In this case, on February 19, 2021, the company ITM AI (subsidiary of the company ITM, owner of the Intermarché and Netto brands) was summoned by the Minister of the Economy, Finance and Recovery before the Commercial Court for unfair trade practices.
Noting that the subpoena issued to him contains sensitive information and that it is also in the process of being issued to the company AgeCore, a central purchasing body in which ITM AI is a 16% shareholder (the other shares being held by competitors), ITM AI summons the Minister in chambers from hour to hour for the purpose of saying:
- that the subpoena contains confidential information subject to business secrecy ,
- that their disclosure would cause him serious and irreversible damage,
- that it is therefore necessary to redact the confidential information.
Dismissed at first instance, the company ITM AI is appealing the order.
The Court of Appeal then proceeded step by step, various lessons being drawn from its analysis.
On the data whose protection is requested
Recalling the definition of business secrecy in Article L151-1 of the Commercial Code, the Court of Appeal first studies the data present in the summons and in the documents produced in support thereof. These include figures on the amounts invoiced, on the number of contracts signed with suppliers, on reductions obtained by ITM AI from suppliers, extracts from framework contracts, a table presenting volumes of orders, commercial policies, annual agreements, minutes of supplier declarations including figures, etc.
According to the Court of Appeal, this information is “ obviously non-public, not easily accessible and dates back less than 5 years so that it is recent enough to remain sensitive and strategic from a commercial and competitive point of view ”. For the documents produced, the Court notes that they are also covered by confidentiality clauses, the parties having intended to protect them. According to the appeal judges, these data therefore fall under business secrecy.
We note here that:
- the numerous economic and commercial information that could be considered sensitive;
- the recent nature of the documents used to confirm the commercial value of the information;
- the importance of inserting confidentiality clauses in its contracts to confirm their secrecy.
On the preventive measures requested
The Minister initially indicated that business secrecy could not be opposed to him since the information was obtained in the exercise of his power of investigation (thus basing himself on article L151-7 and L151-7 of the Trade code).
The Court of Appeal notes for its part that the secrecy was not opposed to the Minister by the company ITM AI since it was able to obtain communication of the information in question, but that this secrecy must be opposed to the other parties. As such, the Court of Appeal considers that the Minister cannot transmit this information without having taken protective measures.
The Minister then maintained that the measures which could be requested of him would seriously infringe the right of defence.
If the Court of Appeal agrees to this, it recommends interim measures. It then imposes to provide AgeCore only with a version of the subpoena and of the documents expurgated of all the confidential data (the sensitive data will thus have to be redacted).
