E-14/24
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Deadlines: Motivation ministry: 24 July 2024 Written observations: 9 September 2024
Keywords: Trade secrets; access to information
Subject: - Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (‘EU Trade Secrets Directive’).
Facts of the case: Appellant in the Norwegian case is ‘Elmatica’, and respondents are ‘Confidee’ and ‘Olsen’. Confidee and Olsen used to work for Elmatica. On 29 March 2023, Elmatica instituted legal proceedings against the former employees, claiming that Olsen and Confidee violated the obligation of loyalty inherent in an employment relationship, the general clause on good business practice and the Act on the protection of trade secrets. During the proceedings, both parties put forward a number of claims concerning access to evidence, one of which concerned an application for a tax deduction, containing trade secrets. A redacted version of the application has been submitted in evidence. Elmatica wanted access to the unredacted version, in order to find out whether its protection of trade secrets had been breached.
Neither the Oslo District Court nor the Court of Appeal obtained the disputed document before they addressed the issue of whether it should be adduced in evidence. The Supreme Court is now questioning whether access to the disputed evidence must first be obtained, in order to determine whether it is to be adduced in the proceedings. The Norwegian Act on the protection of trade secrets, which is an implementation of the EU Trade Secrets Directive, contains a number of procedural rules but does not regulate the approach to be taken in ruling on disputes involving access to evidence containing trade secrets. Therefore, the Supreme Court of Norway requests an Advisory Opinion from the EFTA Court for clarification on the rules.
Request for an advisory opinion: 1. In disputes concerning access to evidence in cases concerning remedies relating to trade secrets, does EEA law require national courts to weigh one party’s right to remedy breaches of its alleged trade secrets against the other party’s right to protection of its alleged trade secrets?
2. In that connection, does EEA law place an obligation on national courts to obtain and examine disputed evidence which may contain trade secrets in order to determine whether that evidence is to be adduced in the proceedings, or is it sufficient that national courts may, at their discretion, obtain the evidence in question in those cases where they deem it necessary in order to conduct a proper assessment of whether the evidence is to be adduced?
Cited (recent) case-law: C-927/19 Klaipėdos regiono atliekų tvarkymo centras
Policy Area: EZK
