Judgment of the court of 9 August 2024 in Case E-11/23 – Låssenteret AS v Assa Abloy Opening Solutions Norway AS (Directive (EU) 2016/943 – Rules on evidence and disclosure of confidential information – Confidentiality rings – Trade secrets – Private enforcement of competition law – Weighing-up of interests – Article 5 of Directive 2014/104/EU)
Date: 2024-08-09
Institutions: EFTA Court
Subjects: European Economic Area, Norway, confidentiality, damages, dominant position, evidence, general legal principle, jurisdiction ratione materiae, right to an effective remedy, trade information








C_202407127EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/7127


28.11.2024







            JUDGMENT OF THE COURT
         
of 9 August 2024
         
in Case E-11/23
Låssenteret AS v Assa Abloy Opening Solutions Norway AS


(Directive (EU) 2016/943 – Rules on evidence and disclosure of confidential information – Confidentiality rings – Trade secrets – Private enforcement of competition law – Weighing-up of interests – Article 5 of Directive 2014/104/EU)


(C/2024/7127)

In Case E-11/23, Låssenteret AS v Assa Abloy Opening Solutions Norway AS – Request to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Eidsivating Court of Appeal (Eidsivating lagmannsrett), concerning the interpretation of the Agreement on the European Economic Area, in particular Article 54 thereof, and Article 9 of Directive (EU) 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, the Court, composed of Páll Hreinsson, President, Bernd Hammermann (Judge-Rapporteur) and Michael Reiertsen, Judges, gave judgment on 9 August 2024, the operative part of which is as follows:






1.


The scope of Directive (EU) 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 concerns only the unlawful acquisition, use or disclosure of trade secrets and does not provide for measures to protect the confidentiality of trade secrets in other types of court proceedings.










2.


Directive 2016/943 does not prevent a national court in a case such as that in the main proceedings from establishing a confidentiality ring which does not include at least one natural person from each of the parties to the case to be granted access to evidence constituting trade secrets which is submitted as evidence in the case.










3.


Article 9(2) of Directive 2016/943 does not give expression to a general principle of EEA law to the effect that a national court may not establish a confidentiality ring which does not include at least one natural person from each of the parties to the case to be granted access to evidence constituting trade secrets which is submitted as evidence in the case. In accordance with the principle of national procedural autonomy, it is for the national legal system to provide methods and limitations for the disclosure of information and evidence necessary to pursue the private enforcement of EEA competition law. However, the principle of effectiveness requires that the method and the extent of disclosure depends on a weighing-up of the protected interests on a case-by-case basis by the national court or tribunal.










4.


It is not of significance to the answer to questions 1 to 3 that the confidential information including trade secrets for which disclosure is sought is competitively sensitive in relation to the party seeking access to the information.










5.


Also in a case involving abuse of a dominant position under Article 54 of the EEA Agreement, EEA law requires a national court to weigh up the parties’ interests prior to ordering a party alleged to have abused its dominant position to disclose evidence constituting trade secrets while ensuring the effectiveness of EEA law.










6.


In the absence of the incorporation of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union into the EEA Agreement, there is no obligation under EEA law to interpret national law in light of Article 5 of Directive 2014/104.






ELI: http://data.europa.eu/eli/C/2024/7127/oj
ISSN 1977-091X (electronic edition)