UPC-series: The veil of secrecy over filed documents

It is usually said that the public character of a Court’s proceedings enforces the sense of justice and serves the principle of transparency. While the EPO publicizes all its files and everyone can have access to these documents with minor restrictions, on the other hand the UPC restricts the public from getting such an access to the documents of the proceedings. Pursuant to Rule 262 RoP written pleadings and evidence that are lodged at the Court and recorded by the Registry can be only available to the public upon reasoned request to the Registry. The decision is taken by the judge-rapporteur after consulting the parties.

According to said Rule, a party may also request that certain information of the written procedure be kept confidential, but it has of course to indicate the reasons of preserving such a high level of confidentiality. A member of the public may lodge an application in order to waive the exclusion from allegedly confidential documents, by providing detailed information and reasons on why these should not be confidential, as well as the purpose for getting such an access.

For example, recently, a member of the public asked for access based on reasons of education and training, regarding the Sanofi vs. Amgen case. The motion was dismissed by the Judge rapporteur in the Central Division of Munich (Order no. UPC_CFI_1/2023), as the aforementioned reasons are not considered legitimate ones to acquire access. The same was the decision in the Astellas vs. Healios, Riken, Osaka University case, as the judge rejected the motion (Order no. UPC_CFI_75/2023) based on the same reasoning. In a third case before the Local division of Milan, namely Oerlikon textiles GmbH & Co KG vs. Himson Engineering Private Limited, the motion was made from the defendant’s lawyer. The motion was once again rejected (Order no. UPC CF1 240/2023), as the lawyer of the defendant is not considered as a third party under Rule 262(1) RoP.

The secrecy of the UPC has been intensively criticized from its early operation and many persist on permitting access in a wider way in the future. Of course, it should be noted that all the decisions and orders of the Court are public, and regularly uploaded on the website of the Court.