Rule 262A.1 of the UPC's Rules of Procedure (RoP) states that a party may make an application for certain information contained in its pleadings or the collection and use of evidence in proceedings may be restricted or prohibited or that access to such information or evidence be restricted to specific persons (emphasis added). This rule can be used to seek protection for commercially sensitive information disclosed to the UPC as part of proceedings. Further, Rule 262A.6 (RoP), which is identical to Article 9(2) of the Directive (EU) 2016/943, states that the number of persons referred to in Rule 262A.1 shall include at least one natural person from each party (emphasis added).
In an order dated 4 March 2024 issued by the Local Division of the Court of First Instance at The Hague (UPC_CFI_239/2023), the judge-rapporteur Kokke decided that a reading of Rule 262A.1 was possible such that access could be prohibited completely ("...or prohibited or..."), and that arguably Rule 262A.6 would thus not apply in such cases, opening the way to restrictions of access to confidential information to the parties' representatives only and to the exclusion of (other) natural "persons". This view paves the way for disclosure to be made on an "Attorney Eyes Only" basis.
Furthermore, judge Kokke noted that the EU trade secrets directive (Directive (EU) 2016/943) is implemented differently in different Contracting Member States. She concluded that the discussed variations in interpretation leave room for more flexibility to align access with the circumstances of a case and the type of confidential information concerned. In this case, the Court of the Local Division of the Hague Court aligned their approach with that of the Dutch national courts, whereby access to such information can be limited to attorneys only where appropriate and in line with the principles of a fair trial and so that disclosure to a natural person of the party receiving the confidential information is not mandatory.
This decision, as well as accompanying comments made by the judge-rapporteur, may indicate a divergence in approaches to Rule 262A applications with that previously adopted by the Munich Central Division, the Hamburg Local Division, the Düsseldorf Local Division and the Paris Local Division. Each of these divisions granted access to confidential information to specified natural persons. It is to be hoped that this seeming divergence will be resolved by the Court of Appeal in a commercially suitably important case.
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