Since July 2018, law #2018-670 protects trade secrets in France (this law was adopted as part of the transposition of Directive (EU) 2016/943 of June 8, 2016).
If we refer in principle to trade secret with regard to the production of documents in court, a judgment of the Paris Court of Appeal of April 8, 2021 recalls that we can also rely on trade secret in matters of procedural document. Here is a great decision in terms of trade secrets.
In this case, on February 19, 2021, the ITM AI company (a subsidiary of the ITM company, owner of the Intermarché and Netto brands) was summoned by the French Minister of the Economy and Finance before the Commercial Court for unfair trade practices.
Noting that the summons issued to it contains sensitive information and that this summons is also in the process of being issued to AgeCore, a purchasing center in which ITM AI is a 16% shareholder (the other shares being held by competitors), ITM AI summons the Minister in summary proceedings for the purpose of saying:
- that the summons contains confidential information relating to business secrecy,
- that their disclosure would cause it serious and irreversible damage,
- that it is thus necessary to redact confidential information.
Unsuccessful at first instance, ITM AI appealed against the order.
The Court of Appeal then proceeds step by step, various lessons that can be drawn from its analysis.
On the data for which protection is requested
Recalling the definition of business secrecy in Article L151-1 of the French Commercial Code, the Court of Appeal first examines the data present in the summons and in the documents produced in support of it. This concerns in particular quantified information on the amounts invoiced, on the number of contracts signed with suppliers, on the reductions obtained by ITM AI from suppliers, extracts from framework contracts, a table presenting the volumes of orders, commercial policies, annual agreements, reports of supplier declarations including figures, etc.
According to the Court of Appeal, this information is “clearly non-public, not easily accessible and is less than 5 years old so that it is recent enough to remain sensitive and strategic from a commercial and competitive point of view“. For the documents produced, the Court noted that they are also covered by confidentiality clauses, the parties having intended to protect them. According to the appellate judges, this data is therefore a matter of trade secret.
We note here that:
- the large amount of economic and commercial information that may be considered sensitive;
- the recent nature of the documents used to confirm the commercial value of the information;
- the importance of drafting confidentiality clauses in its contracts to confirm their secrecy.
On the preventive measures requested
The Minister initially indicated that trade secret could not be opposed to him since the information was obtained in the exercise of his investigative power (thus basing himself on article L151-7 and L151-7 of French Commercial Code).
The Court of Appeal noted for its part that secrecy was not opposed to the Minister by the company ITM AI since he was able to obtain communication of the information in question, but that this secrecy must be opposed to the other parties. As such, the Court of Appeal considers that the Minister cannot transmit this information without having taken protective measures.
The Minister then maintained that the measures which could be requested of him would seriously infringe the right of defense.
If the Court of Appeal agrees, it calls for interim measures. It then requires that the company AgeCore be provided with only a version of the summons and documents redacted from all confidential data (sensitive data must therefore be redacted).
CA Paris, Pôle 1, Ch. 2, April 8, 2021, RG 21/05090, SAS ITM Alimentaire International c / Minister of the Economy, Finance and Recovery