French litigators will recognise their saisie-contrefaçon: the UPC may order, even before any action on the merits, swift measures to preserve evidence of an infringement (A60 UPCA and R192 to R199 RoP UPC), inspired by Directive 2004/48/EC (Article 7 of Directive 2004/48/EC).

The available measures

Preservation of evidence

The Court may in particular order (A60(2) UPCA and R196.1 RoP UPC):

  • a detailed description, with or without the taking of samples;
  • the physical seizure of the allegedly infringing products;
  • the seizure of the materials and implements used in producing or distributing those products, and of any related documents;
  • the preservation and disclosure of digital media and data, including any passwords needed to access them.

Inspection

Upon a reasoned request, the Court may also order the inspection of products, devices, methods, premises or local situations in situ (A60(3) UPCA and R199.1 RoP UPC). The rules on the preservation of evidence apply (R199.2 RoP UPC).

It is not entirely clear how inspection really differs from the preservation of evidence… but never mind: the procedure is the same.

Freezing orders

On the basis of reasonably available and plausible evidence of infringement, the Court may order a party not to remove assets from its jurisdiction or not to deal in any assets (A61 UPCA and R200 RoP UPC), under the same procedure (R200.2 RoP UPC).

The application

Who applies, and before which division

The application is lodged by a person entitled to bring proceedings under Article 47 (proprietor, licensee) before the division seised of the action on the merits or, before any action has been started, before the division in which the applicant intends to bring it (R192.1 RoP UPC). Such measures therefore cannot be ordered by the Court of its own motion.

The language is that of the proceedings on the merits or, failing that, a language accepted before the division (R192.4 RoP UPC). The fee is €5,000 (plus the value-based fee if no infringement action is pending) (R192.5 and R370.3 RoP UPC; see “Court fees and value of the action”).

Content

The application contains the identification particulars, the measures requested (with the precise location of the evidence, where known), the reasons why they are needed, the facts and evidence relied on and, where no action on the merits has yet been started, a concise description of the action to be brought (R192.2 RoP UPC). The applicant must present reasonably available evidence of an infringement that has occurred or is about to occur (A60(1) UPCA).

Inter partes or ex parte?

The Court’s choice

The Court may, at its discretion, inform the defendant and invite it to file observations, summon the parties to an oral hearing, hear the applicant alone, or decide without hearing the defendant (R194.1 RoP UPC). It takes into account the urgency, whether the reasons for not hearing the defendant are well founded, and the risk that evidence may be destroyed (R194.2 RoP UPC).

The measures are ordered without hearing the defendant in particular where any delay is likely to cause irreparable harm to the proprietor or where there is a demonstrable risk of evidence being destroyed (A60(5) UPCA and R197.1 RoP UPC).

If the Court decides to inform the defendant, the applicant may first withdraw its application and have it kept confidential; it may also do so where a protective letter has been filed in respect of the patent (R194.5 and R194.6 RoP UPC). The protective letter therefore matters here too (see “Provisional measures”).

The applicant’s duty of candour

An applicant seeking an ex parte measure must state its reasons and disclose any material fact known to it that might influence the Court (R192.3 RoP UPC).

The Court of Appeal takes this duty seriously: it covers any fact capable of influencing the decision, including the assessment of proportionality, and an omission or distorted presentation of an essential fact cannot be cured by explanations given afterwards in the review proceedings. An applicant that had presented a trade fair as the only opportunity to prove the manufacturer’s acts, while remaining silent about the fact that the manufacturer was already selling the products itself in Germany on Amazon (a simple test purchase would have sufficed), thus saw the inspection order revoked, and bore the costs (UPC, Court of Appeal, 16 Mar. 2026, Ecovacs v. Roborock, UPC_CoA_3/2026, headnote and points 6 to 10).

The order and its execution

The order is immediately enforceable unless the Court decides otherwise; it may be made subject to conditions, in particular the provision of security (R196.3 RoP UPC). Security covering the defendant’s costs and any damage it may suffer is even the rule where the order was made without hearing the defendant, save in special circumstances (A60(7) UPCA and R196.6 RoP UPC).

The measures are carried out by a person named in the order, a professional or expert offering guarantees of expertise, independence and impartiality, where appropriate a bailiff or assisted by a bailiff, in accordance with the national law of the place of execution; that person delivers a written report within the time limit set (R196.4 and R196.5 RoP UPC).

The applicant does not attend the execution in person, but may be represented by an independent professional named in the order (A60(4) UPCA); under no circumstances may an employee or director of the applicant be present (R196.5 RoP UPC). Unless the Court decides otherwise, the results may be used only in the proceedings on the merits (R196.2 RoP UPC), and the Court may restrict access to them to named persons (R196.1 RoP UPC).

Remedies

Review (measure ordered ex parte)

The defendant is notified at the latest upon execution; it may request, within 30 days of execution, a review of the order, in which case a hearing is held without delay; the Court may modify, revoke or confirm the order (A60(6) UPCA and R197.2 to R197.4 RoP UPC).

Appeal

The order may be appealed within 15 days (R196.7, R220.1(c) and R224.1(b) RoP UPC).

Start proceedings on the merits, or face revocation

The applicant must start the action on the merits within 31 calendar days or 20 working days (whichever is longer), from the date specified in the order having regard to the delivery of the report; otherwise, the measure is revoked at the defendant’s request (A60(8) UPCA and R198.1 RoP UPC). This time limit cannot be extended (R9.4 RoP UPC).

If the measure is revoked or lapses owing to an act or omission of the applicant, or if it is found that there has been no infringement, the defendant may obtain compensation for the damage suffered (A60(9) UPCA and R198.2 RoP UPC).