Strabag v Swarco (UPC_CFI_54/2024)
Decision date:
01 August 2025
Osborne Clarke summary
- Swarco brought an infringement action against Strabag. In its defence, Strabag referred to a report that had been commissioned by Chainzone (the intervener for Strabag). This report had been submitted to the Vienna LD without any request for confidentiality.
- Strabag submitted a request for certain elements of the report to be classified as confidential information pursuant to Article 58 UPCA. This was based on the fact that the information in question concerned Chainzone's internal know-how.
- The Court of Appeal highlighted that Rule 262 RoP does not automatically grant protection against the other party disclosing the information, it merely concerns the accessibility of written submissions to members of the public. An order under Rule 262A RoP is necessary to restrict the use of information by a party to the proceedings. However, a request under Rule 262A RoP must be made at the same time as lodging a document containing the evidence. Therefore, it was not open to Strabag and Chainzone to request confidentiality under Rule 262A RoP in respect of certain elements of the report.
- However, the Court of Appeal granted the application to treat other elements of the evidence as confidential under Article 58 UPCA. The court found that findings related to product characteristics were not readily available to third parties and could only be determined after time-consuming analysis. This fact, alongside the commercial value of the information and the steps Chainzone had taken to keep it confidential, meant that the elements of evidence required confidentiality.
Issue
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