On January 29, 2020, the Cour de Cassation issued two judgments relating to decisions from the FCA’s Rapporteur Général to waive the protection of business secrets granted to a party in proceedings before the FCA. In the first judgment, the Cour de Cassation held that the Rapporteur Général must provide concrete reasons in order to waive the protection of business secrets granted to a party in proceedings involving other parties. Conversely, in the second judgment, the proceedings did not involve any other parties, and the Cour de Cassation upheld the Rapporteur Général’s decision to waive the protection of business secrets initially granted to a party. The Cour de Cassation considered that the Rapporteur Général’s decision would not risk exposing that party’s business secrets to any third parties.
In the first case, one of the defendants made confidentiality claims over certain documents containing business secrets that had first been accepted by the FCA’s Rapporteur Général. However, the Rapporteur Général subsequently decided to declassify these documents “ for the purposes of the debate before the FCA” and communicated these in their full version (including the previously protected business secrets) to the other parties to the case, including the plaintiff. The defendant appealed this decision before the First President of the Paris Court of Appeal, who has jurisdiction over such claims. The First President of the Paris Court of Appeal upheld the Rapporteur Général’s decision, considering that the FCA had to submit the full version of the documents to the other parties in order to obtain the parties’ comments and assess the materiality of the facts. The company appealed in cassation.
The Cour de Cassation quashed the judgment of the First President of the Paris Court of Appeal. It considered that the Rapporteur Général had failed to explain why all parties to the proceedings— including the plaintiff—needed access to the full version of the documents. The Cour de cassation’s judgment considered that, in proceedings involving several parties, the Rapporteur Général could not provide a general reason for waiving the protection of business secrets granted to a party. Rather, he must provide concrete and specific reasons justifying that the other parties to whom the documents are disclosed require access to versions of the documents that include business secrets.
In the second judgement, the proceedings before the FCA concerned a company’s failure to comply with commitments, and therefore did not involve any third parties. The Rapporteur Général had issued a decision accepting the company’s confidentiality claims over certain documents, but subsequently decided to declassify these documents “ for the purposes of the debate before the FCA”. The company appealed. The First President of the Paris Court of Appeal upheld the decision on the grounds that the company did not suffer any harm, as no third parties would gain access to its business secrets. The company appealed in cassation.
The Cour de Cassation upheld the judgment, confirming that the company had failed to justify why the Rapporteur Général’s decision violated its business secret protection right, since no third party was involved in the proceedings. Therefore, unlike in the first judgment, it seems—although it is not explicitly stated—that the Rapporteur Général did not have to provide concrete reasons in this case, as there was no risk that the party’s business secrets would be disclosed to third parties.
While the first judgment provides a helpful clarification by requiring the Rapporteur Général to state reasons for his decisions to waive the protection of business secrets that he initially granted, the second judgment is far more questionable.
The second judgment assumes that when there is only one company involved in the FCA’s proceedings, there is no risk that the Rapporteur Général’s decision to waive business secrets protection would violate, “at this stage of the proceedings”, the company’s right to protect its business secrets.
However, this line of reasoning ignores the fact that information declassified during the investigation might also be considered non- confidential at a later stage, in particular in the final decision published by the FCA. Unlike for merger control proceedings, the French Commercial Code currently does not provide for a business protection mechanism at the stage of the publication of a decision relating to anticompetitive practices or compliance with commitments or injunctions. It is the duty of the FCA College to decide whether or not certain information should be redacted in the published version of such decisions. It is unclear whether the Rapporteur Général’s decisions to uphold or waive the protection of business secrets during the investigation binds the FCA’s College when it comes to the publication of the final decision. For the time being, it seems that the FCA considers that the Rapporteur Général’s decisions do not bind the FCA’s College. Recently, the FCA initiated a practice whereby it asks parties to provide any confidential claims on an advanced copy of the decision, and then freely decides whether to redact any excerpts from the public version of the decision without informing the parties whether their claims were accepted in the first place. As such, the parties cannot effectively protect their business secrets at the stage of the publication of the decision. In contrast, before the European Commission, the parties hold lengthy discussions with the case team on a non-confidential version of the decision before it is published.
Moreover, the second judgment ignores the impact that the Rapporteur Général’s decision to waive business secrets protection may potentially have on subsequent proceedings before French courts, in particular in the context of appeal proceedings against the FCA’s decision or private enforcement actions.
 Cour de Cassation, Commercial Chamber, Judgment No. 18-11.725 of January 29, 2020.
 Cour de Cassation, Commercial Chamber, Judgment No. 18-11.726 of January 29, 2020.