Court of Appeal, July 23, 2024, order on appeal, UPC_CoA_177/2024

The legitimate purpose of the procedure for the preservation of evidence or the inspection of premises (Art. 60 UPCA, R. 192 et seq.) includes the use of the evidence to decide whether to initiate proceedings on the merits (R. 196.2 and 199.2 RoP) and to determine whether and to what extent the evidence will be submitted in these proceedings. Therefore, an application for the preservation of evidence and the inspection of premises implies a request to disclose to the applicant the outcome of the measures, including the report.

The granting of a request for preservation of evidence or inspection of premises does not imply an unconditional order to disclose the evidence to the applicant. Pursuant to Art. 60(1) UPCA, Art. 7(1) Directive 2004/48/EC, the order must be subject to the protection of confidential information. The court must hear the other party before deciding whether and to what extent the evidence should be disclosed to the applicant. This requires that the court gives the other party access to the evidence collected and the opportunity to request confidentiality of certain information. The fact that the other party did not file a remedy against the order for the preservation of evidence or inspection of premises cannot be considered as tacit consent to the disclosure of evidence. The party must still be heard on the request for disclosure.

If the other party requests confidentiality, the court must also hear the applicant. The applicant must get the opportunity to respond in a manner that respects the potential confidentiality interests of the other party. The court may do this by granting access only to representatives of the claimant whom the court has authorised (pursuant to R. 196.3(a) RoP) to be present during the performance of the measures.