UPC: the Nordic-Baltic RD on third parties’ access to pleadings

By order dated 17 October 2023, the Nordic-Baltic Regional Division of the UPC granted access to the parties’ pleadings to a third party (the “Applicant”) (ord. 543819/23 – UPC_CFI 11/2023, Ocado Innovation vs Autostore).

Specifically, the Applicant requested access to the statement of claim, any orders made in this case and any orders made in the parallel cases between the same parties at the local divisions in Düsseldorf and Milan. According to the decision, “in support of the request, the applicant stated, inter alia, that he was interested to see how the claim filed in the Nordic-Baltic division was framed, particularly since it was filed in parallel with cases in other divisions, and that he believes there is broader public interest in this information being made available for public scrutiny and discussion as the new court system launches and develops”.

The request was based on the following provisions:

-       Art. 45 UPCA: “The proceedings shall be open to the public unless the Court decides to make them confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in the general interest of justice or public order”;

-       Rule 262 RoP:

1.    “(…) following, where applicable, redaction of personal data within the meaning of Regulation (EU) 2016/679 and confidential information according to paragraph 2:

a)    decisions and orders made by the Court shall be published,

b)    written pleadings and evidence, lodged at the Court and recorded by the Registry shall be available to the public upon reasoned request to the Registry; the decision is taken by the judge-rapporteur after consulting the parties”.

2.    A party may request that certain information of written pleadings or evidence be kept confidential and provide specific reasons for such confidentiality. (…)” 

The judge-rapporteur, after hearing the parties, partially granted the application based on the following reasons:

i)        under Art. 10 UPCA, the UPC’s register shall be made public, but it is not clear if this also applies to its content, including pleadings. However, Art. 45 UPCA states that proceedings shall be open to the public unless the Court decides to make them confidential, and this is not limited to decisions, orders or oral hearings, but refers to the entire proceedings. As proceedings consist of a written, an interim and an oral procedure (art. 52 UPCA), the written procedure shall also be open to the public;

ii)      the “reasoned request” required by R. 262.1(b) means that the applicant needs to provide a credible explanation for why he/she wants access to the pleadings or evidence;

iii)     this interpretation is in line with R. 262.6, which clarifies that even if a party requests, under R. 262.2, that certain information on written pleadings or evidence be kept confidential, the Court shall allow the application for access unless legitimate reasons given by the party concerned for confidentiality outweigh the interests of the applicant to access such information.

In the specific case, the Court noted that:

i)               none of the parties had submitted a request for confidentiality pursuant to R. 262.2;

ii)              it was not necessary to make the document confidential in the interests of other affected persons, or in the general interest of justice or public order;

iii)            the Applicant had provided a credible explanation for why he wanted access to the statement of claim;

i)               the orders issued in the specific case were instead already published on the UPC website; and

ii)              the judge-rapporteur could not decide on the orders issued in other cases.

Consequently, the Applicant was granted access to the statement of claim but not to the Court’s orders.

However, the Court also noted that “the question of access to documents in the register is controversial, and there is room for different interpretations. (…) Therefore, the Court finds it appropriate to order that the statement of claim shall be sent to the applicant on 7 November 2023. This way, the claimant is given sufficient time to appeal and apply for suspensive effect, in accordance with Rule 223 RoP”.

Indeed, the Munich Central Division had previously rejected similar requests in two different cases:

-       on 20.09.2023 in the Sanofi-Aventis v. Amgen case, where the applicant had grounded his request on his wish to form an opinion on the validity of the patent; and

-       on 21.09.2023 in the Astellas Institute v. Healios K.K, Riken and Osaka University case, where the applicant had grounded his request on “reasons of education and training”.

This clearly confirms the need for the UPC divisions to reach a consistent interpretation of R. 262.1(b), and in particular what amounts to a “reasoned request” pursuant to it.

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