LD The Hague, 4 March 2024, Order on confidentiality regarding financial information, UPC_CFI_239/2023

Claimants applied for a confidentiality order (R. 262A RoP) regarding financial information which did not relate to the main action but to Defendant’s request for security for costs (R. 158 RoP). The LD The Hague decided that access to confidential information could be limited to Defendant’s legal representatives only and was thus not made accessible to a natural person of Defendant.

Financial information that is not in the public domain and concerns the sales funnel and (confirmed or prospective) investments that have not yet been made public qualifies as (other) confidential information, especially vis-à-vis a competitor.

Unprotected disclosure of redacted information to (employees of) the competing Defendant is likely to distort competition which should be prevented, Art. 42.2 UPCA. Since the redacted information did not affect Defendant’s position in the main action and since the Court was able to take a decision on the R.158 application without considering the redacted information, access to attorneys eyes only was required.

While the wording of R.262A.6 RoP which is identical to the wording of Art. 9 (2) trade secrets Directive (EU) 2016/943 seems clear (persons having access to the information “shall include, at least, one natural person from each party“), it is not clear, whether this rule always applies. Rather, it could be limited to cases wherein “access to such evidence be restricted” in contrast to the other alternatives of R. 262A.1 RoP according to which “information” may be “restricted or prohibited or access to such information (…) be restricted to specific persons“. Art. 58 UPCA and R. 262A RoP relate to “confidential information” which is a broader term than “trade secret” in the trade secrets Directive. Also, different Member States have implemented the trade secrets Directive differently, e.g. Germany and Belgium versus the Netherlands. This result offers more flexibility to align access with the circumstances of the case and the type of confidential information concerned and thus to ensure proportionality, fairness and equity, especially considering whether the confidential information relates to the essence of the case or is a mere side issue (like in the case at hand).