Protecting trade secrets after the "Filmm" decision

Workshop organized by Concurrences with Mayer Brown.


Laurence Idot

Today’s topic is purely procedural: the mechanism of appeals against decisions on business secrecy in French law of article R. 464-29 c. com. It has just been partially called into question by a judgment of the Council of State of 10 October 2014, the FILMM judgment. Before discussing it in more detail, it seems interesting to place this judgment in a more general context .

This judgment is part of a more general context, which is characterised first of all by a growing tension between transparency and secrecy. Apart from competition law, a recent illustration is provided by the proposal for a directive of 28 November 2013 on the protection of know-how and undisclosed information against unlawful use. This proposal, which was agreed by the Council, was transmitted to the European Parliament at the same time as a bill was tabled in France in July 2014 on the protection of business secrecy. It should be noted that these texts contain a definition of "business secrets" centred on the notion of secrecy. This tension is well known in competition law. It explains why, in all competition procedures before the specialized authorities, the more or less sophisticated mechanisms for the protection of business secrets have been put in place, which will hold us back today. On this point, we are witnessing a shifting of the debate in time.

Photos © Julien Paquin.

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