UPC CFI, LD Brussels, 12 November 2025: Review of ex parte orders to preserve evindence and for inspection
13-03-2026 Print this page
Ex parte orders to preserve evidence and for inspection confirmed (R 197.3 RoP. R. 199 RoP).
A double assessment determines the scope of review proceedings.
First, the Court should assess whether it has “rightly” decided to issue the “ex parte” Order.
The Court should then assess whether the Orders are to be confirmed, modified or revoked. Facts and evidence to be taken into consideration include all facts and evidence presented to the Court by the parties. (Rule 194.3(b) RoP). For both assessments the Court should place itself on the date of issuance of the Orders.
The scope of the review assessment does not pertain to the actual execution of the Orders and/or the outcome of such execution or any information gathered during such execution.
As such, the general purpose of an order to preserve evidence/for inspection is to:
a) anable an applicant who has "presented reasonably available evidence to support the claim" to access additional information that is not publicly available to prove the infringement and the acts constituting infringement, and
b) If granted, based on the preserved information, enable the applicant to evaluate the reliable prospects of success in initiating infringement proceedings.
“About to be infringed” in Art. 60 UPCA does not have the same meaning as “urgency” (in R. 194(2) RoP) or “unreasonable delay” in R. 211.4 RoP: must be a plausible a risk of infringement and it must be apparent that it will occur in the future. According to Art. 60(5) UPCA measures shall be ordered ex parte, where delay is likely to cause irreparable harm, or where there is a demonstrable risk of evidence being destroyed.
“Ugency” is only one of the elements that the Court should consider when exercising discretionary powers and, therefore, cannot be considered a compulsory precondition for granting the requested measures “ex parte”.
