Article 9

1. Member States shall ensure that the parties, their lawyers or other representatives, court officials, witnesses, experts and any other person participating in legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret, or who has access to documents which form part of those legal proceedings, are not permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have, in response to a duly reasoned application by an interested party, identified as confidential and of which they have become aware as a result of such participation or access. In that regard, Member States may also allow competent judicial authorities to act on their own initiative.
The obligation referred to in the first subparagraph shall remain in force after the legal proceedings have ended. However, such obligation shall cease to exist in any of the following circumstances:
(a) where the alleged trade secret is found, by a final decision, not to meet the requirements set out in point (1) of Article 2; or
(b) where over time, the information in question becomes generally known among or readily accessible to persons within the circles that normally deal with that kind of information.

2. Member States shall also ensure that the competent judicial authorities may, on a duly reasoned application by a party, take specific measures necessary to preserve the confidentiality of any trade secret or alleged trade secret used or referred to in the course of legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret. Member States may also allow competent judicial authorities to take such measures on their own initiative.
The measures referred to in the first subparagraph shall at least include the possibility:
(a) of restricting access to any document containing trade secrets or alleged trade secrets submitted by the parties or third parties, in whole or in part, to a limited number of persons;
(b) of restricting access to hearings, when trade secrets or alleged trade secrets may be disclosed, and the corresponding record or transcript of those hearings to a limited number of persons;
(c) of making available to any person other than those comprised in the limited number of persons referred to in points (a) and (b) a non-confidential version of any judicial decision, in which the passages containing trade secrets have been removed or redacted.
The number of persons referred to in points (a) and (b) of the second subparagraph shall be no greater than necessary in order to ensure compliance with the right of the parties to the legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings.

3. When deciding on the measures referred to in paragraph 2 and assessing their proportionality, the competent judicial authorities shall take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures.

4. Any processing of personal data pursuant to paragraphs 1, 2 or 3 shall be carried out in accordance with Directive 95/46/EC.

UPC Case Law :

UP{C Court of Appeal

IPPT20260126, UPC CoA, Sun v Vivo
Application for ‘External Eyes Only’ confidentiality club rejected (R. 262A RoP). Trade Secrets Directive not directly applicable to patent law proceedings before this court (R. 262A RoP). Concerns only the unlawful acquisition, use or disclosure of trade secrets and does not provide for measures to protect the confidentiality of trade secrets in other types of court proceedings. When interpreting R. 262A RoP, the Court of Appeal will use principles similar to the principles underlying the Trade Secrets Directive. Confidentiality club regime: proportionality of measures (R. 262A RoP, Article 9(3) Trade Secrets Directive). When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures (cf. Art. 9(3) TSD). Confidentiality club membership for legal persons (R. 262A.6 RoP, Article 9(2) Trade Secrets Directive). A legal person should be able to propose a natural person or natural persons to ensure proper representation of that legal person. Access of that natural person to be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person. The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person.  Access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. aving full access for, at least, one of its employees, as a general rule, outweighs the interests of the applicant, even if imposing a EEO regime would be preferable from the perspective of safeguarding confidentiality. 

UPC Court of First Instance

IPPT20250513, UPC CFI, LD Munich, Huawei v MediaTek - II
IPPT20250513, UPC CFI, LD Munich, Huawei v MediaTek - I
Confidentiality and confidentiality club (Article 58 UPCA, R. 262 RoP, R. 262A RoP, Article 9 Trade Secrets Directive). Whether Rule 262A VerfO also covers the situation where (without a restriction on access being imposed on one party) the parties to the proceedings are required to treat confidential information as confidential vis-à-vis third parties or the public, or whether such an obligation arises directly from a simultaneous application pursuant to Rule 262.2 VerfO, does not require a final decision. Such an obligation of confidentiality would in any case follow from the analogous application of the aforementioned provisions. 

IPPT20240830, UPC CFI, LD Düsseldorf, Ona v Apple
Protected confidential information – trade secrets (Article 9 Trade secret directive, Article 58 UPCA, Rule 262A RoP). Information on profit margin can be classified as confidential if it is not available from publicly accessible sources. Information about the few employees having access to this financial information appears to be valuable and confidential in itself. Information that certain products do not support certain functionalities may also be confidential. The existence of a negative fact therefore does not per se exclude the need for secrecy. Information about the group of persons with relevant detailed knowledge of technical information classified a confidential. That information knowledge harbours the potential for targeted attacks in order to obtain confidential information concerning specific, secret functionalities.

IPPT20240821, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Certain information classified as confidential for confidentiality club (Article 58 UPCA, Rule 262A RoP, Article 9 Trade Secrets Directive). The fact that precisely the information now classified as confidential by the Defendants was publicly discussed in the Stuttgart proceedings has not been sufficiently demonstrated by the Applicant, nor is it apparent.

IPPT20240809, UPC CFI, LD Hamburg, AGFA v Gucci
Confidentiality club protection for trade secrets and confidential information, restricting use or disclosure outside of the present court proceedings.  (Rule 262A RoP, Article 9 Trade Secrets Directive). The existence of a trade secret does not have to be established to the court's satisfaction, but it is sufficient if this is predominantly probable. The following information relating to the internal organization, the supply chain and sales data of the Gucci group are classified as confidential pursuant to R. 262A RoP. Restricting the use of confidential instead of limiting access thereto, does not endanger the right of the other party right to be heard and the right to argue its case successfully and does not does not require the same strict balancing of interest as a limitation of access within the proceedings.

IPPT20240328, UPC CoA, Curio v 10x Genomics
Confidentiality order remains in place after the legal proceedings have ended and encompasses appeal proceedings. Any limitation of a non-disclosure obligation must be explicit (Rule 262A RoP, Article 9(1) Trade Secrets Directive)