Parties to civil proceedings may be faced with the choice of either disclosing a trade secret or losing the case. The new Section 273a ZPO (German Code of Civil Procedure) is intended to improve the protection of trade secrets in civil proceedings and thus resolve the dilemma described above.
In civil proceedings, the parties must introduce all facts favourable to them into the proceedings (so-called principle of principle of party presentation). These facts may also be trade secrets. For example, a party may find itself in a situation where a trade secret is disclosed to the opponent without protection or the case is lost in favour of protecting the trade secret. Since the principle of publicity of the hearing also applies in accordance with Section 169 GVG (German Courts Constitution Act), there is also a risk that a trade secret introduced into the proceedings could even be made public.
Previously, the protection of trade secrets in civil proceedings was regulated solely in Sections 172 No. 2, 174 (3) GVG. Accordingly, "The court may exclude the public from a hearing or from a part thereof if an important business, trade, invention or tax secret is mentioned, the public discussion of which would violate overriding interests meriting protection". The adjudicating court was also able to oblige the persons still present to maintain secrecy about the disclosed facts.
However, trade secrets submitted in written submissions or as evidence were not protected. Furthermore, the protection did not continue after the conclusion of the civil proceedings. Rather, the special protection rules of Sections 16 to 20 GeschGehG (German Trade Secrets Act) only applied in proceedings in which claims were asserted under this Act or in patent litigation. The legislator has recognised this conflict and addressed it with the new provision of Section 273a ZPO.
Section 273a ZPO came into force on 1 April 2025 in order to close the protection gaps identified. It states:
"At the request of a party, the court may classify all or part of the information in dispute as confidential if it may constitute a trade secret pursuant to Section 2 (1) of the German Trade Secrets Protection Act; Sections 16 to 20 of the German Trade Secrets Protection Act shall apply accordingly."
Sections 16 to 20 GeschGehG now apply to all civil proceedings. Trade secrets under the GeschGehG is information that
(i) is not generally known or readily accessible and therefore of commercial value
(ii) is the subject of confidentiality measures that are reasonable under the circumstances by its legitimate owner, and
(iii) for which there is a legitimate interest in confidentiality.
Section 273a ZPO covers all trade secrets that are introduced into the proceedings or become known in the course of the prosecution or defence.
According to Section 273a ZPO, a party's application is required for the court to classify information as confidential. The applicant must present all of the above-mentioned facts and make them credible. In addition, it must clearly mark the passages relating to a trade secret in the documents submitted.
If the court considers the facts of Section 273a ZPO to be fulfilled, it is at its discretion to classify the information in dispute as confidential in whole or in part by means of an order. The further consequences are then governed by the GeschGehG. Pursuant to Section 16 (2) GeschGehG, the parties must treat the information confidentially and may not use or disclose it outside the court proceedings. Pursuant to Section 18 sentence 1 GeschGehG, this obligation continues to apply even after the conclusion of the court proceedings. In the event of a breach of this obligation, the court may order an administrative fine or imprisonment in accordance with Section 17 GeschGehG.
The right of third parties to inspect files is restricted in accordance with Section 16 (3) GeschGehG by making trade secrets unrecognisable or removing them before granting access to the files. In addition, the court may, at the request of a party in accordance with Section 19 (1) GeschGehG, restrict both access to the documents requiring secrecy and access to the oral hearing to a certain number of so-called "reliable persons".
The application pursuant to Section 273a ZPO should always be filed when a trade secret is introduced into the proceedings. The party whose trade secret is affected is authorised to file an application. This applies regardless of who introduced the trade secret into the proceedings. It can also happen that the opposing party introduces the trade secret into the process. In these cases, too, the application pursuant to Section 273a ZPO should be filed in any case.
If a party intends to introduce its trade secret into the proceedings itself, the application should always be made with the proviso that the complete documents should only be introduced into the proceedings and made accessible to others if the court grants the application. This ensures that the information is only disclosed to the other party if the court classifies it as confidential or the party decides to disclose the information without special protection.
The possible exclusion of the public and the obligation of the other party to maintain confidentiality are effective instruments for protecting trade secrets. However, if information that does not constitute a trade secret in the narrower sense is also to be protected, or if the public is to be excluded in any case, it is advisable to agree arbitration in contracts.
Simon Schuler
This post also appears in the Haufe Wirtschaftsrechtsnewsletter.
