A recent order of the UPC Court of Appeal in UPC_CoA_404/2023, during the ongoing appeal proceedings in Ocado v Autostore, represents the first interpretation of Rule 313.1 RoP, and provides some insight as to how strictly the required standard of a “legal interest” may be applied.

The order

As we have reported previously, the appeal proceedings in Ocado v Autostore concern the standard to be applied when considering whether a third party should be granted access under Rule 262.1(b) RoP to the pleadings and evidence filed in connection with a particular case. Following Ocado’s appeal against the decision of the Nordic-Baltic Regional Division to allow file access, two third parties filed applications to intervene under Rule 313 RoP on the grounds that the UPC Court of Appeal’s decision would affect the outcome of their own applications for file access in other cases currently being heard before the UPC.

Rule 314 RoP provides that the parties to the proceedings (here Ocado and Autostore) shall be given an opportunity to be heard before a decision is taken as to the admissibility of the application to intervene. Ocado argued, with reference to the legislative background of the UPC Rules of Procedure, that Article 40 of the Court of Justice of the European Union (CJEU) statute had an influence on the requirements for intervention to be applied at the UPC. Ocado went on to refer to the CJEU’s decision in C 220/21, where it was held that a party merely having an interest in the pleas in law and arguments put forward in a particular case was not sufficient for an intervention to be admissible under Article 40 of the CJEU statute. Rather, the party would need to show that it had a direct interest in the forms of order sought in the particular case. Ocado also referred to the courts of several contracting member states such as the Netherlands and Sweden, where an intervener must have a direct factual or legal interest in the outcome of the proceedings. Autostore did not have any objections to the applications to intervene.

The UPC Court of Appeal reasoned along similar lines to Ocado in reaching its decision. Specifically, the court held that a “legal interest in the result of an action” within the meaning of Rule 313.1 RoP was a substantive test and means “a direct and present interest in the grant by the court of the order or decision as sought by the party, whom the prospective intervener wishes to support and not an interest in relation to the pleas in law put forward”. A mere similarity between the prospective intervener’s situation and that of one of the parties was held to provide only an indirect interest, insufficient to render an application to intervene admissible. The court further commented that whilst the outcome of this action before the UPC Court of Appeal may have an impact on the legal assessments that are to be made in the cases in which the third parties are involved, it will be because of the guiding effect of case law alone. This impact did not equate to a “direct and present interest” and thus was not sufficient to support an intervention within the meaning of Rule 313.1 RoP.

Comment

It appears from the order of the UPC Court of Appeal that the bar applied at the UPC when considering whether a third party has a “legal interest” under Rule 313.1 RoP in the result of a particular case is likely to be relatively high, following the strict standard applied for interventions at the CJEU. This means it is likely that we will see interventions being admitted only under relatively limited circumstances, in particular where the third party in question is able to make a strong case for why they have a direct interest in the order sought in a particular case.

We will report on further developments in this area as they arise.

Case details at a glance

Decision level: Court of Appeal, Luxembourg
Case number: UPC_CoA_404/2023
Date: 10 January 2024
Judgment type: Order
Parties: Ocado Innovation Limited vs Autostore AS [et al] v Mathys & Squire LLP & Bristows (Ireland) LLP
Type of action: Application to intervene (RoP 262.1(b))
Decision: https://dycip.com/upc-ocado-mathys-intervene-404-2023

Related case

C‑220/21: https://dycip.com/c-220-21