22. UPC Pills – The public access to case document

Is public access to case documents possible in the UPC system? And when is it possible?

Let’s analyse the access to case document with today's pill analysing a recent UPC decision on this topic.

The UPC system regulates the public access to case documents under Rule 262 of the Rules of Procedure (RoP), which provides for the possibility to publicly access to the Register, i.e. written pleadings and evidence, lodged at UPC, upon reasoned request to the Registry and following the relevant decision taken by the Judge Rapporteur after consulting the parties.

Limits to public access are also set out in R. 262:

-????????? Public access is possible “Without prejudice to Articles 58 and 60(1) of the Agreement and subject to Rules 190.1, 194.5, 196.1, 197.4, 199.1, 207.7, 209.4, 315.2 and 365.2, and following […]” (Paragraph 1)

-????????? “A party may request that certain information of written pleadings or evidence be kept confidential and provide specific reasons for such confidentiality. To this end content of the register is made publicly available according to paragraph 1 (b) only 14 days after it has been available to all recipients. The Registrar shall ensure that beyond this time period information subject of a request for confidentiality shall not be made available pending an Application pursuant to paragraph 3 or an appeal pursuant to Rule 220.2. When a party lodges a request that parts of written pleadings or evidence shall be kept confidential, he shall also provide copies of the said documents with the relevant parts redacted when making the request” (Paragraph 2)

Nevertheless, R. 262 provides a counterbalance to the aforementioned last limit to public access set out in Paragraph 2. Indeed, a member of the public is entitled to lodge an application for an order to make available to the applicant any information which has been excluded from public access due to a party’s request pursuant to Paragraph 2.

Such a system is clearly intended to balance the confidentiality of information and personal data with the transparency of proceedings. Yet during the creation of the UPC system, much interest raised about the guarantee of process transparency as the pivot of the UPC proceedings.

However, it seems that the emerging jurisprudence within the UPC is undermining the principle of transparency that should have characterised the new system. In fact, in a recent decision, the UPC Court of Appeal ruled that members of the public may not access court documents without legal representation.

The case concerns the dispute between Ocado Innovation Limited (claimant in the main proceedings before the Court of First Instance) and no. 8 Autostore companies (as defendant in the main proceedings before the Court of First Instance).

In November 2023, Nordic-Baltic Regional Division ordered the access of a third party to the statement of claim pursuant to R. 262. The claimant in the main proceedings before the Court of First Instance (Ocado Innovation Limited) appealed the order and applied for suspensive effect, inter alia claiming the lack of legal representative of the third party.

A hearing took place during which the partis of this appeal proceeding – Ocado as Appellant, the Respondent (i.e. the third party who made the request for access to the statement of claim in the main proceeding) and the Autostore companies – were given the opportunity to be heard about whether the Respondent needs to be represented. After said hearing, the Court of Appeal ruled that “According to R.8.1 RoP, ‘A party‘ shall be represented in accordance with Article 48 UPCA unless otherwise provided by these Rules. Article 47 UPCA has the heading ‘Parties’. This Article 47 UPCA however only refers to ‘actions’, which is to be understood as actions mentioned in Article 32 UPCA.”

Nevertheless, the Court then stated that “The Court of Appeal does not consider this requirement to be unnecessarily burdensome. The rationale behind the duty to be represented by a representative is to protect parties when it comes to the legal consequences of procedural measures. Furthermore, it ensures the proper conduct of proceedings. For this purpose, representatives are subject to special duties (R.284 and R.290.1 RoP). The access to the written pleadings and evidence requires a reasoned request. It is appropriate that representation is required for this purpose…”

Furthermore, the Court referring to the application for public access specified that “Following a reasoned request to the Registry by a member of the public that written pleadings and evidence, lodged at the Court and recorded by the Registry, shall be made available, the decision is taken by the judge-rapporteur after consulting the parties. (…) There is thus an adversarial phase where the judge-rapporteur consults the parties about the request. Next, the judge-rapporteur decides on access to written pleadings and evidence, which includes adjudication on the request, on personal data protection and on confidentiality. Decisions can be appealed”.

Then the Court of Appeal ruled as follows:

1)????? the Respondent shall, within 14 days from service of the order, instruct an authorised representative;

2)????? a Statement of response should be lodged within the same period;

3)????? The parties have been called to an oral hearing on 12 March 2024.

We will see how the case evolves. As a matter of fact, the Court's decision is somewhat surprising and greatly narrows the transparency of the UPC and the right for access to the documents of the proceedings.

The relevant order has been published on the official UPC website and can be reached through the following link: https://www.unified-patent-court.org/sites/default/files/upc_documents/Order%20on%20representation%208%20February%202024%20signed_Redacted.pdf.

The article is by Mattia Dalla Costa, Alessia Ferraro and Anna Iorio.