We recently discussed two orders by the Munich Division where third-party access requests based on general interest were denied by the Court. In the matter Ocado v. AutoStore (UPC_ CFI_11/2023), the Nordic-Baltic Regional Division recently issued an order which is irreconcilable with the earlier orders of the Munich Central Division. It granted access to submissions of the parties based on a request of purely informatory nature. This is the first deviating case law between different divisions of the UPC. Ocado has appealed the decision (UPC_CoA_407/2023), so the Court of Appeal will have the opportunity to clarify the law on file inspection, soon. A date for the appeal decision is not yet known.
Case and Decision
The order of the Court of First Instance of the UPC’s Nordic-Baltic Regional Division in Stockholm was delivered on 17 October 2023. It partially granted the application pursuant to Rule 262.1(b) for access to certain documents. The applicant cited an interest in knowing how the claim was drafted as well as a broader public interest in order for everyone to better understand the evolving practice at the UPC.
Ocado opposed the application, arguing there was no legal basis for requesting the publication of any orders as these were automatically published after a while. Thus, there was a lack of any legal basis for an expedited publication by means of request. Also, the applicant did not give a sufficiently concrete reason required by Rule 262 as decided recently by the Munich Central Division in order to gain access to the parties‘ pleadings. A third party should not freely be able to profit from expensively prepared legal statements, especially while their intended application remained unclear.
The Court refused to grant access to any orders made in the case given they will be published regularly and to any orders in parallel cases between the same parties in proceedings in front of the Dusseldorf and Milan Local Divisions due to lack of jurisdiction for these cases. However, the court granted access to pleadings of the parties, specifically to the statement of claim (whereas personal data is to be redacted).
In its order the court first refers to Art. 10 UPCA which highlights the public nature of the register, while Art. 45 UPCA extends this publicity to the entire proceedings unless they are confidential. Art. 52 UPCA then clarifies that proceedings include the written, interim and oral procedure. From this, the Court derives a general principle of transparency that extends to all parts of the proceedings unless they are declared confidential upon request according to Rule 262.6.
According to the order, the statement of claim will only be made available after expiry of the appeal deadline to allow Ocado to appeal the order and benefit from its suspensive effect. Ocado has now filed an appeal (UPC_CoA_407/2023).
Comment
The reasons given in the order of the Nordic-Baltic Regional Division are irreconcilable with the position taken by the Munich Central Division. This is the first situation – but certainly not the last – in which two divisions of the Court of First Instance disagree on the application of the law. Given the appeal in at least one of the cases decided by the Munich Central Division as well as of the decision in the Ocado case, the Court of Appeals in Luxembourg will soon shed light on the future practice of access to submissions and evidence filed by the parties.
From a legal perspective, the requirement of a “credible explanation” applied by the Munich Central Division is not explicitly mentioned in either the RoP or the UPCA. However, as the Munich Central Division convincingly argued, if the applicant can just give any explanation, then the requirement of a “reasoned request” might as well not exist at all. This is not compatible with either the legislative history of Rule 262 or its clear inner systematic distinction of an automatic publication of decisions and orders versus the restricted publication of written pleadings and evidence.
The Nordic-Baltic Regional Division also appears to subdivide Court documents into confidential and public information. It argues that documents shall, in accordance with the UPCA, in general be public and only confidential, if declared as such upon party request. Merely looking at the wording of Art. 45 UPCA this could be a correct assessment. However, Rule 262 differentiates three categories:
- decisions and orders, which are always to be published,
- written pleadings and evidence, which may be published upon reasoned request,
- other documents not listed and are thus never published as there is no legal basis for their publication.
Apart from this there is the further possibility to restrict access to documents due to confidentiality issues, Rule 262.2. However, the question of confidentiality is to be assessed independently of the question of the “reasoned request” made by a party seeking access. The RoP clarify this expressly in paragraph 1 (emphasis ours):
Without prejudice to (…) confidential information according to paragraph 2
(a) decisions and orders made by the Court shall be published,
(b) written pleadings and evidence, lodged at the Court and recorded by the Registry shall be available to the public upon reasoned request to the Registry; the decision is taken by the judge-rapporteur after consulting the parties.
(…)
Thus, it does not seem to be in line with the structure of Rule 262 to consider the absence of a confidentiality request within the context of the – legally unrelated – question of the existence of a reasoned request for access to pleadings and evidence. The legislator specifically chose to separate those two questions and thus deviates from the general principle of publicity laid out in Art. 45 UPCA.
It will be interesting to see which approach will prevail at the Court of Appeal.
