France

Approach to implementation

Before the implementation of the EU Trade Secrets Directive (TSD), no specific protection to trade secrets was provided under French law. Therefore, the implementation of the TSD implied the adoption of a completely new legal regime. The French legislator implemented most of the provisions of the TSD and intended (approximatively) to respect the deadline imposed by the EU authorities and submitted a bill to the French Parliament.

The new Trade Secret Act is very close to the provisions of the TSD, without any important French specificities in the very few areas where the member States enjoy a sphere of flexibility, except perhaps the introduction of a civil fine to punish dilatory/abusive actions, whereas the TSD only provided for the possibility to impose sanctions in such cases without defining them.

Stage of legislative process

The bill was voted and adopted by the Parliament on 14 and 21 June 2018. It is the outcome of a lengthy process. Prior to that, the bill had been amended several times and numerous auditions of third parties and professional organizations had been held, especially since trade secrets are a very sensitive subject matter in France (with a strong lobby from journalists and other whistleblowers).

However, a motion challenging the compliance of the voted bill with the French Constitution was filed before the Constitutional Court (Conseil Constitutionnel). By a decision handed down on 26 July 2018, the Court upheld the constitutionality of the provisions of the aforesaid bill.

The bill was finally enacted under No 2018-670 on 30 July 2018. A Decree No 2018-1126 implementing some provisions of the new Trade Secret Act has been adopted on 11 December 2018 to finalize the legislative process.

Timescale for implementation

The TSD implementation deadline was 9 June 2018. The new Act implementing the TSD under French law came into force on 1 August 2018. 

Noteworthy points arising from the legislative changes

The adopted legislative draft does not provide for:

• criminal sanctions;
  
  
• specific rules as regards to the Court having jurisdiction: it means that usual commercial Courts will have jurisdiction, as opposed to what is applicable to IPRs for which only one or a few specific civil Courts have jurisdiction.

The Decree passed on 11 December 2018 provides for:

Actions to prevent or end a trade secrets breach

• The judge has the power to order, in ex parte or inter parte proceedings, provisional or protecting measures in order to prevent or end a trade secret breach and in particular:
  
  
  • prohibit the performance or continuation of acts of use or disclosure of a trade secret;
    
    
  • prohibit acts of production, offering, marketing or use of products suspected of being the result of a significant breach of a trade secret, or of importing, exporting or storing such products for these purposes;
    
    
  • order the seizure or return of such products, including imported products, to a third party in order to prevent their entry into or circulation on the market.
    
    

However, if the claimant does not file an action on the merits within 20 days working days or 31 calendar days if the latter period is longer from the date of the order, then the effect of the provisional or protecting measures will expire.

• The judge can authorize the defendant to use the alleged trade secret breach by subordinating it to the provision of a financial guarantee in order to indemnify the trade secret holder. Also, conversely, the judge can order the constitution by the claimant of a guarantee in order to indemnify the defendant if the proceeding doesn’t succeed.

Preservation of the trade secrets before the courts

• A person who invokes the trade secret protection for a document whose disclosure is requested has to provide the judge with :
  • the complete confidential version of the document
  • a non-confidential version or a summary version of the document
  • a memorandum justifying the confidentiality of each element for which the protection is required
    

• The judge can foreclose the access to the document only for the persons entitled to assist or represent the parties, and decide that these persons cannot make any reproduction or copy without the authorization of the owner of the document. Also, the judge is entitled to order the communication of the full version of the document if it is necessary to the complete resolution of the dispute. However, the judge can still control the access to it by limiting its communication only to certain individual.

The new Trade Secret Act provides for provisional and protective measures, but the practical details and prerequisites for such measures to be granted will be subject to a forthcoming Regulation. The regime thus remains so far uncertain in this (important) respect.