The Supreme Court of Norway (Høyesterett) has made a new request for an advisory opinion in Case E-14/24, Elmatica AS v Confidee AS and Vidar Olsen on the question of which requirements, if any, EEA law are imposed on national courts when they are to rule on questions of access to evidence in cases involving trade secrets.
According to the referring court, the Trade Secrets Directive (Directive 2016/943). does not regulate the approach to be taken in ruling on disputes involving access to evidence containing trade secrets. And therefore, whether a national court ruling on the question of access to evidence must first obtain the disputed evidence in order to determine whether it is to be adduced in the proceedings is an open question.
The facts are that Elmatica has requested access is Confidee’s application for a tax deduction for research and development in an innovative business (Skattefradrag for Forskning og Utvikling i et Nyskapende Næringsliv, abbreviated as “SkatteFUNN”) which concerned the development of a new IT platform for the purchase and sale of circuit boards and was submitted to the Research Council of Norway (Forskningsrådet). The applicant is seeking access to an un-redacted version of an annex to that application as it seeks to assertion whether Elmatica’s protection of trade secrets has been breached.
At first instance before the Oslo District Court (Oslo tingrett), and on appeal at the Borgarting Court of Appeal (Borgarting lagmannsrett), both dismissed the application, before having access to the redacted annex.
The Supreme Court of Norway’s referral therefore asks the following two questions of the EFTA Court:
In disputes concerning access to evidence in cases concerning remedies relating to trade secrets, does EEA law require national courts to weigh one party’s right to remedy breaches of its alleged trade secrets against the other party’s right to protection of its alleged trade secrets?
In that connection, does EEA law place an obligation on national courts to obtain and examine disputed evidence which may contain trade secrets in order to determine whether that evidence is to be adduced in the proceedings, or is it sufficient that national courts may, at their discretion, obtain the evidence in question in those cases where they deem it necessary in order to conduct a proper assessment of whether the evidence is to be adduced?
The case number in the national proceedings is No 24-16726SIV-HRET, whilst the proceedings before the EFTA Court in Case E-14/24, Elmatica AS v Confidee AS and Vidar Olsen can be followed here.