COMPETITION • FRENCH LAW • PROCEDURE
Undertakings have a legitimate right to ensure the protection of their business secrets, which Article 151-1 of the Commercial Code defines as any information which is not, in itself or in the exact configuration and assembly of its elements, generally known or easily accessible to persons familiar with this type of information because of their sector of activity; which has actual or potential commercial value due to its secret nature; and which is subject to reasonable protective measures, given the circumstances, by its legitimate holder to maintain its secret nature.
Article L. 463-4 of the Commercial Code allows the rapporteur general to refuse to disclose documents that might compromise business secrets and to make available to the parties only a non-confidential version and a summary of the documents or elements in question, unless consultation of these documents is necessary for the exercise of the rights of the defense of one of the accused parties. Decisions taken by the Competition Authority’s rapporteur general to refuse protection of business secrecy or to lift the protection granted may be appealed for reversal or annulment before the First President of the Paris Court of Appeal. The appeal is filed, examined and judged not in application of the Code of Civil Procedure but according to the special provisions under Articles R. 464-24-1 et seq. of the Commercial Code. An appeal in cassation may be lodged within ten days of the notification of the order of the First President or his/her deputy.
The effectiveness of business secrecy decisions handed down during the investigation phase of the case must be preserved during the oral debates that take place before the panel of the Competition Authority. The adversarial principle does not, at this stage of the procedure, require the applicant to attend the debates during which protected information is evoked. In addition, any party who discloses information concerning another party or a third party, of which it has become aware as a result of the communications or consultations, is liable to a one-year prison sentence and a fine of EUR 15,000 (Commercial Code, Art. L. 463-6). The disclosure of information covered by business secrecy is also sanctioned by the payment of damages to compensate for the direct and certain harm to the undertakings concerned, but not by the nullity of the procedure.