“New rules for the protection of confidential information apply in civil proceedings in Germany. The effort required for companies that want to benefit from these rules is considerable.
The natural enemy of secrets is the public. As soon as information becomes generally known, it loses its confidential character. This is a delicate matter for companies when it comes to their trade secrets. It becomes particularly critical when they have to disclose these secrets in court proceedings, whether to substantiate their own claims or to defend against opposing claims. Until now, in public proceedings under German law, not only the general public but also the opposing party could gain unrestricted access to economically significant information. This inevitably meant that the opposing party learned about customer or order lists or unpatented technical innovations. Thus, companies in state court proceedings often face the dilemma of either disclosing trade secrets or losing the case.
The reason for this was that trade secrets were previously only protected in disputes under the Trade Secrets Act ("GeschGehG"). In other proceedings, the general rules for excluding the public in the Code of Civil Procedure offered only insufficient protection, particularly because they only apply from the oral hearing onward.
A new provision in the Code of Civil Procedure (ZPO), which has been in effect since April 1, 2025, and also applies to pending proceedings, is intended to close this protection gap. Section 273a of the ZPO extends the protection under the GeschGehG to all civil disputes. This allows trade secrets introduced into civil proceedings to be protected accordingly.
A prerequisite for procedural protection of trade secrets is an application to the court, in which the secret information must be clearly identified. This is often a challenge when company information is not sufficiently specific. Close cooperation between the applicant's technical and legal departments and the litigation lawyers is therefore essential.
Trade secrets within the meaning of the GeschGehG (and thus also of Section 273a ZPO) are defined as information that is not generally known or readily accessible, has commercial value because it is secret, and is subject to reasonable measures to keep it secret.”
According to Section 273a of the German Code of Civil Procedure (ZPO), trade secrets are economically valuable information that is not generally known or accessible and is protected by appropriate confidentiality measures. Whether the protection is adequate is assessed on a case-by-case basis. Access regulations, such as cryptography, and access controls must be specifically described. Simply referring to contractual ancillary obligations or general duties of loyalty on the part of the opposing party is not sufficient. If adequate confidentiality measures are lacking, procedural protection as a trade secret is not possible.
The application for protection can be filed even before the statement of claim is served on the opposing party. At this early stage of the proceedings, it must be explicitly requested that service only take place after the court has classified the information as confidential. Ideally, the confidential information should not be specified in the application itself, but in a separate annex.
The applicant must demonstrate, in substance, that the information in question constitutes a trade secret. Justifying such an application for protection is complex: the applicant must, in particular, describe the technical, organizational, and legal protective measures they have taken to safeguard confidentiality.
In the application for protection, it is only necessary to demonstrate plausibly that the information is a trade secret; that is, the need for protection must be "highly probable." The court then decides by order without a prior hearing of the opposing party. If the application is granted, the opposing party must be heard subsequently. The protection can then be revoked if the order is overturned. Importantly, even under the regime of Section 273a ZPO, the opposing party gains knowledge of the confidential information, albeit possibly subject to confidentiality obligations. A true exclusion procedure, such as the "in-camera procedure" used in administrative proceedings, has not been implemented.
If information is classified as confidential, parties to the proceedings may neither use it outside the proceedings nor disclose it to third parties. The protected information may not be disclosed to the parties involved in the proceedings. Violations can be punished with a fine of up to 100,000 euros or imprisonment for up to six months. Whether this constitutes a punishable violation of trade secrets under the Trade Secrets Act is disputed and depends on the circumstances of the individual case.
The initial assessment of the new regulation is mixed: Section 273a of the German Code of Civil Procedure is certainly a step forward for the protection of trade secrets in civil proceedings. The German legal system also benefits from this. This is particularly true in comparison to the Anglo-American legal system, where comparable instruments for the procedural protection of trade secrets have long existed. However, initial practical experience shows that the new procedural instrument presents applicants with considerable challenges. Strict requirements apply to the specificity of the application and the depth and substantiation of the arguments presented. Companies must therefore ensure, above all, that they have properly implemented and documented the technical and organizational protection of their trade secrets. Protection measures that were previously neglected cannot be implemented ad hoc in the event of a dispute.
Ben Steinbrück is a partner, and Simon Apel is counsel at the business law firm SZA Schilling, Zutt & Anschütz.” [1]
1. Schutzschild für Geschäftsgeheimnisse. Frankfurter Allgemeine Zeitung; Frankfurt. 15 Oct 2025: 18. Von Ben Steinbrück und Simon Apel
Komentarų nėra:
Rašyti komentarą