covered by an NDA. The Polish Unfair Competition Act defines business or trade secrets as valuable information that is not widely known or easily accessible to those in the relevant field. To qualify as a trade secret, the person authorized to use or handle the information must commit to keeping it confidential with reasonable care.

This includes:

• Trade secrets and proprietary information. This can include things like manufacturing processes, formulas, designs, and technology that are unique to a company and provide a competitive advantage.
• Financial information, including confidential financial statements, budgets, sales figures, and projections.
• Customer information, including personal data like customer contact information, purchasing history, and preferences.
• Employee information. This can include information about employees, such as their salaries, job duties, and performance evaluations.
• Intellectual property, which can include patents, trademarks, copyrights, and other types of intellectual property that are owned by a company.

Any information that's publicly known or part of the public domain cannot be covered by an NDA. NDAs also aren't allowed to prevent employees from disclosing criminal activity by a company. The NDA cannot violate the EU’s General Data Protection Regulation (GDPR) and the Polish Personal Data Protection Act.

When should you use an NDA?

Common situations to use an NDA in Poland include:

• When an invention or business idea is being presented to a potential partner, investor, or employee
• When financial information is being shared with a potential partner or investor
• When a new product or technology is being shown to a prospective buyer
• When sensitive company information is shared with an employee or contractor
• When access to proprietary or confidential information is given to employees or contractors
• When customer information is shared with employees or contractors
• When conducting research, you need to share sensitive information with a research firm

Rippling makes it simple to create and send out an NDA as part of a job offer package.

Is an NDA the same as a confidentiality agreement?

Yes. In Poland, an NDA and a confidentiality agreement are essentially the same thing, and the terms are used interchangeably.

Is an NDA the same as a non-compete agreement?

No. An NDA is different from a non-compete agreement. In Poland, a non-compete agreement is a specific type of agreement found in business or employment contracts. It restricts employees or contractors from establishing a business relationship with a competing company, providing services and know-how to a company's clients, or engaging in similar business activities. It is valid until the end of the term of the employment.

The non-compete restriction can remain in effect even after the termination of the employment relationship, but only if it is specified in a separate agreement. The employer must also establish a specific duration for the non-compete period and include terms of compensation.

Is an NDA ethical?

Yes—NDAs are generally used to protect employers by preventing contractors and employees from sharing trade secrets and other proprietary information with competitors.

Benefits of NDAs in Poland

An NDA can help protect employers' confidential information, intellectual property rights, and proprietary assets, which can be crucial to a company's success in today's highly competitive business environment. Benefits include:

• Legal protection for confidential business information, trade secrets, and other proprietary information that is disclosed to another party
• Prevention of unauthorized disclosure of confidential information and other subject matter by requiring the recipient to keep the information confidential and not to disclose it to third parties
• Legal recourse to seek damages and other remedies under the provisions of this agreement if a recipient of confidential information breaches the NDA
• Protection of intellectual property, such as patents, trademarks, and copyrights

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Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors before engaging in any related activities or transactions.