In this case, on February 19, 2021, ITM AI (a subsidiary of ITM Entreprise, owner of the Intermarché and Netto brands) was summoned by the Minister of Economy, Finance and Recovery before the Commercial Court for unfair commercial practices.
Noting that the summons served on it contains sensitive information and that it is also about to be served on AgeCore, a purchasing group in which ITM AI holds a 16% stake (the other shares being held by competitors), ITM AI summons the Minister in summary proceedings for an expedited hearing to obtain a ruling:
- that the summons contains confidential information covered by trade secrets ,
- that their disclosure would cause him serious and irreversible harm,
- that it is therefore necessary to redact confidential information.
Having lost its case at first instance, ITM AI is appealing the ruling.
The Court of Appeal then proceeds step by step, various lessons being able to be drawn from its analysis.
Regarding the data for which protection is requested
Recalling the definition of trade secrets in Article L151-1 of the French Commercial Code, the Court of Appeal first examined the data contained in the summons and the supporting documents. These included figures on invoiced amounts, the number of contracts signed with suppliers, discounts obtained by ITM AI from suppliers, extracts from framework agreements, a table showing order volumes, commercial policies, annual agreements, minutes of supplier declarations containing figures, and so on.
According to the Court of Appeal, this information is " clearly not public, not easily accessible, and less than five years old, making it sufficiently recent to remain sensitive and strategic from a commercial and competitive standpoint ." The Court also noted that the documents produced are covered by confidentiality clauses, as the parties intended to protect them. According to the appeal judges, this data therefore falls under the category of trade secrets.
It should be noted here that:
- the numerous economic and commercial information items that can be considered sensitive;
- the recent nature of the documents was used to confirm the commercial value of the information;
- the importance of including confidentiality clauses in contracts to confirm their secret nature.
Regarding the preventive measures requested
The Minister initially indicated that trade secrecy could not be used against him since the information was obtained in the exercise of his investigative powers (thus relying on article L151-7 and L151-7 of the Commercial Code).
The Court of Appeal, for its part, notes that ITM AI did not invoke confidentiality against the Minister, since he was able to obtain the information in question, but that this confidentiality must be invoked against the other parties. In this respect, the Court of Appeal considers that the Minister cannot disclose this information without having taken protective measures.
The Minister then argued that the measures that could be demanded of him would seriously infringe upon the right to a defense.
If the Court of Appeal agrees to this, it recommends provisional measures. It then requires that AgeCore only be provided with a version of the summons and supporting documents redacted of all confidential data (sensitive data must therefore be redacted).
