On April 1, 2025, Section 273a of the German Code of Civil Procedure (ZPO) took effect, thereby resolving – to a certain extent – the dilemma faced by parties to civil proceedings of having to choose between improving their chances of winning the case and safeguarding a trade secret. We are taking the entry into force of Section 273a ZPO as an opportunity to examine the scope of application and the sometimes misleading wording of the provision.
Initial point: Inadequate Protection of Trade Secrets in Civil Proceedings
Civil proceedings – at least the hearings and the pronouncement of judgments – are public (Section 169 of the German Court Organization Act (GVG)). As a result, holders of trade secrets have often had to make a difficult choice: either disclose the secret in court, thereby exposing it to the risk of becoming public knowledge or even being exploited by competitors – or lose the case.
Restrictions on the principle of public access in favor of protecting the parties’ trade secrets have existed to date through provisions of the GVG and (much later) through the German Act on the Protection of Trade Secrets (GeschGehG). Sections 172 (2) and 174 of the GVG allow for the temporary exclusion of the public from oral proceedings. However, these provisions provide protection only during this part of the proceedings and do not protect against the use or disclosure of trade secrets by the opposing party.
In 2019, the situation for holders of trade secrets improved in that, with the entry into force of the GeschGehG, information can now be classified in whole or in part by the court as requiring confidentiality at the outset of the proceedings upon the request of a party. Section 16(2) of the Trade Secrets Act (GeschGehG) then imposes an obligation to treat trade secrets as confidential on a permanent basis and neither to use nor disclose them. Pursuant to Section 18 of the GeschGehG, the obligation of confidentiality ceases only when the secret becomes public knowledge or upon a final and binding court decision. In the event of violations, enforcement measures such as fines of up to 100,000 euros and detention for contempt of court may be imposed. Crucially, however, these protective measures could only be ordered in proceedings specifically concerning the infringement of trade secrets.
Until now, only trade secrets in patent disputes have enjoyed a comparable level of protection. Under Section 145a PatG, all information submitted to the proceedings by the plaintiff and defendant may also be classified as subject to confidentiality in these proceedings. In this regard, Section 145a PatG refers to Sections 16 through 20 of the GeschGehG without establishing its own provisions. In this area, too, the legislature had already resolved the conflict in favor of stronger protection for trade secrets. Until now, holders of trade secrets had no protection when asserting other claims – they often faced the dilemma described above: losing either the secret or the case.
The New Section 273a ZPO: Background and Context
Section 273a ZPO is a provision from the Act to Strengthen Germany as a Center for Justice (Parliamentary Document 20/8649 of October 6, 2023), which is intended to make civil proceedings before the ordinary courts more attractive and to counteract the shift toward arbitration or foreign courts. The provision reads:
Upon motion by a party, the court may classify information at issue in the dispute, in whole or in part, as subject to confidentiality if such information may constitute a trade secret under Section 2 no. 1 GeschGehG; Sections 16 through 20 GeschGehG shall apply mutatis mutandis.
This provision applies to all civil court proceedings at all levels of jurisdiction via Sections 495, 525, and 555 of the Code of Civil Procedure (ZPO). It covers actions on the merits and proceedings for preliminary injunctions.
Requirements for Enhanced Confidentiality Protection in Civil Courts
Under Section 273a ZPO, the court may now, upon motion, classify information as requiring confidentiality in any civil proceeding. To do so, pursuant to Section 273a ZPO, the information at issue must constitute a trade secret within the meaning of Section 2 no. 1 GeschGehG. The wording is identical to the provision in Section 16 of the GeschGehG. The new provision thus integrates every proceeding with the provisions of the GeschGehG.
As in the GeschGehG, the connecting factor is “information,” whereby even a single piece of information is sufficient.
1. Business-related
Trade secrets must have a business-related connection. This is typically the case when the information affects a company’s sales or procurement interests. (Keller/Schönknecht/Glinke/Keller, 2021, GeschGehG Section 2, para. 11). The information must also have a connection to a specific company. (Harte-Bavedamm/Ohly/Kalbfus/Harte-Bavedamm, 2nd ed. 2024, GeschGehG Section 2, no. 11).
In numerous situations, the information is likely to lack a business-related connection. This is evident, for example, in family law disputes: In a bitter divorce battle, the location of a spouse’s hidden private bank accounts may constitute a secret that is practically important and highly valuable. However, the information has no business-related connection.
Furthermore, it appears questionable whether information about a person’s misconduct constitutes a trade secret. We have elaborated on this in our entry regarding the classification of information in the affair surrounding the (possible) abuse of power by the former editor-in-chief of Axel Springer Verlag (available here). Even when serious incidents that damage the company’s reputation are involved, such information generally does not meet the threshold for a trade secret.
At first glance, confidential information held by professionals bound by professional secrecy – such as doctors and attorneys – also appears to be confidential. However, such information generally lacks a business-related context. The purpose of protecting such secrets does not lie in the considerations of the GeschGehG, which holds that certain secrets are economically exploitable and should be treated similarly to intellectual property. The legal system protects such confidentiality interests through other means. For example, in such cases, the right to refuse to testify under Section 383 ZPO may apply. The requirement of a business-related connection will present the courts with classification issues in individual cases, which regularly lead to ambiguities even when the GeschGehG is applied directly.
2. Nature of the Secret
Section 2 no. 1 GeschGehG also sets forth three requirements for the existence of a trade secret: The information must not be known within the usual circles or readily accessible and must therefore have independent economic value. The information must also be subject to appropriate confidentiality measures, and the owner must have a legitimate interest in maintaining confidentiality. In particular, the required scope of measures for protecting trade secrets regularly raises questions. We have reported on the relevant standards, among other places, here.
3. Procedural Relevance of the Information
Finally, Section 273a ZPO requires that the information be “at issue in the proceedings.” Here, the new provision is worded ambiguously. The wording is identical to that of Section 16 (1) GeschGehG, so that at first glance, Section 273a ZPO appears to cover only those secrets that are part of the subject matter of the dispute. However, this interpretation of the provision in no way corresponds to the purpose of the law. The protection afforded by Section 273a ZPO is intended to extend the protection provided by the GeschGehG in civil proceedings and to include precisely those trade secrets that are not covered by Section 16 (1) GeschGehG. Thus, the scope of application encompasses all secrets that are introduced into the court proceedings for the purpose of pursuing or defending a legal claim, or that otherwise become known in any way within the context of such proceedings. The subject matter of the dispute is therefore any procedure-related information – such as evidence – that discloses a trade secret. Otherwise, the protection of trade secrets would not be extended, and the provision would have no new regulatory substance. A clearer formulation would have been desirable here.
Procedural Aspects
Any party is entitled to file the motion, regardless of its role in the proceedings. Intervenors may also file the motion. The existence of the elements of the claim must be set forth and substantiated. The court’s decision is rendered by order and, as a rule, without hearing of the opposing party.
When filing the motion, it is particularly important that the description of the trade secret be sufficiently specific. The sufficiently specific identification or description of the trade secret poses considerable difficulties in applications for injunctions under the GeschGehG, and not only because of Section 253(2) no. 2 ZPO. Rather, the trade secret must also be clearly identified in applications under Section 273a ZPO, because a violation of the confidentiality order may result in the imposition of a disciplinary measure. Thus, the criminal law requirements regarding the clarity of the court injunction apply. It remains to be seen whether the courts will apply this with the necessary clarity in each individual case.
Concerns also persist regarding the insufficient legal remedies available to third parties. The requirements for the courts when applying Section 273a ZPO also remain correspondingly unclear (see our blog post from September 2023).
It is worth noting that, pursuant to Section 37b of the Introductory Act to the German Code of Civil Procedure (EGZPO), the Act to Strengthen Judicial Locations also applies to proceedings that are already pending as of April 1, 2025. What initially sounds like immediate protection for trade secrets in currently pending proceedings raises the question of whether information that has already been disclosed to the parties in the pleading initiating the proceedings can still be considered a trade secret within the meaning of Section 2 no. 1 GeschGehG. If trade secrets have since become generally known or have become accessible to the general public or a professional circle without significant expenditure of time or expense, they are no longer trade secrets, meaning that protection under Section 273a ZPO comes too late.
Conclusion: Eased Conditions for Trade Secret Protection in Civil Proceedings Effective April 1, 2025
The new provision in Section 273a ZPO finally closes a gap of great practical relevance, even if the wording used to close the gap is unfortunate. In particular, opposing parties in civil litigation no longer need to fear for the protection of their trade secrets and, under Sections 16 et seqq. GeschGehG, have at least certain means to enforce their confidentiality interests. Litigation before the ordinary courts will become more attractive for companies, and Germany’s status as a legal hub will be strengthened. With regard to the handling of trade secret protection in civil court proceedings, the following can therefore be expected:
- Section 273a ZPO extends the level of protection provided by the GeschGehG to all civil proceedings. Questions of interpretation regarding trade secret protection will therefore now be relevant to all civil proceedings.
- Family law proceedings will be hardly affected by the new regulation.
- The new regulation will apply particularly among competing companies if trade secret protection is not already the subject of a legal dispute. Section ZPO can now establish permanent obligations regarding confidential treatment in such cases.