2026-04-14 - LD Brussels - Establishment Labs v. GC Aesthetics et al. - UPC-CFI-0001357/2025

ENGLISH: When assessing an application to produce evidence (R. 190 RoP application), the Court must consider the following cumulative conditions (cf. LD The Hague Order of 14 October 2024 in the case of Winnow v Orbisk, § 8, as further developed): 1. The requesting party must have presented evidence “reasonably available” in support of its claims. The assessment of this condition is prima facie and twofold: (a) Did the requesting party present “reasonable available” evidence to support its underlying assertions? (b) As an implied condition, could the requested evidence enable the requesting party to conclusively prove its assertions? 2. The evidence to which access is requested must (i) be “specified” and (ii) lie in control of the other party. 3. The other party’s confidential information must be protected. 4. The requirements of proportionality, equity, and fairness must be satisfied. This assessment is twofold: (a) The “timing” of the application as such taking into consideration the stage of the proceedings. (b) Each individual request as a final assessment.

The Brussels Local Division set out four cumulative conditions for an application to produce evidence under R. 190 RoP, developing the framework the Hague Local Division stated in Winnow v Orbisk, and granted the application in almost all its parts. The applicant must have adduced reasonably available evidence supporting its assertions, and — as an implied second limb — the evidence sought must be capable of proving them conclusively, both assessed prima facie on a low threshold and on the requests taken together rather than item by item. The evidence must be specified and under the other party's control; the other party's confidential information must be protected; and proportionality, equity and fairness must be satisfied, first as to the timing of the application in the proceedings and then request by request. On the facts the Court held the application not premature, since neither the Enforcement Directive nor the UPCA nor the Rules fix a time for it and the samples would take time to test. A statement by a representative that samples had been destroyed under a retention policy was not simply accepted despite R. 284 RoP, there being no sanction for breach and no evidence of the policy or of the destruction; the Court required two witness statements instead, in the form R. 175 RoP prescribes. Asserting that documents are confidential and internal was held insufficient to resist production, R. 262A RoP being the answer. A daily penalty of EUR 2,000 was imposed, the production ordered within 21 days, and the whole grant made conditional on the applicants naming the experts and the single employee who would see the unredacted material.