A guide to the UPC and the UP - Flipbook - Page 173
11-06 As regards the enforcement of intellectual property rights, the principle of proportionality is
included in both the TRIPs Agreement and the Enforcement Directive. 10 The CJEU has
considered the issue of proportionality in relation to the granting of injunctions in a number
of cases. It has stated that injunctions must be effective, proportionate, dissuasive and must
not create barriers to legitimate trade or be excessively costly. In relation to infringements on
online marketplaces, for example, the CJEU stated that national courts could grant injunctions
to prevent infringements of intellectual property rights and contrasted this remedy with the
suggestion that there might be active monitoring of customers’ data in order to prevent any
future infringement of intellectual property rights via the provider’s website. It considered the
latter to be incompatible with the Enforcement Directive as not being fair and proportionate. 11
Fairness and Equity
11-07 The Court must ensure that the rules, procedures and remedies provided for in the UPCA are
used in a fair and equitable manner and do not distort competition. 12 The preamble to the RoP
clarifies that fairness and equity shall be ensured by having regard to the legitimate interests
of all parties. 13
11-08 This principle of fairness derives from the rule of law, and in simple terms means the law
should apply equally to all. The principle of a fair trial (procedural fairness) is crucial in any
legal system based on the rule of law. Procedural fairness includes several aspects: publicity,
the right to be heard, and the right to have affairs handled impartially, fairly and within
a reasonable time.
11-09 At the EU level, the right to fair trial is recognised in art.6 European Convention on Human
Rights 14 (ECHR) and art.47 Charter of Fundamental Rights in the EU. 15 According to art.6 ECHR,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but the press
and public may be excluded from all or part of the trial in the interests of morals, public order
or national security in a democratic society. The EU respects the fundamental rights guaranteed
in the ECHR, as stated in art.6(2) TEU.
Public Access
11-10 Public access is a vital component of procedural fairness; the UPCA provides that proceedings
before the Court are open to the public 16 and the RoP reinforces this by stating that (1)
decisions and orders made by the Court shall be published and (2) written pleadings and
evidence lodged at the Court and recorded on the Registry shall be available to the public on a
reasoned request, the decision to be taken by the judge-rapporteur after consulting the parties.
That said, a party may request that certain information in written pleadings or evidence be kept
confidential. To enable such requests, the RoP provide for a delay of 14 days before it is made
available to the public. A party making such a request is obliged to provide a redacted version
of the document the unredacted version of which is to be kept confidential. Even so, it is still
open to a member of the public to make an application for an order that any information
excluded from public access be made available to the applicant. 17 The final version of the RoP
also now provide the parties with the means to protect their confidential information by making
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art.3(2) Enforcement Directive. See chapter 15 (Remedies) particularly, paragraphs 15-07 to 15-12 in relation to the
interpretation of this requirement in relation to permanent injunctions.
L'Oréal SA v eBay International AG (C-324/09) [2011] ECR I-06011 at [139] and [144].
art.42(2) UPCA.
para.5 preamble to the RoP.
Available at www.echr.coe.int/Documents/Convention_ENG.pdf [Accessed 13 April 2023].
Charter of Fundamental Rights of the European Union (OJ No. C 202, 7.6.2016, p.389).
art.45 UPCA.
r.262 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 163
