2026-06-22 - LD The Hague - ESSITY HYGIENE AND HEALTH AKTIEBOLAG v. WEPA NEDERLAND B.V - UPC-CFI-0001103/2026

ENGLISH: 1. Review of an order to preserve evidence denied (R. 197.3) is unsuccessful. 2. No obligation for employees to answer questions could have been derived from the order. 3. It is clear from the rules of procedure, R. 198.1 RoP, that the order is revoked or ceases to have effect, upon request of the defendant, if within the time limit set, no proceedings on the merits have started. Order under 7.15 was clearly intended to set this time limit. Neither the action that the Defendant is required to take nor the consequences need to be specified in the Order. Furthermore, lawyers were present at the seizure from 12:00 onwards, capable of explaining to their client what action to take. 4. According to established case law, urgency is not a pre-requisite for an order to preserve evidence. It can however be a factor in determining whether the order should be given ex parte. Court assumes urgency as many documents to be seized are/were likely stored digitally, which can easily and promptly be deleted or moved elsewhere. In addition, the applicant for review is part of a group of companies, facilitating easy movement of products, intermediates or pulp-fibres as well as any physical documents as envisaged in the order. Furthermore, this review is being conducted inter partes. No convincing arguments have been put forward to justify rejection of the application to preserve evidence, had it been conducted inter partes.

The Hague Local Division (Brinkman, sitting as single judge) dismissed WEPA's R. 197.3 RoP request to review and set aside an ex parte order of 17 April 2026 preserving evidence in support of a suspected infringement of Essity's tissue-paper patent, confirming the order in full. The Court held that no obligation on the defendant's employees to answer questions could be derived from the order: the applicant's request to compel answers under penalty had not been carried into the operative part and was expressly rejected, so no penalty applied — the defendant's misreading (its lawyers arrived over three hours into the seizure) was its own responsibility. It further held that R. 198.1 RoP operates by law — the order is revoked or ceases to have effect on the defendant's request if no merits proceedings are started within the set time limit — so the order need not spell out that recourse or its consequences. On validity, the Court confirmed that in deciding a preservation application it is not required to assess the patent's validity save where the presumption of validity is clearly called into question; here the EPO Opposition Division had maintained the patent, reinforcing the presumption. Finally, while urgency is not a prerequisite for an evidence-preservation order, a real risk of evidence being destroyed or moved (readily-deletable digital documents; the defendant's membership of a corporate group) justified the measure, and nothing warranted refusing the application even inter partes.