Art. 273a ZPO: More protection for trade secrets in civil proceedings

The so-called “Justizstandort-Stärkungsgesetz” (Act to Strengthen Germany as a Center of Justice) brings significant innovations for civil jurisdiction in Germany. With the introduction of commercial courts and the possibility of conducting proceedings in English, Germany is set to become a more attractive location for international commercial disputes.

A central element is the new Art. 273a ZPO, which strengthens the protection of trade secrets in civil proceedings. The standard enables parties in civil proceedings to have disputed information classified as confidential if it may constitute a trade secret within the meaning of Art. 2 No. 1 of the German Trade Secrets Act (GeschGehG). A trade secret is deemed to exist if the information is secret and therefore has an economic value, is protected by appropriate confidentiality measures and there is a legitimate interest in maintaining confidentiality.

How companies can obtain protection under Art. 273a ZPO and GeschGehG

In order to obtain this protection, a party must submit a corresponding application and credibly demonstrate the aforementioned requirements of Art. 2 No. 1 GeschGehG. The court then decides at its due discretion, without hearing the other party, whether to classify the information as confidential.

If the application is granted, all parties to the proceedings are obliged to treat the classified information as confidential and may not use or disclose it outside the proceedings unless they were already aware of it outside the proceedings (see Art. 16 (2) GeschGehG). This obligation generally also applies after the conclusion of the proceedings. 

Violations of the confidentiality obligation can be punished with a fine of up to EUR 100,000 or imprisonment of up to six months in accordance with Art. 17 GeschGehG. In addition, the court may restrict access to documents or oral proceedings to certain persons in order to ensure the protection of business secrets.

Trade secret protection in all civil court proceedings in future

The introduction of Art. 273a ZPO extends the protection of trade secrets to all civil court proceedings, including labor court proceedings. Previously, the special protective mechanisms of Art. 16 to 20 GeschGehG were only applicable in special trade secret disputes. In civil proceedings, however, the disclosure of business and trade secrets of the parties to the proceedings is often necessary for the purpose of providing evidence.

The new regulation prevents parties from being forced to choose between disclosing sensitive information and losing a legal dispute. This could help to increase the attractiveness of state court proceedings compared to arbitration, as effective protection of secrets is now also guaranteed in public proceedings.

According to the previous legal situation, the ZPO only had provisions that protected third parties in civil proceedings when acting as witnesses (Art. 383 (1) No. 6, Art. 384 No. 3). The protection of a litigant against outsiders and against the public was also guaranteed in accordance with Art. 172 no. 2, Art. 174 (3) GVG (German Judicature Act). Accordingly, the public can be excluded from oral proceedings and the parties and their legal representatives can be obliged to maintain confidentiality. To date, however, there have been gaps in protection, particularly in cases where competitors are involved in the proceedings.

Real progress for companies, but secrecy remains essential

The introduction of Art. 273a ZPO is a significant step forward for companies in protecting their sensitive trade secrets in civil court disputes thanks to the inclusion of the GeschGehG.

However, it is still essential to take appropriate measures at an early stage to ensure the general protection of trade secrets and to continue to protect them effectively in the event of a legal dispute.

We can provide you with comprehensive expertise in the area of confidentiality protection and litigation and will be happy to advise you on the legal options and necessary steps to protect your trade secrets.