Article 6

1. Member States shall ensure that, on application by a party which has presented reasonably available evidence sufficient to support its claims, and has, in substantiating those claims, specified evidence which lies in the control of the opposing party, the competent judicial authorities may order that such evidence be presented by the opposing party, subject to the protection of confidential information. For the purposes of this paragraph, Member States may provide that a reasonable sample of a substantial number of copies of a work or any other protected object be considered by the competent judicial authorities to constitute reasonable evidence.

2. Under the same conditions, in the case of an infringement committed on a commercial scale Member States shall take such measures as are necessary to enable the competent judicial authorities to order, where appropriate, on application by a party, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.

UPC Case Law

IPPT20240924, UPC CoA, Guangdong OPPO v Panasonic
Order to produce evidence is not only open to a claimant, but also to a defendant, such as in the present case, an order to produce (counter)-evidence. (Article 59 UPCA, Rule 190 RoP, Article 6 Enforcement Directive). In case of a FRAND-defence an order to produce evidence (R. 190 RoP) must strike a balance between the defendant’s interest in obtaining evidence which may be useful for its FRAND-defence, and the interest of the other party and its contracting parties in protecting confidential information. Disclosure of evidence to be limited to what - at the discretion of the court – is strictly relevant, proportionate and necessary. Margin of discretion includes decision-making on the request in accordance with what the judge-rapporteur, the presiding judge or the panel has decided on the order in which issues are to be decided pursuant to R.334(e) RoP. The assessment of a request for an order to produce evidence may depend on the stage of the proceedings. Such a request may be considered not to meet the criteria of necessity, relevance and proportionality at one stage of the proceedings, but could be considered to meet those criteria at a later stage.