Ballinno v. Union des Associations Européennes de Football (UEFA), Kinexon GmbH & Kinexon Sports & Media GmbH, Order UPC Hamburg Local Division, 17 September 2024, Case no. UPC_CFI_151/2024
The Hamburg Local Division (LD) (Judge rapporteur Dr Stefan Shilling) has recently made an Order in the case of Ballinno B.V v. UEFA & Kinexon in respect of the public’s right to access documents in UPC proceedings.
In granting the applicant access to various documents, though in redacted form, the Court has furthered the line of UPC decisions on this point which seek to balance the rights of the public to access public proceedings and scrutinise the integrity of proceedings with the need to protect parties’ confidential information. This provides much needed additional information to those wishing to seek access to documents, and provides further reasoning as to the circumstances in which access may or may not be granted.
Background
On 18 April 2024, Ballinno made an application for provisional measures against the Defendants in the proceedings, and a number of pleadings and pieces of evidence were subsequently exchanged by the parties in respect of this application. On 3 June the Court rejected Ballinno’s application for provisional measures.
Powell Gilbert (“PG”), a law firm based in London (and for the purposes of the proceedings a member of the public), made an application requesting access to the various written pleadings and evidence relating to this application for provisional measures. Their arguments included that this was one of the first UPC decisions regarding an application for provisional measures, and they sought to gain a better understanding of the decision given by the Court in light of the arguments raised and evidence relied upon. PG also argued that access to the documents was necessary to allow public ability to scrutinise the Court’s handing of the application. PG was not seeking access to pleadings and evidence in relation to ongoing proceedings on the merits.
The parties to the proceedings were invited to comment on the application, and the Defendants confirmed that they did not object to the request, provided the documents were made accessible in a redacted version only. The Defendants claimed some information was highly sensitive technical data of Kinexon constituting internal company information, which must be kept confidential and be excluded from public access. They argued that this technical data is not publicly accessible and is protected from unauthorized access by special precautions, so should be classified as trade secrets requiring confidentiality.
Decision of the Court
The Hamburg LD considered the principles established by the UPC Court of Appeal in Ocado v Autostore (Ocado Innovation Ltd v. Autostore Sp Z.o.o. & Others, Court of Appeal, ORD_19369/2024), and determined that, in this case, access to the documents would be granted to PG.
Ocado v. Autostore confirmed that the general principle is that the UPC Register is public (Article 10 UPC Agreement (UPCA)) and that proceedings are public (Article 45 UPCA). It also set out that maintaining the integrity of UPC proceedings is critical, which requires consideration of the balance of interests of the parties; being the interests of a member of the public of getting access to the written pleadings and evidence, against the interests of the protection of confidential information and personal data. Even if access is granted the court may impose confidentiality or other restrictions on the use of the information.
Ocado v. Autostore also established that once first instance proceedings have ended, maintaining the integrity of proceedings is usually not as much of an issue, and so access will normally be favoured in those circumstances. Pending appeal proceedings are no reason to deny access to pleadings and evidence submitted in the first instance proceedings
In the present application, a number of factors weighed into the Hamburg LD’s decision, including:
– PG’s interest was general;
– The proceedings for the provisional measures application was terminated at the Court of First Instance and was now in appeal. Access on a general basis should therefore be granted to enable the public to scrutinise the decision made by the Court, how the Court has handled the case and arguments, and it’s reasoning. The integrity of any appeal pending proceedings cannot be a reason to deny access to pleadings and evidence submitted in the first instance proceedings.
– In considering whether PG had made a “reasoned request” and provided a credible explanation for why they wanted access to the pleadings and evidence, it was determinative to the Court’s decision that the 3 June decision was one of the first UPC decisions regarding an application for provisional measures, and in order to gain a better understanding of the decision PG needed to know the arguments brought forward by the parties and the evidence relied on.
However, the Court also mostly limited the access to the redacted versions of the documents provided by the Defendants, and held that the information said to be confidential by the Defendants is not to be provided and must be treated as strictly confidential vis-à-vis the public in accordance with Rule 262.2 RoP.
While the Court agreed that it is relevant to gain knowledge of the general lines of arguments and topics discussed by the parties, it stopped short of allowing access to the technical data and internal company information that is not publicly available. This included names and findings of the party experts on the technical details of the sensor used in the attacked embodiments, certain functionalities of the technical devices used the attacked embodiment, and the specific detailed comparison made for the purposes of patent infringement analysis. The Court held that the information provided would still allow the public to understand the general line of argument made by the parties, as well as the nature of evidence provided by the parties of the main proceedings, as well as scrutinise the working of the Court.
The order can be read here.