Trade secret: proof of the risk of publication of essential elements of the commercial position

By Decision No. 23-D-13 of 19 December 2023, the Competition Authority sanctioned Rolex France SAS (hereinafter “Rolex”), as the author, for having implemented a vertical agreement to prohibit the online sale of Rolex watches by its authorized distributors, a practice contrary to Article 101, paragraph 1, of the Treaty on the Functioning of the European Union (hereinafter the “TFEU”) and Article L. 420-1 of the Commercial Code. This decision follows referrals from the Union de la Bijouterie Horlogerie and Pellegrin.

The trade secret request

Having appealed against this decision, Rolex requests the Court, under business secrecy and in application of Article L. 153-1 of the Commercial Code, as well as Articles R. 152-1 and R. 153-2 et seq. of the same code, that access to and use of the confidential elements she produced in her appeal brief before the Paris Court of Appeal be limited to the Court, the Authority, the Minister of the Economy and the Public Prosecutor.

Rolex contests, in particular, the allegation that information with a seniority of more than five years could no longer benefit from trade secrecy, since no text provides for a seniority criterion according to it. As for the case law, Rolex maintains that it allows the protection of data for more than five years (CA Paris, April 25, 2017 RG 16/22365 which stated that data on the value of sales, although they are more than five years old, remain sensitive and constitute a strategic element for each company).

In addition, Rolex argues that access to this information would allow it to obtain sensitive information about its current and future business strategy, and asserts that the lack of communication of Rolex watch availability data prior to 2017 is not likely to harm Pellegrin’s interests or affect its rights.

Opposing the confidentiality of this information, Pellegrin asks the Court to rule that this request is justified only insofar as the concealed information is subsequent to 2017 and to order that access to information prior to 2017 on the subject of the availability of Rolex watches be opened to it.

Assessment of the Paris Court of Appeal

The Court states that during the proceedings before the Competition Authority, several Rolex documents benefited from protection, pursuant to Article L. 463-4 of the Commercial Code, and considers that this protection must continue its effects before the Court of Appeal. (paragraph 18-19, judgment commented)

In addition, the Court of Appeal recalled that, in accordance with European case law (in particular the CJEU judgment of 14 March 2017, Evonik Degussa v Commission, C-162/15P, paragraph 64), interpreting Article 30 (2) of Regulation No1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, information initially secret or confidential, but dating back five years or more, is, in principle, considered to be historical and deemed to have lost its secret or confidential character due to the passage of time. However, this rule is subject to an exception if, exceptionally, the party who relies on this character demonstrates that, despite their age, this information still constitutes essential elements of its commercial position or that of third parties concerned. (paragraph 30, judgment commented)

For the sake of consistency, the Court considers that it is appropriate to apply this same five-year period when it is seized of an application for the protection of business secrecy based on Article L. 151-1 of the Commercial Code. As a result, information five years or more old at the date of the appeal can no longer benefit from trade secret protection, unless it is proven that such protection remains justified.

In the event that such evidence is adduced and the presumption is thus rejected, it is then up to the judge, if so requested, to examine whether the documents are essential to the proof of the alleged facts and whether the breach of their confidentiality is strictly proportionate to the objective pursued.

In this case, it was up to Rolex, as a trade secret claimant, to rebut this rebuttable presumption and to establish the secret and confidential nature of information dating back five years or more, that is to say, before 2017.

The Court notes that Rolex merely asserted that the passages concerned contained information relating to the availability of the watches, having commercial, financial and strategic value. However, no specific arguments have been developed by Rolex to demonstrate that, despite their age, this information still constitutes essential elements of its commercial position and that their disclosure would be likely to cause it harm.

In addition, Rolex’s desire to also protect itself from third parties, and not just Pellegrin, is considered inoperative. Indeed, the principle of the passage of time on the protection of business secrecy applies indiscriminately, regardless of the purpose of the protection sought.

In the end, the Paris Court of Appeal rejected Rolex’s request, but only for information relating to the year 2017 and previous periods.

Commented judgment: Paris Court of Appeal, 22 May 2025, No. 24_03052