A detailed decision from the UPC Court of Appeal takes a principled approach to public access applications and provides valuable guidelines.  However, the Court may have set itself up for a bigger contest on panel composition, having sat without any technically-qualified judges.

On 10 April 2024, the UPC Court of Appeal issued its first decision on the matter of public access applications pursuant to Rule 262.1(b) of the Rules of Procedure (RoP) (UPC_CoA_404/2023).  This follows a tranche of Court of First Instance orders on such applications, including one in which Dehns is acting on behalf of the defendant.  It marks the first time that the Court of Appeal has set out extensive reasoning for the principles and interpretation it has adopted on this point.

The Court of Appeal also addressed comments in relation to the composition of its panel.  Like many other Court of Appeal cases that have occurred thus far, the panel comprised three legally-qualified judges.  This is contrary to the explicit wording of Article 9.1 of the UPC Agreement (“UPCA”), which states that a panel of the Court of Appeal “shall sit in a multinational composition of five judges” of three legally-qualified judges and two technically-qualified judges.

This is another issue that has been gaining traction among some commentators in recent weeks, but not the first time that the Court of Appeal has ruled on it.  In a trio of orders, dated 18, 19, and 20 December 2023 (UPC_CoA_472/2023, UPC_CoA_476/2023, and UPC_CoA_478/2023), the Court reasoned that, notwithstanding the requirement of Article 9.1 UPCA, the Court can decide to sit in a panel of three legally-qualified judges where the issues to be heard are only “non-technical” in nature.

However, the present decision is the first in which the Court has sought to justify this position at length.



A third party, as a member of the public, filed an application under Rule 262.1(b) RoP in relation to infringement proceedings launched at the Nordic-Baltic Regional Division in June last year.  The third party’s application sought access to several documents in the proceedings, including the statement of claim.

The Regional Division ordered access to the statement of claim, referring to Article 45 UPCA, which states that the “proceedings shall be open to the public”, unless confidential or outweighed by general interests in justice or public order.  The judge-rapporteur reasoned that public proceedings should also include the written procedure.  The judge-rapporteur also stated that, provided the applicant provides a credible reason for wanting access, the application shall be approved, unless it is necessary to keep information confidential.

The claimant appealed the order, requesting that the third party be denied access to the statement of claim.


A Balancing Act

The Court of Appeal takes the same position as the Regional Division in setting out the general principle that proceedings are open to the public, unless there are confidentiality concerns, as set out in Articles 10 and 45 of the Agreement.  At paragraph 43, the Court recognises that, for applications under Rule 262.1(b) RoP, there is a need to balance the interest of the member of the public with the protection of confidentiality and the general interests of justice and public order, as mentioned in Article 45 UPCA.

Considering the interests of justice and public order also justifies an assessment of whether an application is abusive or not.

The Court of Appeal goes on to consider applications under Rule 262.3 RoP, which are for access to information made confidential under Rule 262.2 RoP.  For such applications, the Court is of the view that there is only a need to balance the interests of the applicant against those of the party’s interest in keeping information confidential.  This can be done without needing to balance against the general interests of justice or public order.

Further, as an extension of the interest of justice, the Court of Appeal sets out an interest in the protection of the integrity of the proceedings.  In essence, this purpose of this interest is to ensure public trust in the Court’s impartiality and its independence from external influence.  Where proceedings are ongoing, there is then a need to weight this interest highly.  The effect of this weighting is that there would be a higher threshold for gaining access to proceedings that are ongoing relative to proceedings that have concluded, either as a result of a decision or by settlement.

The Court does, helpfully, set out exemplary scenarios at paragraphs 53 and 54.  The higher threshold could be met where a third party is also concerned by an allegation of invalidity where they are a competitor in the relevant field.  In such a scenario, the specific interest of the third party could outweigh the general interests.  But the Court, might impose certain conditions for access to the proceedings to ensure that the general interests are protected as far as possible.

This decision therefore provides clear guidance on when public access should be allowed.


The Next Battleground?

Interestingly, the decision devotes 50% more space, compared to the matter of the public access applications, to its justification for sitting in a composition of three legally-qualified judges.

Commentators at IPKat set out the position that the Court of Appeal’s decision to sit in panels comprising only three legally-qualified judges was at odds with the first sentence of Article 9.1 UPCA, which states: “Any panel of the Court of Appeal shall sit in a multinational composition of five judges.”  They then posed the possible question whether, in departing from the letter of Article 9.1 UPCA, the Court would be in contravention of Article 6 of the European Convention on Human Rights – the right to a fair trial.  Indeed, this view was raised by the third party member of the public in the appeal proceedings (see paragraph 9).

The Court of Appeal took the position that Article 9.1 is not exhaustive and that there is support in Article 9.1 itself, as well as in the Statute of the Unified Patent Court and the Rules of Procedure, that allows deviation from a panel of five judges.  The Court cites referrals to the “full court” of the Court of Appeal under Rule 238A RoP and powers of the judge-rapporteur in appeal proceedings as examples of alternative compositions.

The Court also points to national examples in Finland, Denmark, Norway, and Germany, where matters that are non-technical in nature are heard by legally-qualified judges only and technical judges are added to a panel only when their expertise is deemed necessary by the Court.

Reasons of cost and time efficiency are also used by the Court as justification for deviation from Article 9.1, as was the case in the earlier orders of 18, 19, and 20 December 2023 referred to above.

The Court determines the matter of applications pursuant to Rule 262.1(b) RoP to be non-technical in nature.  It therefore concludes that the Court has the power to decide to sit in a panel of three legally-qualified judges without violating Article 9.1 UPCA or Article 6 ECHR.


Is this really a case of pragmatism?

For public access applications, this decision sets out the general principles that should be applied when considering such applications.  Defining different thresholds depending on proceedings being ongoing or concluded is a sensible and practical choice.

In the Court of First Instance’s order in Bitzer v. Carrier (UPC_CFI_ 263/2023), the CFI defined the list of documents that can be made public pursuant to an application under Rule 262.1(b) as being a closed list.  There is no commentary in the Court of Appeal’s decision on which documents in the written proceedings are “written pleadings or evidence” within the meaning of the Rule.  The CFI’s position is not mutually exclusive with the present decision.  This also means that there is the possibility of future appeals on this point.

Undeniably, the contours of the Court’s approach to public access requests have become clearer, and this is welcome.  This may also quell the appetite of the community of attorneys probing at the transparency of the Court in this area.

With regard to panel composition, this commentator is not convinced that the Court’s reasoning will put the matter to rest.  Article 9.1 UPCA is unambiguous in requiring a Court of Appeal panel to comprise five multinational judges.  It is only after this statement that the composition is defined as being of three legally-qualified and two technically-qualified judges.  By pointing to Rules relating to referrals to the “full court” of the Court of Appeal and to powers of the judge-rapporteur, the Court appears desperate in finding any scrap of legal basis for its decision to deviate from the clear wording of Article 9.1 UPCA.

It appears incorrect to me for the Court to follow the letter of the law when determining which documents in the written proceedings are defined as pleadings and evidence, only to ignore it entirely when it comes to composition of a Court of Appeal panel.  Even if a panel composition of three judges is more convenient and efficient for the Court, that is not sufficient reasoning to disregard the wording of Article 9.1 UPCA.

Why should some articles and rules be interpreted exhaustively while others are not?  Is this a case of pragmatism or inconsistency in its approach?  Perhaps the CJEU will decide.

In any case, the UPC is still young, and it will be exciting to watch how this all plays out.