Background

Following initial uncertainty, the principles to be applied when considering requests for access to written pleadings and evidence under Rule 262.1(b) of the UPC Rules of Procedure have become clearer following the decision of the UPC Court of Appeal in Ocado v Autostore.

However, it had until recently not been considered whether an applicant for access to written pleadings and evidence could be held liable for the costs of the parties to proceedings in the event that their request was unsuccessful. Two recent decisions of the UPC Courts of First Instance would now appear to confirm that such costs awards are not applicable to requests for file access under Rule 262.1(b) of the UPC Rules of Procedure.

ORD_59519/2024

In the earlier decision, issued 08 January 2025, the Paris Central Division considered an application for costs filed by a party to proceedings following an unsuccessful request for file access filed by a third party. The division noted that, according to Rule 150 of the UPC Rules of Procedure, a decision to award costs may be awarded only after a “decision on the merits”.

The division considered that a “decision on the merits” must be understood as a decision that concludes litigation proceedings.

An application for access to pleadings and evidence was, in contrast, held by the division to serve the purpose of increasing transparency of judicial activity, and not for the protection of interests of the parties to the dispute.

The Paris Central Division thus held that an order deciding on a request under Rule 262.1(b) does not represent a “decision on the merits” and accordingly dismissed the application for a cost decision.

ORD_42124/2024

In a later decision, issued 21 January 2025, the Nordic Baltic Regional Division also held there to be no legal basis for a costs decision following a request for register access, but on different grounds. The division in this case firstly noted that the wording of Article 69(1) of the UPC Agreement (which provides for the possibility of legal costs being borne by the unsuccessful party) mirrors that of Article 14 of the Enforcement Directive (2004/48/EC), an EU directive seeking to harmonise the way in which IP rights are enforced within the Union. The division reasoned that since the Enforcement Directive does not contain any provisions concerning public access to court files, there is no evidence that Article 69(1) was intended to apply to requests for file access by members of the public.

The division also noted that Article 69(1) limits the costs recoverable by the successful party to a ceiling set in the Rules of Procedure, but that no such limit for requests under Rule 262.1(b) has been adopted in these rules. The division further examined the language of Rule 262.1(b) itself, noting that this provision states that a decision on whether to grant file access is taken only after consulting the parties. This language was interpreted by the division as indicating that the parties to the main proceedings are not considered parties to the proceedings concerning the request for access to documents. The Nordic Baltic Regional Division therefore dismissed the application for reimbursement of legal costs.

Summary

Despite the different reasoning applied by the two divisions, they both reached the conclusion that there is no legal basis in the UPC Agreement to hold a member of the public liable for costs incurred by the parties to proceedings when responding to a request for written pleadings and evidence under Rule 262.1(b). These decisions provide some welcome reassurance for third parties who may be considering such requests, especially where a successful outcome is uncertain.

Case details at a glance

Decision level: Court of First Instance, Paris Central Division
Order: ORD_59519/2024
Parties: Meril Italy srl, Meril Life Science Private Limited, Meril GmbH
Date: 08 January 2024
Decision: dycip.com/upc-ord-59519-2024