HR 13 November 2015, ECLI:HR:2015:3304 (AIB/Novisem).

The judgment of the Dutch Supreme Court dated 13 November 2015 addresses the extent to which a claimant should substantiate its legitimate interest and legal relationship when claiming disclosure of documentsas required by the Dutch Code of Civil Procedure (CCP).

Article 843a CCP provides the basis for claiming disclosure of evidence regarding records (bescheiden), including both hard copy and electronic files, for those claimants with  a legitimate interest in obtaining evidence. Paragraph 1 of the provision reads:

“Anyone having a legitimate interest can, at his own expenses, require from the person who has records at his disposal or in his possession, access to or a copy of specific records with regard to a legal relationship to which he or his legal predecessors are party (…)

Such claims can be submitted as a procedural matter in pending proceedings, such as proceedings on the merits. It can also be brought forward in independent proceedings, such as preliminary relief proceedings. Disclosure of records can be claimed from the party with whom the relevant “legal relationship” exists. Disclosure can also be demanded from a third party who has relevant records at his disposal, even if that third party is not necessarily a party to the legal relationship.

Article 1019a CCP further specifies that an intellectual property infringement qualifies as a legal relationship for disclosure pursuant article 843a CCP.

In the judgment at hand – in preliminary relief proceedings – the claimant, AIB, requested copies of all records, such as transport documents, administration, e-mails, correspondence, advertisement, regarding the trading in three specific varieties of celeriac. AIB argued that it could legitimately claim disclosure of these records because there were sufficient grounds to suspect infringement of protected plant variety rights by the defendant, Novisem. AIB substantiated this with proof of dissemination of a price list which mentioned the protected celeriac plant varieties and proof of a sales meeting promoting the varieties concerned. Novisem defended its position and claimed that it had not actually sold any plant material in the Netherlands and that the relevant activities were aimed at buyers outside the Netherlands, where the variety rights were not protected.

The Court of Appeal ruled that under these circumstances (and in view of Novisem’s defence) it was not sufficiently convinced that an infringement of the variety right of the claimant would be established in the proceedings on the merits and dismissed the claim. The Court added that in any case the possible infringement would be minor and for this reason the requested disclosure of records could not be justified.

Before the Supreme Court, AIB complained that the test applied by the Court of Appeal is too strict. According to AIB, a claimant is only required to substantiate its legal relationship on the basis of which it has a legitimate interest in disclosure of the records and the court should not assess the likelihood of success in the proceedings on the merits.

The Supreme Court ruled that when the existence of a legal relationship (such as an infringement of an intellectual property right) is disputed, the claimant should substantiate its claims using evidence which is already available, to the extent that the infringement, or the threat thereof, is sufficiently likely. It depends on the actual statements of both parties and the evidence presented whether the existence of a legal relationship is sufficiently likely. The Supreme Court also clarified that the threshold to determine the likelihood of the infringement, to be demonstrated by the claimant, is lower than that required in an injunction claim regarding the infringement in summary proceedings.

In addition, the Supreme Court ruled that, even if the evidence presented to the Court at most revealed a minor infringement (as stated in the judgment of the Court of Appeal), this does not entail that the claimant does not have a legitimate interest in disclosure of records. The disclosure is justified by the need of the claimant to further substantiate the nature and scale of the infringement.