UPC Legal Compass: Review Proceedings Against an Order to Preserve Evidence: Is It Worth Taking This Route?

Recent UPC case law provides useful guidance for defendants being enjoined by ex parte Orders to Preserve Evidence (seizures) when assessing whether a remedy should be filed, with which the court is asked to revisit the seizures order (review proceedings).

 

Review proceedings as an essential safeguard

Under the UPCA, ex parte measures are permitted but must be counterbalanced by the availability of review proceedings. The Preamble recalls the primacy of Union law, the Charter of Fundamental Rights, and, in particular, the right to an effective remedy, a fair hearing, and adjudication within a reasonable time by an independent tribunal.

When an ex parte measure is issued, review proceedings are the necessary counterpart to the derogation from the adversarial principle. Their purpose is simply to reinstall an inter partes debate.

 

Legal framework under the UPCA and the Rules of Procedure

Articles 60(5) and 60(6) UPCA provide that:

• Measures to preserve evidence may be ordered without hearing the defendant where any delay may cause irreparable harm or where there is a clear risk of evidence being destroyed.
• When such measures are ordered ex parte, the affected parties must be notified without delay and may request a review, during which they will be heard by the court. The Court must then decide, within a reasonable period, whether to modify, revoke, or confirm the measures.

The UPCA provisions are supplemented by Rules 192-199 RoP (Part 2, Chapter 4), governing orders to preserve evidence and orders for inspection. These rules must also be interpreted consistently with Directive 2004/48/EC on the enforcement of intellectual property rights.

The overall framework establishes a comprehensive and stringent set of conditions for granting ex parte evidence orders. Proportionality and efficiency are the governing principles.

 

The duty of candor of the applicant

An applicant for an ex parte order must satisfy the substantive conditions in Rule 192 RoP. Additionally, Rule 192.3 RoP imposes a special duty when the application is made without hearing the defendant: “the applicant shall be under a duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant.”

This duty of candor stems directly from the absence of an inter partes debate. If a patentee seeks the benefit of a surprise measure, it must be entirely transparent with the judge.

 

UPC Court of Appeal guidance on the duty of candor

In its decision of 15 July 2025 (UPC CoA 327/2025), the Court of Appeal addressed the scope of the applicant’s duty of candor. The seized party alleged that the applicant failed to disclose relevant prior art that could undermine the validity of the asserted patent.

The Court held that:

• the duty of candor extends to obvious material facts that may call the presumption of validity into question, such as:
  • decisions of an EPO Opposition Division or Board of Appeal,
  • parallel revocation proceedings before national courts.

• The duty may also be breached if the applicant fails to disclose prior correspondence from the defendant raising doubts about validity.

However, the Court clarified that the standard is less demanding than for provisional measures under Rule 211.2 RoP, where the Court must be satisfied with a “sufficient degree of certainty” regarding validity.

Validity assessments remain the prerogative of the judge deciding the case on the merits or ruling on provisional measures.

 

Judicial discretion and proportionality

Rule 197 RoP confirms that ex parte measures may be ordered where delay risks causing irreparable harm or where the evidence may be destroyed or otherwise cease to be available.

The language “in particular” signals that these are illustrative, not exhaustive, circumstances. Still, the rule shows that an ex parte order is not a right, and is appropriate only where the applicant demonstrates a specific need justifying the departure from inter partes proceedings.

By comparison, French law (Article L. 615-5 IPC) adopts a more liberal approach, requiring little more than standing, though the duty of candor still arises from the ex parte nature of the procedure.

 

How judges exercise discretion: guidance from the case law

Rule 194.2 RoP sets out the factors that the judge must consider:

• urgency;
• whether the reasons for not hearing the defendant appear well-founded;
• the risk of destruction or loss of evidence.

An order of the Local Division The Hague (UPC_CFI_897/2025) illustrates the careful balancing exercise. Measures were granted on the last day of a trade fair for an allegedly infringing machine displayed by a Turkish company. The Court scrutinised every condition under Rules 192.2, 194.2 and 197 RoP, even though urgency and risk of unavailability of the evidence were both clear.

 

Limited prospects of success for review proceedings

Review proceedings under Rule 197.3-4 RoP allow the defendant, within 30 days of execution, to request reconsideration of the order, stating reasons and supporting evidence. An oral hearing must be held “without delay”. The Court may modify, revoke, or confirm the order.

Case law confirms:

• Review proceedings are not an appeal but a restoration of inter partes debate.
• National procedural concepts may inform the interpretation of “execution of the measure” (eg French practice under UPC_CFI_397/2023).
• Review decisions may be appealed.

In UPC_CFI 813/2024 (Paris Local Division) and UPC CoA 327/2025, a seizure carried out on 14 January 2025 was reviewed and ultimately upheld. The Court of Appeal examined each criterion under Rule 194.2 RoP.

This decision is of particular importance because, within the UPC system, the Court of Appeal is responsible for harmonizing the interpretation of the requirements for ex parte orders across all divisions. As stated at §26 of the judgment, the role of the Court of Appeal is to determine whether the limits of the first-instance court’s discretionary powers have been exceeded or whether an error of law has been committed when assessing a request for ex parte measures.

The Court emphasized that the necessity and appropriateness of the ordered measures must be assessed on the basis of the circumstances that prevailed at the time the ex parte order was issued. This temporal limitation has important implications: an applicant must satisfy all conditions at the time of filing the request, and cannot attempt – during review proceedings – to cure deficiencies or rely on new arguments that were not presented to the judge authorizing the ex parte order.

 

Urgency: a flexible requirement?

The CoA confirmed that urgency may arise from the nature of the evidence (eg access to the inside of a furnace before it is put into operation).

The Brussels Local Division (UPC_CFI_407/2025 & 408/2025) clarified that:

• urgency is not a precondition for granting ex parte measures under the UPCA,
• Rule 194.2 RoP lists non-cumulative factors,
• in some situations the focus may legitimately be on the risk of evidence disappearing, which also may be interpreted as urgent.

 

Overall perspective

The UPC framework imposes heavy burdens on both applicants and judges. The strict procedural safeguards (candor, proportionality, judicial reasoning) reduce the likelihood that an ex parte order will be revoked on review.

The main ground with real potential for success remains breach of the duty of candor. Misleading a judge will never pay.