CoA, January 26, 2026, Order concerning a confidentiality request under R. 262A RoP, UPC_CoA_755/2025, UPC_CoA_757/2025, UPC_CoA_791/2025, UPC_CoA_793/2025

When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures.

In the event that one of the parties is a legal person, that party should be able to propose a natural person or natural persons who ought to form part of that circle of persons entitled to have access so as to ensure proper representation of that legal person, subject to appropriate judicial control to prevent the objective of the restriction of access to evidence and hearings from being undermined.

Whether the person proposed by a party may be granted access to the confidential information must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.

The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. The exclusion of employees would severely restrict a party’s freedom to choose who will represent it in the proceedings. Furthermore, an employee of a party will often be better positioned to present the party’s view, provide and review relevant information and instruct the representatives than persons external to the party’s organization. Consequently, access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. The interest of the party in having full access for, at least, one of its employees therefore, as a general rule, outweighs the interests of the applicant, even if imposing an ‘External Eyes Only’ regime would be preferable from the perspective of safeguarding confidentiality.

Furthermore, where the confidential information concerns a licence agreement between a party and a third party, the potential harm for this third party resulting from allowing access to one or more employees of the other party to the proceedings, may be mitigated by requiring said employee(s) to refrain from involvement in patent licensing negotiations with the third party for a certain period. Such a bar prevents said employee(s) from using such confidential information in these negotiations, whether intentionally or not. It thereby facilitates compliance with the confidentiality regime and provides all parties with a greater degree of legal certainty, as the involvement of the employee(s) in negotiations is easier to establish than the employee’s use – advertent or otherwise – of the confidential information in such negotiations.

Nothing in the UPC Agreement nor in the Rules of Procedure provides for the liability of the UPC representative of a party in the event of a breach of a duty of confidentiality ordered by the Court under R. 262A RoP. Rather, in the event of a breach of the confidentiality obligation ordered by the Court, a penalty payment may be imposed on a party to the proceedings.

Although it is the party that may be sanctioned for non-compliance with the confidentiality obligation ordered by the Court through the imposition of a penalty payment, and not the party’s legal representative in its own – whether professional or personal – capacity, it does not release said representative from its rights and obligations under the UPC Agreement and the Rules of Procedure. Said obligations include the requirements to comply with the code of conduct adopted pursuant to R. 290.2 RoP as well as the requirements of the proper administration of justice, failing which the Court may exclude said representative from the proceedings by way or order under the conditions set forth under R. 291.1 RoP.