To quote this paper: V. JOLIVET, “A request for protection under trade secret law in the context of legal proceedings in the luxury watch distribution sector”, Competition Forum, 2026, n° 0079 https://competition-forum.com. 

In a decision dated December 19, 2023[1] issued by the Competition Authority (ADLC below), Rolex France SAS, Rolex SA and Rolex Holding SA were sanctioned for a vertical agreement which aimed to prohibit the online sale of the brand’s watches by authorized distributors, a prohibition referred to in Article 101§1 of the TFEU and in Article L420-1 of the French Commercial Code.

The ADLC’s decision follows complaints filed by the Union de la Bijouterie Horlogerie and the company Pellegrin & Fils in January 2017, and search and seizure operations carried out on January 17, 2019.

On February 20, 2024, an appeal was filed with the Paris Court of Appeal by Rolex France, Rolex SA and Rolex Holding against the ADLC’s decision.

On March 29, 2024, these same companies filed their arguments and incident conclusions relating to the protection of trade secrets with the court registry.

On April 26, 2024, the company Pellegrin & Fils filed with the registry its declaration of « partial voluntary intervention » and its declaration of « partial incidental appeal ».

Between May and October 2024, the court sent several emails to the parties seeking clarification on the request and the classification of the documents. In addition, the French Competition Authority (ADLC), Pellegrin, the Hans Wilsdorf Foundation, and the Minister for the Economy submitted their observations between June and July 2024.

Before the Court of Appeal, Rolex argues that domestic law lacks an “automatic” seniority criterion preventing protection under trade secret law, as no legislation establishes such a criterion. To support its claim, the company cites prior case law according to which older data can remain strategic and sensitive[2]. Rolex maintains that the availability of watches, even before 2017, is highly sensitive commercial information that could reveal current and future business strategies.

Furthermore, the company also argues that preventing Pellegrin from accessing this data cannot prejudice the latter’s defense, as Pellegrin & Fils can already rely on its own experience to challenge the ADLC’s analysis.

As an additional point, Rolex indicates that it wishes to protect its information also from third parties so that it is only accessible within the framework of the procedure since the parties before the ADLC are subject to an obligation of non-disclosure under penalty of criminal sanction with article L463-6 of the Commercial Code.

Finally, Rolex requests extended protection for the underlying data (electronic files and computer programs) used for its economic studies attached to its resources, since the communication of this information to competitors or other players in the sector could cause it serious harm.

Pellegrin & Fils contests Rolex’s request for trade secret protection for information prior to 2017 under the five-year rule. This information includes Rolex’s growth, the number of watches attributed to Rolex France, information on the number of points of sale of independent Rolex distributors, price elasticity, the importance of price and brand in the purchasing decision, percentages on the price attribute, and annual watch production.

Indeed, the company believes that this information is no longer confidential due to its age and requests that this information be disclosed to its defense before the court.

However, she agrees that information after 2017 will be subject to this.

Finally, the French Competition Authority (ADLC) does not object to Rolex obtaining trade secret protection. However, it requests that the non-confidential versions of the documents be sufficiently detailed to allow Pellegrin & Fils to mount its defense.

Finally, the Authority also requests the disclosure of the data and computer programs that were used to carry out the economic analyses.

The Paris Court of Appeal was asked to answer the following question: Can information considered strategic and secret by a company, dating back more than five years, benefit from the protection of trade secrets?

On May 22, 2025, the Court of Appeal first noted that certain parts and components produced by Rolex were already covered by trade secret protection before the French Competition Authority (ADLC) and that this protection therefore remained in effect in the present proceedings. Furthermore, in the absence of any objection from Pellegrin & Fils information dated after 2017 was deemed strategic and thus protected.

Secondly, it was also noted that certain documents or excerpts from documents cover an indiscriminate period that includes information prior to 2017. Regarding these documents, the court used the dates of the various documents (all from 2024) to determine whether the documents, or parts of documents, containing the information for which protection is sought are eligible. Since Pellegrin & Fils and the French Competition Authority (ADLC) do not object, these documents will benefit from trade secret protection, with the exception of two paragraphs taken from the MAAP firm’s report, which were already covered by this protection under a decision of the Authority’s General Rapporteur.

Finally, the court ordered Rolex to produce the data used for the economic studies conducted for the analyses, which are subject to limited protection since the data is reserved for the court, the French Competition Authority (ADLC), the Minister of the Economy, and the Public Prosecutor’s Office. The court specified that the reasoning behind the ruling and its publication would be adapted to the requirements of protecting trade secrets.

The court therefore partially decides to accept Rolex’s request for trade secret protection and rejects it for information prior to 2017.

Therefore, it is necessary to consider trade secrets in proceedings before the ADLC (I) and to understand that this ruling contributes to the framework for trade secrets in competition law litigation (II).

I. Trade secrets in proceedings before the ADLC

Whenever a trade secret exists in a procedure, it is necessary to consider the strict framework for the latter, in particular for information older than five years (A) and the necessary balance between protection and the right to a defense (B).

A. Strict regulations governing trade secrets for information considered historical

In this ruling, the Paris Court of Appeal adopts a strict interpretation of trade secrets, rejecting the automatic protection of information that is sensitive for a company but is old. It should be noted that Article L151-1[3] of the French Commercial Code stipulates that trade secrets require three cumulative conditions to be protected: secrecy, commercial value, and protective measures.

In fact, the Court of Appeal notes that the information prior to 2017 invoked by the Rolex companies will not be able to satisfy the criteria of Article L151-1 in the absence of demonstration of a still current strategic character.

This is the main contribution of this ruling, as the court rejects Rolex’s argument that the age of the information is irrelevant to its classification as a trade secret. The court establishes a rebuttable presumption of the historical nature of the information, which precludes protection as a trade secret. However, this presumption can be overturned if it is proven that the information remains essential and current for the business strategy and that its disclosure could cause serious harm.

In this case, the five-year rule invoked by Pellegrin & Fils, derived from European case law, allows for the consideration that information prior to February 20, 2018, since the appeal was filed on February 20, 2024, is considered historical. Consequently, Rolex was unable to genuinely demonstrate its essential nature to its business strategy, resulting in the impossibility, in this ruling, of protecting the information as a trade secret.

The court, however, ordered in its ruling that Rolex produce the underlying data, as well as the programs and technical elements used for the economic studies, so that they could be analyzed with limited protection. Indeed, the data will be restricted to the court, the French Competition Authority (ADLC), the Minister of the Economy, and the public prosecutor. The court specified that the reasoning behind the ruling and its publication would be adapted to the needs of protecting trade secrets. Thus, the Court of Appeal wishes to make this information understandable without making it completely public, since it constitutes sensitive information for the company that produced it. It is with this in mind that the court is not granting Pellegrin & Fils access to the information. A necessary, partial procedural transparency is therefore being implemented.

The protection of trade secrets is therefore conceived as a functional and evolving protection and not as a privilege given for life to all data considered by companies as strategic.

However, it is necessary to strike a balance between protecting trade secrets and the rights of the defense.

B. A necessary balance between protecting trade secrets and the rights of the defense

The court affirms the need to avoid any disproportionate infringement of both trade secrets and the rights of the defense. It is worth recalling that the rights of the defense are a general principle of law and of the Charter of Fundamental Rights, which states: “Respect for the rights of the defense is guaranteed to every accused person,”[4] thus ensuring equality and fairness between adversaries.

The court indicates that Rolex’s request for protection of “historical” elements because they are old was not sufficiently substantiated and does not allow the rebuttable presumption to be overturned.

The court could therefore not balance the requirement of sufficiently intelligible non-confidential versions with the indispensability and proportionality of the infringement when the rebuttable presumption is overturned in the absence of sufficient evidence from Rolex.

The court further argues that the disclosure of non-confidential versions of these documents is necessary to enable Pellegrin & Fils to understand the economic analyses that were produced by Rolex.

Thus, the court adopts a balancing approach by refusing to protect this information as a trade secret in order to prevent it from becoming a means of opacity in proceedings. The judge’s role is therefore to guarantee a necessary and effective balance between the legitimate interests of society and the requirements of a fair trial.

Through this case, the Court of Appeal is defining the framework for trade secrets in competition law disputes.

II. A ruling contributing to the framework for trade secrets in competition law litigation

This ruling, which regulates trade secrets in litigation, is consistent with European and French policy on this subject (A). Finally, this desire for transparency of information in litigation can create tension with the protection of trade secrets (B).

A. A decision in line with the European and French commitment to protecting trade secrets

This ruling is fully in line with the CJEU’s established case law, according to which trade secrets cannot justify an excessive restriction on the procedural rights of the parties. This is particularly the case when information that has been secret for five years or more must be considered to have lost its secret character due to its historical nature, unless such information still constitutes essential elements of a trade position or those of relevant third parties ^[5].

Furthermore, the ruling adheres to the regulatory framework established by Directive 2016/943 of 8 June 2016[6], which was transposed into French law by Law No. 2018-670 of 30 July 2018[7] concerning the protection of trade secrets. This directive was codified in Articles L151-1 et seq. of the French Commercial Code, aiming to guarantee harmonized protection of strategic information in order to prevent abuse.

The Court of Appeal, by requiring precise proof of the secret and current nature of the information invoked by Rolex, faithfully applies the spirit of the European directive, which does not seek to establish absolute protection for this concept, as its consistent case law demonstrates. It therefore correctly applies the five-year rule, which leads to considering old information as historical and having lost its secret character, except in exceptional circumstances. In the present case, the five-year rule allows us to conclude that information prior to February 20, 2018, since the appeal was filed on February 20, 2024, must be considered historical and that, in the absence of proof of its essential nature, which is the case here, it can no longer be protected by trade secrecy.

In this ruling, trade secrets are thus used as a tool for competitive advantage between companies, regulated by the courts. Once again, the jurisdiction and central role of the Paris Court of Appeal is confirmed in reviewing decisions of the French Competition Authority (ADLC), creating consistency with the European objective of effective competition law.

Finally, there is a certain tension between trade secrecy and the desire for transparency of information during a competition law dispute.

B. The tension between trade secrets and the desire for transparency of information in competition law disputes

The protection of trade secrets and the right to evidence is a highly complex issue, particularly for companies that seek to protect their confidential information by any means necessary. In this regard, there is a principle of proportionality between the right to evidence and the potential infringement of trade secrets during litigation.

A concrete example of this balance is article L151-8 of the Commercial Code, which requires the disclosure of trade secrets when the latter is necessary to protect a legitimate interest recognized by national or European law ^[8].

The ruling highlights a persistent tension between Rolex’s desire for absolute protection of trade secrets and the need for transparency of information during litigation. Excessive protection can hinder access to evidence.

The ruling is consistent with a body of case law that seeks to establish the protection of trade secrets as a regulated right, subject to requirements of procedural fairness and the proper administration of justice. In this way, the court creates a procedural transparency that can be described as partial, since it excludes the other party in order to protect the data packs and programs from unfair use by the intervening party.

Another point of contention arose when members of parliament appealed to the Constitutional Council, denouncing the broad and imprecise definition of information eligible for trade secret protection. The Constitutional Council, in its ruling ^[9], upheld the transposition of the European directive, finding it constitutional.

Valentine JOLIVET

[1] Décision N°23-D-13, 19/12 /2023

[2] Paris Court of appeal, April 25, 2017, n°16/22365

[3] Article L151-1 of French Commercial Code : « Information meeting the following criteria is protected as a trade secret :

1. It is not, in itself or in the precise configuration and assembly of its components, generally known or readily accessible to persons familiar with this type of information due to their field of activity ;
2. It has actual or potential commercial value because of its secret nature ;
3. It is subject to reasonable protective measures by its legitimate holder, taking into account the circumstances, to maintain its secrecy. ».

[4] Article 48.2 of the Charter of Fundamental Rights

^[5] CJEU, March 14, 2017, Evonik Degussa v Commission, C-162/150, paragraph 64

[6] Directive 2016/943 of 08/06/2016 : https://eur-lex.europa.eu/eli/dir/2016/943/oj?locale=fr

[7] Law N°2018-670 of 30/07/2018 : https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000037262111/

^[8] In this regard, see the decision of the French Supreme Court (Commercial Chamber), February 5, 2025, No. 23-10.953.

^[9] Decision No. 2018-768 DC of July 26, 2018