With effect from April 1, 2025, the Justice Location Strengthening Act (Justizstandort-Stärkungsgesetz) will take a significant step in the area of trade secret protection in civil proceedings. This law introduces Section 273a of the Code of Civil Procedure (ZPO), which for the first time provides explicit rules for the protection of trade secrets in all civil proceedings.
Until now, the protection of trade secrets in civil proceedings was only partially regulated. Apart from the possibility for the court to exclude the public (Sections 172 no. 2, 173 (2) GVG) and to oblige persons present to maintain confidentiality (Section 174 (3) GVG), the parties themselves had no separate instruments at their disposal to ensure confidentiality in civil proceedings (unlike in trade secret disputes). They could not claim non-public proceedings, nor was the confidential handling of trade secrets protected by legal mechanisms.
Section 273a ZPO closes this gap in protection. The wording of the new regulation is as follows:
“At the request of a party, the court may classify information that is the matter in dispute as confidential, in whole or in part, if it may qualify as a trade secret under Section 2 no. 1 of the Trade Secrets Protection Act; Sections 16 to 20 of the Trade Secrets Protection Act (GeschGehG) shall apply accordingly.”
In the future, parties to legal proceedings will thus be able to request that information be classified as confidential if it potentially constitutes a trade secret within the meaning of Section 2 no. 1 of the GeschGehG. The court will review this request at its discretion. The requesting party is required to provide prima facie evidence. It is sufficient if there is a possibility that a secret could be protected; a conclusive qualification is not necessary.
If the court decides in favor of such a motion, the provisions of sections 16 to 20 of the GeschGehG are also applied. Previously, section 145a of the PatG had already extended sections 16 to 20 of the GeschGehG to patent disputes. Now, the protection of secrets is also being established in the ZPO.
This has several consequences: All parties involved in the proceedings, including attorneys, experts or witnesses, are obliged to treat the information concerned confidentially. The information classified as secret may not be used or disclosed outside the court proceedings (Sec. 16 (2) GeschGehG). Furthermore, access to the court file is restricted for outsiders to prevent the disclosure of sensitive content (Section 16 (3) GeschGehG). Violations of the confidentiality obligation may result in sanctions in the form of a fine (up to EUR 100,000.00) or detention (Section 17 GeschGehG). The confidentiality obligation remains in force even after the court proceedings have been concluded (Section 18 GeschGehG). In addition, the court may order that only a limited, particularly trustworthy group of persons may inspect certain documents or participate in the proceedings (Section 19 GeschGehG).
The decision on the application is taken by court order and is subject to immediate appeal at the first instance (Section 20 (5) GeschGehG). It is strongly recommended that the application be filed at an early stage, if possible together with the statement of claim or statement of defense, in order to avoid unintentional disclosures.
The new Section 273a ZPO will apply to all ongoing proceedings from the time it comes into force. Unlike previous GVG provisions, the new provision is not limited to particularly significant trade secrets and does not require a balancing with public interests. This means a significant strengthening of trade secret protection even outside of typical trade secret disputes.
Nevertheless, the effective use of the provision remains challenging. The application must be well prepared, the information concerned must be clearly identified, and the confidentiality requirement must be specifically justified.
Since we have been regularly advising our clients in trade secret disputes since the introduction of the Trade Secrets Act, we are very familiar with the protective mechanisms of §§ 16 to 20 GeschGehG – an advantage that now also benefits us in the practical application of the new § 273a ZPO.
Section 273a ZPO offers companies a welcome option for protecting trade secrets in legal disputes without having to forgo judicial enforcement.
