Key takeaways
Evidence production applications (Art. 59 UPCA, R. 190 RoP) require four cumulative conditions: reasonably available evidence, specification and control, confidentiality protection, and proportionality.
The requesting party must have presented evidence “reasonably available” in support of its claims.
This condition is assessed on a prima facie basis and is twofold, considering
(a) whether the requesting party presented reasonably available evidence in support for their assertions, and
(b) whether the requested evidence could enable the requesting party to conclusively prove those assertions.
The evidence to which access is requested must be “specified” and “lie in control” of the other party.
The other party’s “confidential information” must be “protected”.
Any order to produce evidence must satisfy the requirement of “proportionalty, equity, and fairness”, assessment of which is likewise twofold:
(a) the timing of the application considering the stage of proceedings, and
(b) a final assessment of each individual request for evidence.
(Following LD The Hague, Order of 14 October 2024, Winnow v Orbisk)
No obligation to exhaust other avenues before requesting evidence — the prima facie threshold prevents circularity (Art. 59 UPCA, R. 190 RoP).
Citing LD Hamburg (10x Genomics v Vizgen) and LD Paris (Bostik v Henkel), the Court held that Art. 59 UPCA does not require a party to first exhaust all other available means. Demanding conclusive proof before ordering production of the very evidence needed to establish the assertions would be circular.
Confidentiality is not a bar but a condition — R. 262A RoP provides the framework for proportionate protections.
Merely asserting that evidence is confidential and internal is insufficient to deny a production request. The Court granted the requests for the production of evidence conditional on the defendants submitting personal details of independent experts and one designated natural person, after which a formal R. 262A RoP confidentiality order should be issued.
Division
LD Brussels
UPC number
UPC_CFI_1357/2025; UPC_CFI_629/2025
Type of proceedings
Infringement Action
Parties
Claimant (Infringement Action) / Respondent (R. 190 RoP Application): Establishment Labs S.A.
Defendants (Infringement Action) / Applicants (R. 190 RoP Application) / Claimants (Counterclaim for Revocation): GC Aesthetics Parentco Limited, Nagor Limited, GC Aesthetics Management Limited, GC Aesthetics (Distribution) Limited, GC Aesthetics (France) SAS, Eurosilicone SAS, GC Aesthetics Italy S.R.L., GC Aesthetics GmbH, GC Aesthetics Spain S.L.U., Global Consolidated Aesthetics (UK) Limited, GC Aesthetics Holdings Limited, GC Aesthetics Finance Limited, Romed N.V.
Patent(s)
EP 3 107 487 B1
Jurisdictions
UPC
Body of legislation / Rules
Art. 59 UPCA, Art. 82(4) UPCA, Art. 41(3) UPCA, Art. 42 UPCA, Art. 73 UPCA
R. 172 RoP, R. 175 RoP, R. 190 RoP, R. 190.7 RoP, R. 262A RoP, R. 284 RoP, R. 354.3 RoP, R. 220.2 RoP, R. 158.3 RoP, R. 9 RoP
Art. 6 Directive 2004/48/EC (Enforcement Directive)
