If the order of secrecy is refused pursuant to section 174 (3) GVG, there is no right of appeal against this order, the BGH has ruled with regard to secrecy in court and the German Act on the Protection of Trade Secrets (GeschGehG).
Since 2019, the new Act on the Protection of Trade Secrets (GeschGehG) has been in force in Germany, we reported. In addition to the question of what is meant by ‘reasonable’ secrecy measures in practice, secrecy itself is of course a central issue, and in particular secrecy in court. The Federal Supreme Court has already given case law on this (BGH, IV ZB 8/20).
Accordingly, paragraph 5 of the Act on the Protection of Trade Secrets differs from the provisions in the German Judicature Act (GVG) pursuant to § 174 (3) GVG: No appeal is admissible against an order refusing to order secrecy pursuant to § 174 (3) GVG, ruled the BGH. The German GeschGehG does not change this. This is because a defendant’s application for an order of secrecy only has the significance of a suggestion, which has no procedural function.
A decision that is incontestable according to the law cannot be challenged by admission, the court explained and referred to corresponding earlier decisions (inter alia BGH XII ZB 664/10, FamRZ 2013). Such a case also exists in the case of a decision to reject the order of secrecy, the BGH ruled. If the order of secrecy is refused pursuant to § 174 (3) GVG, there is no right of appeal. The immediate appeal was not admissible.
Order of secrecy refused – no immediate appeal admissible
Indeed, in German law § 174 (3) GVG provides for the admissibility of an (immediate) appeal against a decision ordering secrecy – but not against the non-ordering of a secrecy obligation. However, the Federal Supreme Court left no doubt that an immediate appeal cannot be lodged against a refusal of secrecy. This was because an immediate appeal was not admissible for the reason, that the decision did not require a formal application. The court explained that the defendant’s application for an order of secrecy only has the character of a suggestion, which does not have a procedural function.
Moreover, the immediate appeal was not to be allowed because this would be necessary with regard to the constitutional protection of trade and business secrets, the requirement of effective legal protection or the principle of procedural equality of arms.
Trade Secrets: No disclosure to the plaintiff
Moreover, the defendant could have protected itself from disclosure of its business and trade secrets by not submitting a copy of the documents for forwarding to the plaintiff’s side until the decision ordering the confidentiality obligation had become final – although the content of these documents would then not be considered in the final decision due to the plaintiff’s lack of a right to be heard (pursuant to BGH, Akteneinsicht XXIV, decision of 14 January 2020 – X ZR 33/19).
If in such a case essential documents cannot be used in the decision-making process and the decision is therefore made to the disadvantage of the defendant, one still has the opportunity to be heard (see BGH, I ZB 118/07). By filing an appeal against the final decision, the review by the appellate court can be demanded. In doing so, it can be asserted that one was hindered in the own submission by an erroneous non-order of secrecy and thus one’s right to be heard was violated.
A look at EU law on confidentiality
In July 2019, the European Court (Court of First Instance, CFI) ruled on the question of whether a pharmaceutical company may prohibit public access to documents submitted for marketing authorisation of the medicinal product.
The background to this case was a shareholder lawsuit brought against Intercept Pharmaceuticals in a US court in September 2017 (“the DeSmet lawsuit”). Intercept was interested to keep secret the disclosure of information requested by the EMA, which could be useful in the context of its lawsuit in the United States, and referred to Article 4(2) of Regulation 1049/2001, according to which exceptions to publication exist, especially in non-European court proceedings. But in vain; this exception only applies to documents produced in the context of specific pending court proceedings, the CFI ruled, or exceptionally to documents that were not produced in the context of specific court proceedings but nevertheless contain legal positions that later became the subject of such proceedings.
Protection of Trade Secrets is an issue for you?
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