NDA in a RES transaction: clauses and the consequences of a breach

A confidentiality agreement opens discussions about the RES project. The seller signs it before revealing project identifying data: parcel numbers, grid connection conditions, and land-related agreements. Until then, the interested party sees a teaser without sensitive data.

This text describes what parties usually agree on in such an agreement and which regulations protect project information regardless of it. It does not replace analysis of a specific document or assessment of a specific case.

Why confidentiality matters so much in RES projects

A project in the development phase is a set of administrative decisions, land rights and connection documents. Each of these elements has value in its own right, and its disclosure changes the seller's position:

• another entity may apply for grid connection conditions for the same substation,
• interested party may bypass the seller and contact the landowner directly,
• news of an advanced project spreads across the market before the parties agree on terms.

The public description of the listing should therefore remain general, and the exact location, contact details and documents should only enter a controlled circulation.

Statutory protection operates alongside the contract

The confidentiality obligation does not begin only upon signing. Under Article 72¹ § 1 of the Civil Code, if during negotiations one party discloses information subject to confidentiality, the other party is obliged not to disclose or transmit it to other persons, and not to use the information for its own purposes, unless the parties agree otherwise. In the event of a breach of this obligation, Article 72¹ § 2 of the Civil Code allows a claim for damages or for the disgorgement of benefits obtained by the other party.

The second basis is trade secret. Article 11(1) of the Act of 16 April 1993 on combating unfair competition considers the disclosure, use or acquisition of another's information constituting a trade secret to be an act of unfair competition. Article 11(2) of that Act links protection to a condition that is easy to forget: the information must have economic value, not be generally known or readily accessible to persons normally dealing with that kind of information, and the entitled party must take, with due care, actions to keep them confidential. The agreement itself is one such action, alongside access control to documents and labelling of files.

The agreement has practical precedence over these regulations: it describes exactly what is confidential, who can view it, and the consequences of a breach. Without it, a dispute begins with a disagreement over whether the information was protected at all.

What parties usually agree on

• Scope of confidential information, including documents, correspondence, discussions and the very fact of conducting negotiations.
• Exclusions, meaning information that is publicly known, already known to the recipient, lawfully obtained from a third party, independently developed, or disclosed upon request by an authority.
• Purpose of use, limited to transaction assessment, with a prohibition on other uses without consent.
• Recipient circle, i.e. a named or functional list of persons and advisors who are permitted to receive materials, together with responsibility for them.
• Prohibition on contacting the seller, including direct contact with the landowner, grid operator and authorities regarding the project.
• Return and removal of materials after the conclusion of discussions, with written confirmation.

How long should confidentiality last?

The period depends on the nature and significance of the protected information. The obligation may cover only the negotiation period, or it may last for a specified or unspecified time after their conclusion. In an RES project, some data loses sensitivity when the installation is built and appears in public lists, while other data, such as the content of agreements with landowners, retains its value for longer. Instead of adopting a single period for everything, it is worth separating information categories and assigning them different deadlines.

Liquidated damages and compensation

Article 483 paragraph 1 of the Civil Code allows for a clause in an agreement that compensation for damage resulting from non-performance or improper performance of a non-monetary obligation shall be made by payment of a specified sum. The obligation to maintain confidentiality is a non-monetary obligation, so it falls under this provision. The advantage is that Article 484 paragraph 1 of the Civil Code grants a penalty in the specified amount regardless of the actual damage incurred, which relieves the entitled party from the most difficult burden of proof.

The penalty has two limits. First, Article 484 § 2 of the Civil Code allows the debtor to request a reduction when the obligation has been performed to a significant extent or when the penalty is grossly excessive. An amount detached from the real value of the project and the scale of the breach is therefore subject to judicial moderation. Second, Article 484 § 1, second sentence of the Civil Code provides that a claim for damages exceeding the amount of the agreed penalty is not admissible, unless the parties have agreed otherwise. A reservation of the right to claim damages in addition to the penalty is therefore admissible, but it must be expressly stated in the contract.

Without contractual penalties, the general legal route remains. Article 471 of the Civil Code imposes on the debtor an obligation to repair damage resulting from non-performance or improper performance of an obligation, unless it is a consequence of circumstances for which the debtor bears no liability. Article 361 of the Civil Code defines the scope of compensation: liability covers the normal consequences of an act or omission, and compensation includes losses suffered by the injured party and benefits they could have obtained had the damage not occurred. However, one must prove the damage, its amount, and causation, which can be difficult in cases of lost project value.

What to do if a breach occurs

1. Secure evidence: correspondence, access logs to the document repository, prints and dates of material handover.
2. Determine which information leaked and on what basis it was protected, namely which contractual provision applied and whether it met the conditions under Article 11(2) of the Act on Combating Unfair Competition.
3. Call for cessation of the infringement, specify the relevant provision and set a deadline for response.
4. Request a refund or removal of the materials and written confirmation.
5. Consider applying for an injunction. Article 730 § 1 of the Code of Civil Procedure allows a request for an injunction in any civil case subject to examination by a court or an arbitral tribunal, and Article 730 § 2 of the CPC permits it even before the commencement of proceedings. According to Article 730¹ § 1 of the CPC, one must substantiate the claim and the legal interest, which Article 730¹ § 2 of the CPC links to a situation where the lack of an injunction would prevent or seriously hinder the enforcement of a judgment or the achievement of the purpose of the proceedings.
6. Assess with an advisor whether to pursue contractual penalties, damages, or claims under the Act on Combating Unfair Competition.

How does it work on TransakcjeOZE

The public offer card is a teaser. It shows the technology, region, development stage and planned type of transaction, and omits the exact location, contact details and documents. Identifying data and materials from the data room appear only in a controlled circulation, after the rules of information exchange between the parties have been established.

Preparing a listing is described in the guide how to sell a PV project, and organising documents before due diligence is covered in the RES project data room guide.

Checklist

• mark which project information is confidential before sending anything to the interested party,
• check if the agreement describes the purpose of use and the circle of recipients, not just the confidentiality obligation
• separate the information categories and assign them different protection periods,
• determine whether the contractual penalty is linked to the project's real value and the scale of the breach,
• if you want to claim damages exceeding the penalty, state this explicitly, as Article 484 § 1 of the Civil Code does not permit it without such a provision,
• maintain control over document access, because protecting trade secrets requires real actions, not just a signature,
• Keep the public listing description within the teaser limits.

Source materials

More on the structure of the confidentiality and trade secret protection agreement: NDA, how to effectively protect trade secrets. On liability for breaking off negotiations and on the obligation of confidentiality during them: liability for breaking off negotiations. Check the wording of the regulations on the day you use them.