UPC Court of Appeal: Procedural Decision: Confidentiality of Information

The plaintiff filed two actions in April 2025 against the defendant for patent infringement in the field of 4G+ technologies and simultaneously applied for the protection of confidential information, in particular license agreements. The plaintiff sought to prevent the defendant's employees from accessing this information and requested an "External Eyes Only" regime. The court of first instance granted access to three named employees of the defendant. The plaintiff appealed this decision. When deciding on measures to protect confidential information and assessing their proportionality, the Court must take into account the right to an effective remedy and a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either party resulting from the granting or rejection of such measures. Where one of the parties is a legal person, it should be entitled to nominate natural persons to be included in the confidentiality club to ensure the proper representation of the legal person, subject to judicial control to preserve the protective purpose of the access restriction. The fact that a person is employed by a party is, in principle, not sufficient to deny them access. A restriction to external persons would impair the ability to be represented in the proceedings. Therefore, the party's interest in having at least one of its own employees gain access generally prevails. Neither the UPCA nor the RoP provide for personal liability of a party's representative in the event of a breach of a confidentiality order. Instead, a penalty may be imposed on the party. Even if only the party is sanctioned, this does not release the representative from their obligations. In case of misconduct, the Court may exclude the representative from the proceedings (UPC 26.1.2026, CoA 755/2025, CoA 757/2025, CoA 791/2025, CoA 793/2025).