2026-01-26 - CoA - Merz v. Viatris Sant - UPC-COA-0000917/2025

According to case-law, only R. 262A RoP allows the Court to restrict the use of confidential information by the opposing party and its representatives. A request under R. 262.2 RoP that certain information of written pleadings or evidence be kept confidential does not automatically grant provisional protection against the disclosure of information by the other party (UPC_CoA_70/2025, order of 1 August 2025, Strabag vs Swarco et al, paras 19 and 20). Furthermore, and as set out repeatedly, a decision on a request according to R. 262.2 RoP is generally not made until a reasoned request from the public under R. 262.1(b) RoP is lodged. This is because requests under R. 262.2 RoP are made in relation to future requests for access to information by the public, not in relation to the other parties to the proceedings. An Application for a confidentiality order, with or without establishment of a confidentiality club, under R. 262A RoP shall be made at the same time as lodging a document containing the information or evidence. In this case the information should be uploaded as HC (highly confidential). Where the information is of such confidential nature that only a limited number of people should be allowed access to it, a so-called confidentiality club can be set up in accordance with R. 262A.6 RoP. Alternatively, it may - and must - be subject of a R. 262A RoP request if it is requested that the other party is only limited in its use of the confidential information in that it shall only be used for the purpose of the legal proceedings and may not be disclosed to third parties. As is apparent from R. 262A.3 RoP, a party's written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged, or a statement is made that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal. Absent an explicit request for a confidentiality order, or a statement that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal, the Court will not treat a document as potentially containing confidential information in the sense of R. 262A RoP. This also applies if the document was uploaded by that party under HC code. Uploading a document under this code prevents access to it by the other party. A legal basis for uploading a document under HC code is lacking, and is also contrary to the legitimate interest of the other party to have unrestricted access to the documents lodged by the other party without delay, if there is no simultaneous application pursuant to R. 262A RoP. In such a situation, the Court will therefore as a matter of routine change the code to M to make it immediately available to the other parties to the procedure.

The CoA clarified the application of confidentiality rules, stating that only a 262A RoP application could be the basis for preventing the other party from accessing specific documents. If no such application was made, the registry will change the status from "Highly Confidential" (HC) to "Mutual (M).