Rule 192 – Application for preserving evidence

1. An Application for preserving evidence may be lodged by a party (within the meaning of Article 47 of the Agreement) (hereinafter "the applicant") at the division where the applicant has commenced infringement proceedings on the merits. If the application is lodged before proceedings on the merits have been started it shall be lodged at the division where the applicant intends to start proceedings on the merits.

2. The Application for preserving evidence shall contain:

(a) particulars in accordance with Rule 13.1(a) to (i);

(b) a clear indication of the measures requested [Rule 196.1], including the exact location of the evidence to be preserved where it is known or suspected with good reason;

(c) the reasons why the proposed measures are needed to preserve relevant evidence; and

(d) the facts and evidence relied on in support of the Application. Where main proceedings on the merits of the case have not yet been started before the Court, the Application shall in addition contain a concise description of the action which will be started before the Court, including an indication of the facts and evidence which may be relied on in support.

3. Where the applicant requests that measures to preserve evidence be ordered without hearing the other party (hereinafter "the defendant"), the Application for preserving evidence shall in addition set out the reasons for not hearing the defendant having regard in particular to Rule 197. The applicant shall be under a duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant. The application shall not be entered on the register until notice has been given to the defendant pursuant to Rule 197.2.

4. Where the Application for preserving evidence is lodged after main proceedings on the merits of the case have been started before the Court, the Application shall be drawn up in the language of the proceedings. Where the Application is lodged before main proceedings on the merits of the case have been started before the Court, Rule 14 shall apply mutatis mutandis.

5. The applicant shall pay the fee for the Application for preserving evidence, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.

Relation with Agreement: Article 60

Case law

Court of Appeal

IPPT20240723, UPC CoA, PMA v AWM
Application to preserve evidence or inspect premises implies a request to disclose the outcome of the measures (evidence) to the applicant and the procedure aims not merely to preserve evidence but also to disclose the evidence to the applicant (Article 60 UPCA, Rule 192 et seq. RoP). Order to preserve evidence or inspect premises must be subject to the protection of confidential information (Rule 196 RoP). Where the evidence may contain confidential information, this entails that the Court must hear the other party before deciding whether and to what extent to disclose the evidence to the applicant. The Court must hear the other party on the request for disclosure even if this party has decided not to file a remedy against the order to preserve evidence or inspect premises. For the revocation or otherwise ceasing to have effect of the measures (Article 60(8) UPCA) the Court must, as a general principle, specify in its order a time period that starts to run from the date of disclosure of the evidence to the applicant or from the date on which the Court has made a final decision not to grant the applicant access to the evidence.

Court of First Instance

IPPT20230921, UPC CFI, LD Brussels, OrthoApnea

Ex parte order to preserve evidence at symposium (article 60 UPCA). Urgency and irreparable because evidence may soon no longer be available in the territory. Ex parte (Rule 197(1) RoP): The applicant has sufficiently explained that irreparable damage may be caused to if the defendant is heard, because it is feared that in that case the infringing products will no longer be available at the symposium (Rule 192(3) RoP). No reason for a confidentiality regime as no seizure of confidential materials is sought and seizure will be made of materials publicly available at a symposium. No legal basis for order that the defendant has to cooperate. Counsel and a technical adviser of applicant allowed to be present.

IPPT20230613, UPC CFI, LD Milan, Oerlikon v Himson II
Ex parte order to preserve evidence at trade fair (Article 60 UPCA, Rule 192 RoP). Extreme urgency exists considering that the international trade fair where the offending conduct is taking place started on 8.6.2023 and ends, tomorrow, on 14 June 2023. The prerequisites of Articles 197(1) RoP and 60(5) UPCA for the ex parte granting of the measure are met, since (a) time constraints do not allow the parties to be convened before the end of the trade fair tomorrow; (b) there is a risk that the evidence will no longer be accessible to the claimant once the exhibition is over, since the defendant is based abroad and the documents indicated are easy to conceal and/or destroy. Payment of fees (Rule 192(5) RoP, Rule 371(1) RoP: The Tribunal notes that pursuant to Section 371(3) RoP, in cases of urgency, when advance payment is not possible, the applicant's counsel must pay the fixed contribution within the time limit set by the Tribunal: in light of this limitation, the applicant must be ordered to pay this contribution by 15 June 2023.