Important Limitations To The Protection Afforded "Business Secrets"

• Published date: 23 June 2022
• Subject Matter: nti-trust/Competition Law, Antitrust, EU Competition
• Law Firm: Bird & Bird
• Author: Mr Morten Nissen and Alexander Br'chner

In a recent decision, the Danish High Court clarified that several specific types of information concerning companies and their conduct must be made public in decisions by the Danish Competition Council ("DCC"), even where the applicant considers the information to be commercially sensitive.

The High Court reviewed a decision by the DCC from 2018, in which Teller (now "Nets") was found to have abused its dominant position by offering certain customers loyalty rebates from 2012 - 2016.

By law, decisions by the DCC must be published, so that case law is accessible and understandable and to enable potential claimants such as consumers and competitors to claim damages against the infringing company.

Nets had requested that some information was exempted from publication in the DCC's decision, as business secrets are exempt from publication pursuant to the Danish Competition Act.

Nets' claim in particular concerned the identity and number of customers to which Nets' conduct related, Net's product range, and specific contractual terms such as prices and discounts. Nets claimed that the publication of this information could potentially have significant harmful effects if not kept confidential, and therefore constituted business secrets.

As the Danish Competition and Consumer Authority ("DCCA") denied this request, Nets subsequently brought the case before the Maritime and Commercial Court, and later appealed this the judgment this court's judgment to the High Court.

In its judgment, the High Court provides that the information in the DCC's decision concerns matters which the authorities have considered to constitute an infringement of the Danish Competition Act, which will...