bluuebunny/crossref_metadata_2025 huggingface dataset:
Subject matter
Authors: Tilmann Winfried
Published: March 2021

The Lisbon Treaty introduced a more specific legal basis for the creation of European intellectual property rights. According to Art 118(1) of the Treaty on the Functioning of the European Union (TFEU), measures for the creation of European intellectual property rights are to be established by the European Parliament and the Council acting under the ordinary legislative procedure. Art 118(2) TFEU, however, sets out a specific legal basis for the language arrangements for European intellectual property rights, which are to be established under a special legislative procedure by the Council acting unanimously after consulting the European Parliament. Therefore, the translation arrangements for any unitary patent system in the EU must be established by a separate regulation.
Principle on expenses
Authors: Tilmann Winfried
Published: March 2021

The expenses incurred by the EPO in carrying out the additional tasks given to it, within the meaning of Article 143 of the EPC, by the participating Member States shall be covered by the fees generated by the European patents with unitary effect.
Recitals
Authors: Keussen Christoph
Published: March 2021

Pursuant to Decision 2011/167/EU, Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, France, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and the United Kingdom (hereinafter ‘participating Member States’) were authorised to establish enhanced...
Subject matter
Authors: Keussen Christoph
Published: March 2021

Council Decision of 10 March 2011 2011/167/EU was a culminating point in the long-standing dispute described in the Introduction relating to the creation of unitary IP rights in the EU. In its only Article, it authorizes 25 MSs of the EU (all MSs at the time of the Decision with the exception of Spain and Italy) to establish enhanced cooperation between themselves in the area of the creation of unitary patent protection.
Transitional measures
Authors: Keussen Christoph
Published: March 2021

To strengthen and secure the information function of EPs and EPUEs, the EPO, already during the disclosure of a European patent application, prepares machine translations in numerous official languages of the Union, and furthermore in official languages of other EPC MSs (eg Norwegian, Turkish) as well as in official languages of countries outside Europe that are active in the area of patents (eg Japanese, Chinese, Korean).
Introduction
Authors: Tilmann Winfried
Published: March 2021

The Agreement on a Unified Patent Court (UPCA) of 18 February 2013 is a treaty within the meaning of the Vienna Convention on the Law of Treaties (VCLT) of 23 May 1969. It is therefore subject to the rules of that Treaty as regards its creation, interpretation, including its uniform practice supporting the interpretation, and the possibility of withdrawing from or terminating the Agreement. For the relevant provisions of the VCLT, reference is made to Appendix 13 of this Commentary in which the Treaty is reproduced. Reference is also made to the statements regarding ‘uniform practice’ according to the VCLT in the Introduction (→ Introduction to this Commentary, mn 133).
Committees
Authors: Büttner Tilmann
Published: March 2021

An Administrative Committee, a Budget Committee and an Advisory Committee shall be set up in order to ensure the effective implementation and operation of this Agreement. They shall in particular exercise the duties foreseen by this Agreement and the Statute.
The Administrative Committee
Authors: Büttner Tilmann
Published: March 2021

The Administrative Committee is the central body guiding the Court. It decides, for example, on the appointment of judges (Art 16(2) UPCA), changes to the Statute (Art 40(2) UPCA), and possible extensions to the transitional period during which an opt-out from the jurisdiction of the Court to decide on a classical European patent may be declared (Art 83(5) UPCA). When amending the Statute, the Administrative Committee may not contradict the provisions of the Agreement (Art 40(2) cll 2 and 3 UPCA). The Administrative Committee is entitled to adopt most of the implementing regulations for the activity of the Court, notably the Rules of Procedure (Art 41(2) UPCA), subject to the advisory opinion of the European Commission on the compatibility of the Rules of Procedures with Union law, the Staff Regulations for officials and other employees of the Court (Art 16(2) UPC Statute), and the Financial Regulations of the Court (Art 33(1) UPC Statute). However, the Administrative Committee is not entitled to adopt the budget; that competence rests with the Budgetary Committee (Art 26(1) UPC Statute).
Primacy of and respect for Union law
Authors: Tilmann Winfried
Published: March 2021

The European Union would not consent to the creation of a competent international patent court when the rules of operation of that court are at least ambiguous with regard to its obligation to take into account all Union law. In particular, the Union would not elude its obligation to observe the fundamental rights guaranteed by the European legal system by participating in a standardized judicial system in which the application of such rights does not appear to be guaranteed.
Requests for preliminary rulings
Authors: Tilmann Winfried
Published: March 2021

As a court common to the Contracting Member States and as part of their judicial system, the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court.
Responsibility of the Contracting Member States
Authors: Tilmann Winfried
Published: March 2021

Actions of the Court are directly attributable to each Contracting Member State individually, including for the purposes of Articles 258, 259 and 260 TFEU, and to all Contracting Member States collectively.
Competence of the Court
Authors: Tilmann Winfried , Büttner Tilmann
Published: March 2021

By Art 32 UPCA, the CMSs established the jurisdiction of the UPC in the relationship between themselves and the UPC. They transferred jurisdiction to the UPC, excluding the jurisdiction of their own courts (→ Art 31 UPCA, mn 3). From Arts 1(2) and 21 UPCA it follows that the UPC, according to the intent of the CMSs, is part of their judicial systems. In Union law, this statement is confirmed by Arts 71a (common court), 71b(1) (jurisdiction for the CMSs), and 71d(2) (recognition and enforcement by the CMSs). It is to be understood not organizationally but functionally (→ Introduction to UPCA, mn 45–53). The Court not only performs certain tasks exclusively which would have to be performed by the national courts of the CMSs in the absence of the Agreement, but is furthermore deemed functionally equivalent to the national courts. One consequence of this is that the orders and decisions of the Court are enforceable in the CMSs automatically (directly) (Art 82 UPCA). The UPC speaks of ‘competence’ but what it means is ‘jurisdiction’ which would better correspond to the language of the Brussels Ia Reg. Since the UPCA has chosen to use ‘competence’, this commentary will continue to use that word instead of ‘jurisdiction’ in order to avoid any misunderstanding.
Financing of the Centre
Authors: Tilmann Winfried
Published: March 2021

The operating costs of the Centre shall be financed by the budget of the Court.
Proportionality and fairness
Authors: Tilmann Winfried
Published: March 2021

Art 42 UPCA turns to the Court directly and requires it to observe the standards which it sets out. It is thus distinguished from Art 41(3) UPCA that is addressed to the parties involved in the adoption of the Rules of Procedure and provides them with standards for the Rules of Procedure. However, the standards of Art 41(3) UPCA also provide the Court with interpretation aids. Since it may notably be assumed to have been the intent of the parties involved in the adoption of the Rules of Procedure to meet the standards set out in Art 41(3) UPCA, the Rules of Procedure may only be interpreted, from the aspect of a recognizable intent of the legislature, by recourse to those standards.
Parties
Authors: Tilmann Winfried
Published: March 2021

Art 47 UPCA provides for the entitlement to bring actions in respect of claims for which Art 32 UPCA confers exclusive competence on the Court. It is premised on party capacity pursuant to Art 46 UPCA and limits the group of persons having capacity entitled to bring actions for the claims specified. Since Art 46 UPCA has the same wording as Art 58 EPC, the patent proprietor authorized by the EPO may generally be recognized by Art 47(1) as having capacity as a party. However, this does not apply if the Court does not concur with the award of legal and party capacity to the person concerned by the EPO on application of Art 46 UPCA. Art 47(1) does not provide for a fiction of party capacity (and legal capacity, to the extent required for party capacity), but rather assumes it (Art 46 UPCA). The provision is also to be applied if, pursuant to Art 83(1) or (3) UPCA, a national court is seized.
Article 54 Burden of proof
Authors: Dorn Stephan
Published: March 2021

The UPCA and the Rules of Procedure contain the rules relating to the burden of proof, the burden of assertion, and the burden of proving.
Order to produce evidence
Authors: Tilmann Winfried
Published: March 2021

At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party or a third party, the Court may order the opposing party or a third party to present such evidence, subject to the protection of confidential information. Such order shall not result in an obligation of self-incrimination.
Freezing orders
Authors: Tilmann Winfried
Published: March 2021

At the request of the applicant which has presented reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed the Court may, even before the commencement of proceedings on the merits of the case, order a party not to remove from its jurisdiction any assets located therein, or not to deal in any assets, whether located within its jurisdiction or not.
Corrective measures in infringement proceedings
Authors: Tilmann Winfried
Published: March 2021

Without prejudice to any damages due to the injured party by reason of the infringement, and without compensation of any sort, the Court may order, at the request of the applicant, that appropriate measures be taken with regard to products found to be infringing a patent and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture of those products.
Powers of the Court concerning decisions of the European Patent Office
Authors: Kuczera Markus
Published: March 2021

In actions brought under Article 32(1)(i), the Court may exercise any power entrusted on the European Patent Office in accordance with Article 9 of Regulation (EU) No 1257/2012, including the rectification of the Register for unitary patent protection.
Legal costs
Authors: Tilmann Winfried , Dold Dennis
Published: March 2021

Reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise, up to a ceiling set in accordance with the Rules of Procedure.
Appeal
Authors: Tochtermann Peter
Published: March 2021

An appeal against a decision of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions, within two months of the date of the notification of the decision.
Training
Authors: Tochtermann Peter
Published: March 2021

The implementation of a training framework aims to broaden and deepen the knowledge of patent law and spread that knowledge amongst the CMSs. The latter is of great importance as many CMSs do not have sufficient patent cases to enable prospective candidates to have the requisite level of expertise in the field of patent law. Against this backdrop, the UPC system has to face the challenge of building trust in the Court whilst also giving candidates from CMSs with only minimal patent cases handled by their national courts a chance to gain sufficient knowledge to become a judge of the UPC. Therefore, the importance of the training framework cannot be overestimated.
Staff
Authors: Tochtermann Peter
Published: March 2021

The staff of the Court consist of the officials and other employees of the Court. However, judges are not officials in the sense of Art 16 UPC Statute. The officials and other employees of the Court are responsible to the Registrar, under the authority of the President of the Court of Appeal or the President of the Court of First Instance.
Keeping of the register
Authors: Tochtermann Peter
Published: March 2021

The rules on access to documents of the Registry are set out in the Rules of Procedure. According to Art 10(1) UPCA, the register is publicly available. Accordingly Rule 262 UPCARoP provides that written pleadings, written evidence, decisions, and orders made by the Court and recorded by the Registry are publicly available online unless a party to the proceedings requests that the documents are kept confidential and the Court agrees. However, unless forwarded to the applicant, protective letters are excluded (Rule 207(7) UPCARoP).
Supplementary protection certificate
Authors: Tilmann Winfried
Published: March 2021

In Art 2(h) UPCA, a ‘supplementary protection certificate’ (SPC) is defined as a supplementary protection certificate granted under Regulation (EC) No 469/2009 or under Regulation (EC) No 1610/96. For the purposes of simplification, the comments made hereafter refer solely to the first-mentioned Regulation (here: ‘the Regulation’).
Lodging of documents
Authors: Tilmann Winfried
Published: March 2021

Pursuant to Art 44 UPCA, the Court shall make best use of electronic procedures, such as the electronic filing of submissions of the parties and stating evidence in electronic form, as well as videoconferencing, in accordance with the Rules of Procedure. As stated in further detail in the commentary on Art 44 UPCA, use of electronic procedures by the Court is deemed to be ‘best use’ within the meaning of Art 44 UPCA if it is comprehensive and permanent. The requirement of Art 44 UPCA, therefore, applies to communication within the Court, communication of the Court with the parties, and communication of the Court with auxiliary persons such as Court-appointed experts and witnesses. Electronic procedures must also be used for obtaining information and archiving.
Fee for the infringement action
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

Rule 15.1 UPCARoP puts in more specific terms for the infringement proceedings the obligation of the parties to the proceedings, stipulated in Art 70(1) UPCA, to pay Court fees by imposing on the claimant the obligation to pay a fixed fee. The level of that fee is set in Rule 370.2, Fee Scale Section I at €11,000. Pursuant to Rule 371.1, the fee is to be paid by lodging the action (with regard to derogations from this requirement, → Rule 371 UPCARoP) by transfer to one of the bank accounts of the Court stating the party or his representative, the patent number, and the case reference. Pursuant to Rule 371.2, proof of payment is to be provided together with the Statement of claim.
Designation of the judge-rapporteur
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

The presiding judge of the panel to which the action has been assigned [Rule 17.2] shall designate one legally qualified judge of the panel as judge-rapporteur. The presiding judge may designate himself as judge-rapporteur. The Registry shall as soon as practicable notify the claimant and defendant of the identity of the judge-rapporteur.
Lodging of Defence to the Counterclaim for revocation, Reply to the Statement of defence and Rejoinder to the Reply
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

Rule 29 contains a systematic overview of the parties’ possible responses starting from the Reply. It defines time periods for several written pleadings in the infringement action. Whereas the Rules of Procedure for the Statement of claim (Rule 13), the Preliminary objection (Rule 19), the Statement of defence (Rules 23 and 24) and the Counterclaim for revocation (Rule 25) in separate rules lay down very detailed requirements for the respective necessary content of the written pleadings in each case, Rule 29 specifies several possible responses with their respective time limits and makes reference to the detailed individual provisions. Apart from restrictions on content, no detailed requirements on what the respective written pleadings must contain are specified. For that reason, Rule 29 does not itself essentially contain the orders but provides only a systematic overview. The orders are contained in individual provisions.
Application of Article 33(3) of the Agreement
Authors: Tilmann Winfried
Published: March 2021

If a defendant in patent infringement proceedings before the UPC wants to raise the argument that the patent is invalid and should be revoked, he must raise a Counterclaim for revocation (Art 65(1) UPCA, Rule 25.1 UPCARoP). If a Counterclaim for revocation as referred to in Art 32(1)(e) UPCA is brought against an infringement action as referred to in Art 32(1)(a), the competent panel of the local or regional division seized (here: infringement division) has the choice of three procedures.
Written procedure when the central division deals with a Counterclaim for revocation under Article 33(3)(b) of the Agreement
Authors: Kuczera Markus
Published: March 2021

The Counterclaim for revocation is assigned to a panel of the central division. It can be inferred from the reference to Rule 17.3, and from there to Rule 345.3, that such assignment is made by the Registrar. Pursuant to Rule 38(a) in conjunction with Rule 17.3, the decisive factor for selecting the panel is the determination of the competent section pursuant to Art 7(2) UPCA in conjunction with Annex II UPCA
Language of the proceedings before the central division
Authors: Kuczera Markus
Published: March 2021

Pursuant to Art 49(6) UPCA, the language in which a patent was granted will be the language of the proceedings before the central division. Although the UPCA does not provide for any exceptions to the rule, exceptions are conceivable taking into account the principles of proportionality and flexibility. In principle, however, further pleadings or statements before the central division, which may be submitted in the written procedure pursuant to Rule 38(c) or in the interim procedure pursuant to Rule 103, must be in the language in which the patent in suit was granted.
Written procedure when the central division deals with the action under Article 33(3)(c) of the Agreement
Authors: Kuczera Markus
Published: March 2021

Rule 41 forms a separate subsection in Section 1 of Chapter 1 in Part 1 of the Rules of Procedure and refers to Art 33(3)(c) UPCA. It provides further details on the written procedure before the central division if an entire case (action for infringement within the meaning of Art 32(1)(a) UPCA and Counterclaim for revocation pursuant to Art 32(1)(e) UPCA) has been referred to the central division by a local or regional division. With the consent of the parties, the local or regional division has thus exercised its discretion to hand over the case in full, and not merely the Counterclaim for revocation (cf Art 33(3)(b) UPCA and Rules 38–40 UPCARoP).
Action to be directed against the patent proprietor
Authors: Faehndrich Martin , Klicznik Alexander , Tilmann Max
Published: March 2021

Rule 42 UPCARoP relates to standing to be sued in revocation actions. According to Rule 42, a revocation action must be directed against the patent proprietor. In terms of its meaning, Rule 42 corresponds to Art 47(5) UPCA which stipulates for an action brought by the licensee that the validity of a patent cannot be contested where the patent proprietor does not take part in the proceedings (first clause) and which for the Counterclaim for revocation requires as a mandatory provision the involvement of the patent proprietor. Art 47(6) UPCA merely defines the group of persons entitled to bring an action for an isolated revocation action and makes general reference to the Rules of Procedure without expressly naming the patent proprietor as a necessary defendant.
Rule 55: Lodging of the Defence to the Application to amend the patent, the Reply to the Defence and the Rejoinder to the Reply
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

The Rule is self-explanatory. Refer to the commentaries on the Rules to which it refers.
Rule 57: Request for allocating a technically qualified judge
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

The Rule is self-explanatory. Refer to the commentaries on the Rules to which it refers.
Rule 58: Closure of the written procedure subject to the possible exchange of further pleadings
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

The Rule is self-explanatory. Refer to the commentaries on the Rules to which it refers.
Rule 64: Language of the Statement for a declaration of non-infringement and fee for the declaration of non-infringement
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

Only the reference to Rule 45 UPCARoP is applicable. Pursuant to Rule 45, the Statement of claim must be lodged at the central division in the language of the patent. This corresponds to Art 49(6) UPCA. If there is a jurisdiction agreement and the Statement of claim for a declaration of non-infringement is lodged at a local or regional division, the Statement of claim may be written in a language admissible pursuant to Rule 14.1(a) and (b).
Rule 80: Compensation for a licence of right
Authors: Plassmann Clemens , Kuczera Markus
Published: March 2021

Rule 80 UPCARoP governs the procedure for an application for payment of appropriate compensation for a licence as a result of a statement on licensing. Art 8 EPUE Reg provides for the possibility of filing a statement on licensing. Such a statement constitutes a binding offer on the part of the patent proprietor to grant a licence for the use of his patent, ie an ‘offer of a licence to any person’.
Rule 86: Suspensive effect
Authors: Kuczera Markus
Published: March 2021

Actions against administrative decisions of the EPO (Art 32(1)(i) UPCA, Art 9 EPUE Reg) have suspensive effect. This provision applies without exception. The Court is not granted any discretion. This rule thus differs from Art 74(1) cl 1 UPCA (generally no suspensive effect for an appeal in the other proceedings) or Art 81(2) cl 2 UPCA, Rule 252 UPCARoP (generally no suspensive effect if a rehearing is requested).
Rule 94: Invitation to the President of the European Patent Office to comment
Authors: Kuczera Markus
Published: March 2021

The judge-rapporteur may, on his own initiative or on request by the President of the European Patent Office, invite the President of the European Patent Office to comment in writing on any question arising in the course of proceedings under this Section. The claimant shall be entitled to submit his observations on the President’s comments.
Rule 104 Aim of the interim conference
Authors: Tochtermann Peter
Published: March 2021

The judge rapporteur will discuss the further schedule for the proceedings with the parties and their counsel. In that regard, he will discuss whether one day seems to be sufficient to close the oral hearing or whether more than one day is needed, for example due to hearing witnesses or experts and if they should be heard on a different occasion. The judge rapporteur can then set dates and times for the oral hearing in accordance with the presiding judge (→ lits g and h).
Rule 106 Recording of the interim conference
Authors: Tochtermann Peter
Published: March 2021

The public interim conference is audio-recorded and made available to the parties and their representatives after the hearing at the premises of the Court. The provision is modelled after Art 85 of the Rules of Procedure of the CJEU in force as of 29 September 2012. This means that the recording is only made available at the premises of the Court in order to avoid the recording being shared on the internet or other forms of telecommunication and to avoid a representative being tempted to use the courtroom as a floor for advertising his services by making sensational pleadings. Thus, no copies of the recording are made available to the parties or their representatives. No minutes have to be taken at the interim conference due to the audio-recording.
Rule 112 Conduct of the oral hearing
Authors: Tochtermann Peter
Published: March 2021

The presiding judge conducts the oral hearing. He sets out the action and introduces the factual and legal questions arising in the case as well as putting clarifying questions to the parties. He also hears witnesses (Rules 178.1 and 178.4) and experts (Rules 181, 188, and 178) and grants the right to question a witness or expert (Rule 178.5).
Rule 115 The oral hearing
Authors: Tochtermann Peter
Published: March 2021

The oral hearing and any separate hearing of witnesses shall be open to the public unless the Court decides to make a hearing, to the extent necessary, confidential in the interests of one or both parties or third parties or in the general interests of justice or public order. The hearing shall be audio recorded. The recording shall be made available to the parties or their representatives at the premises of the Court after the hearing. Rule 103 shall apply mutatis mutandis.
Rule 133 Value- based fee for the determination of damages
Authors: Plassmann Clemens
Published: March 2021

Rule 133 UPCARoP provides that the applicant, in the proceedings for determination of damages and compensation, in addition to the fixed fee pursuant to Rules 132 and 370.2 (Fee Scale Section I) to be paid for the action on the merits, is required to pay a value-based fee if the value of the dispute exceeds €500,000 (Rule 370.3, Fee Scale Section II). Rule 59 is almost identical in wording to Rule 22.2, which makes a similar provision for infringement actions. As a result, reference may for the most part be made to the commentary on that Rule.
Rule 140 Further procedure (Application for the determination of damages)
Authors: Steininger Steffen
Published: March 2021

Para 1 is the counterpart to Rule 36 which permits the further exchange of written pleadings. This underlines that the list of written submissions as set out in Rules 131, 138, and 139 is not exhaustive. It can further be derived from para 1 that the judge rapporteur is in charge of the procedure. The purpose of the written procedure is to prepare an expeditious oral procedure (aimed at one day’s duration (Rule 113.1)). Consequently, it is reasonable to allow the further exchange of written pleadings in the event of unresolved issues or recent developments.
Start of proceedings for cost decision
Authors: Plassmann Clemens , Dold Dennis
Published: March 2021

Where the successful party (hereinafter ‘the applicant’) wishes to seek a cost decision, it shall within one month of service of the decision lodge an Application for a cost decision.
Compensation for representation costs
Authors: Plassmann Clemens , Dold Dennis
Published: March 2021

The Administrative Committee shall adopt a scale of recoverable costs which shall set ceilings for such costs by reference to the value of the dispute. The scale may be adjusted from time to time.
Written witness statement
Authors: Ahrens Hans-Jürgen
Published: March 2021

A written witness statement shall be signed by the witness and shall include a statement of the witness that he is aware of his obligation to tell the truth and of his liability under applicable national law in the event of any breach of this obligation. The statement shall set out the language in which the witness shall give oral evidence, if necessary.
Summoning of witnesses to the oral hearing
Authors: Ahrens Hans-Jürgen
Published: March 2021

In its order summoning the witness, the Court shall also inform the witness of his duties and rights as a witness under Rules 178 and 179, including the sanctions which may be imposed on a defaulting witness.
Oral hearing
Authors: Ahrens Hans-Jürgen
Published: March 2021

Where the Court decides to summon the parties to an oral hearing, the date for the oral hearing shall be set as soon as possible after the date of receipt of the Application for preserving evidence.
Order to preserve evidence without hearing the defendant
Authors: Ahrens Hans-Jürgen
Published: March 2021

The Court may order measures to preserve evidence [Rule 196.1] without the defendant having been heard, in particular where any delay is likely to cause irreparable harm to the applicant or where there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available.
Letters rogatory
Authors: Ahrens Hans-Jürgen
Published: March 2021

The Court may, of its own motion, but only after hearing the parties, or on a reasoned request by a party, issue letters rogatory for the production of documents or the hearing of witnesses or experts by other competent courts or authorities outside the European Union.
Rule 208 Examination as to formal requirements, recording in the register, assignment to panel, designation of judge-rapporteur, single judge
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

An examination of the application by the Registry is necessary for a decision on an application for provisional measures. First, the Registry checks whether an opt-out has been declared for the patent at issue (Rule 16.1). If an opt-out has been declared, the Registry informs the applicant pursuant to Rule 16.1 and requests him to withdraw or to complete the application.
Rule 228 Fee for the appeal
Authors: Plassmann Clemens
Published: March 2021

Rule 228 UPCARoP specifies in more detail for the appeal the obligation of the parties to the proceedings, stipulated in Art 70 UPCA, to pay Court fees by imposing on the appellant the obligation to pay a fixed fee. The amount of such fee is set out in Rule 370.2 (Section IV, fee scale) at €11,000. Pursuant to Rule 371.1, this fee is to be paid by lodging of the appeal (for derogations from this requirement, → Rule 371 UPCARoP) by transfer to one of the bank accounts of the UPC stating the party or his representative, the patent number, and the case reference. Pursuant to Rule 371.2, proof of such payment is to be provided together with the Statement of appeal.
Rule 245 Lodging of an Application for rehearing
Authors: Dorn Stephan
Published: March 2021

A petitioner is adversely affected by a final decision if that decision did not give him all that he had applied for. It is necessary that the decision is totally or partly less than requested by the claimant (→ Art 76(1) UPCA) or that the defendant has lost to a full extent or partly. There is no threshold value; therefore, an application for rehearing is also admissible in cases with a low economic value. It is of no importance whether the reasons given in the decision contain unfavourable and/or incorrect statements on legal questions or facts. Nor is it important whether the decision unfavourable to the applicant was based on procedural or material reasons.
Rule 262 Public access to the register
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

The Court shall allow the Application unless legitimate reasons given by the party concerned for the confidentiality of the information clearly outweigh the interest of the applicant to access such information.
Service outside the Contracting Member States
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

The CMSs have not provided any rules in the Rules of Procedure for service outside the territory of the CMSs. The reason is that the CMSs are not competent to regulate service outside their territory. For extraterritorial service, general international service law (including Union law for states which are not CMSs) is applicable. Rule 274 refers to these provisions.
Resumption of proceedings
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Any decision referred to in Rule 296.2 ordering the resumption of proceedings before the end of the stay shall be made by order of the judge-rapporteur after hearing the parties. The judge-rapporteur may refer the matter to the panel.
Consequences for the proceedings
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

The Court uses its discretion to decide the consequences on the proceedings of a change in parties. In principle, the proceedings should remain unchanged as they are constituted at the time of the order on a change in parties. The change in parties should not have the consequence that parts of the proceedings have to be repeated. A change in parties is ordered by the Court mainly for reasons of procedural economy and is admissible where it would be superfluous and cause an unnecessary doubling of work to force a party to bring an independent new action against a new party. Therefore, the aim of Court should be to use the state of proceedings already reached for a decision involving the new party and to avoid any unnecessary work on identical problems.
Statement in intervention
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

The information of the parties to the proceedings on the order accepting admissibility of the application for an intervention may be given by serving the order on the parties and the intervener pursuant to Rule 314.
Forced intervention
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Rule 316A regulates a qualified invitation to intervene which will have an intervention effect subject to the requirements of Rules 316.1 and 316.2 even where the invited person does not intervene.
Application by both parties to use of the language in which the patent was granted as language of the proceedings
Authors: Keussen Christoph
Published: March 2021

At any time during the written procedure, any party may lodge an Application by both parties to use the language in which the patent was granted as language of the proceedings, in accordance with Article 49(3) of the Agreement. The Application shall state that both parties agree to use the language in which the patent was granted as the language of the proceedings.
Deliberations
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 344 governs the procedure of deliberations of the panels of the UPC. The term deliberation includes the expression of opinions, discussion thereof, and the vote. Deliberation in closed sessions is intended to guarantee the uniformity and unity of the decisions which will safeguard the external reputation of the UPC. The term closed session seems to imply the requirement of the physical presence of the judges. This, however, is not the case. Rather, Rule 344 also applies to electronic deliberations and voting.
Rectification of decisions and orders
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

The Court may, by way of order, of its own motion or on application by a party made within one month of service of the decision or order to be rectified, after hearing the parties, rectify clerical mistakes, errors in calculation and obvious slips in the decision or order.
Application to set aside a decision by default
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Para 1 allows the defaulting party to lodge an Application ato set aside the decision within one month. The application is called an objection and constitutes a special remedy against decisions by default. The possibility of objection is explicitly mentioned in Art 37(1) cl 2 UPC Statute where a party fails to file written submissions in defence or fails to appear at the oral hearing. The possibility of objecting is not, however, limited to these cases (→ Rule 355 UPCARoP). An Application to set aside a decision by default must be lodged within one month of service of the decision to the Court which issued the decision by default and does not, therefore, take the proceedings to a higher instance.
Conditions for granting legal aid
Authors: Gundt Miriam
Published: March 2021

Unlike German law, only natural persons can apply for legal aid. Such persons must have European citizenship or lawfully reside in an EU MS.
Application for legal aid
Authors: Gundt Miriam
Published: March 2021

In para 1, it is first of all clarified that an application for legal aid can be lodged both before and after the respective proceedings have been initiated before the Court.
EU Banking and Insurance Insolvency
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Following the chaotic effects of the global financial crisis on European financial markets, the legislative regime introduced by the European Union (EU) represents a dramatic new approach to bank insolvency law, and will have a profound effect on the way banks function. The second edition of EU Banking and Insurance Insolvency evaluates these important developments and their implications for the Eurozone countries. A comprehensive general introduction sets out the EU insolvency law framework and the principles which govern financial institutions. The book provides detailed commentary on the Bank Recovery and Resolution Directive (BRRD) and Single Resolution Mechanism Regulation (SRMR), the legislative instruments central to the EU's response to the crisis, intended to harmonize Member States law. It considers the new powers given to government authorities under the BRRD to write down shares and debt instruments issued by banks, and the function of the newly created 'Single Resolution Board'. Commentary on the Winding-Up Directive (2001/24/EC) and the Insurance Insolvency Directive (2001/17/EC) discusses the significant changes these statutes have undergone as a consequence of the adoption of the BRRD and SRMR, as well as several high-profile court cases decided on the interpretation of these two statutes, including the Landsbanki and Kaupthing cases, and the Lehman Brothers, Isis Investments, and Heritable Bank cases. This is an invaluable practitioner guide to the new European banking insolvency regime, written by experts in the field.
The EU Financial Institution Insolvency Law Framework
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Directive 2001/17/EC on the reorganisation and winding up of insurance undertakings (IWUD) had to be implemented in the laws of the Member States before 20 April 2003 (Article 31 IWUD). In recital (2) it states that: ‘The insurance directives providing a single authorisation with a Community scope for insurance undertakings do not contain coordination rules in the event of winding-up proceedings’. It continues:
Commentary on Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Articles 1 and 2 determine the scope of the Credit Institutions Directive (CIWUD). Article 1(3) until and including Article 1(6) is the result of the amendment of the CIWUD by the Bank Recovery and Resolution Directive (BRRD) (see Article 117 Directive 2014/59/EU). Several subjects and definitions have already been discussed in a broader systematic context in the general introduction of this book, especially the general principles applicable to international insolvency cases of multinational banks and the specific EC directives which create a pan-European framework relating to the reorganisation and winding up of credit institutions: the BRRD and the Single Resolution Mechanism Regulation (SRMR), the Deposit Guarantee Scheme (DGS) Directive 2014, the Settlement Finality Directive, and the Collateral Directive. When consulting this commentary, reference should be made to the general introduction.
Commentary on Title IV of Directive 2009/138/EC on the Taking up and Pursuit of the Business of Insurance and Reinsurance (Solvency II)
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Until 2009, the European law of insurance was set out in a plethora of different Directives. The key legislation dealing with insurance insolvency was Directive 2001/17/EC on the reorganisation and winding-up of insurance undertakings (IWUD).
Title I: Scope, Definitions, and Authorities
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

In Part I, Chapter 1 at paras 1.22 ff, we set out the context in which the Bank Recovery and Resolution Directive (BRRD) was drafted and how it aims to harmonize, in short, substantive bank insolvency law. Together with the Single Resolution Mechanism Regulation (SRMR), the BRRD forms the second pillar of the Banking Union and intends ‘[t]‌o provide authorities with a credible set of tools to intervene sufficiently early and quickly in an unsound or failing institution as to ensure the continuity of the institution’s critical financial and economic functions, while minimising the impact of the institution’s failure on the economy and financial system’ (recital (15)). The BRRD had to be implemented into national law by 31 December 2014.
Article 26 TFEU
Authors: Klamert Marcus , Lewis Alexandre-Xavier-Pierre
Published: March 2021

Article 14 EC The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
Article 32 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 27 EC In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by the need to promote trade between Member States and third countries
Chapter 1 Workers
Authors: Martin Denis
Published: March 2021

In 1957, the authors of the Treaty only had economically active persons in mind when they expressed in what was then Article 3(c) EEC Treaty that for the purpose of establishing a ‘common market’, the activities of the Community shall include ‘the abolition, as between Member States, of obstacles to freedom of persons’. Those ‘persons’ were employed workers (now Article 45 TFEU) and the self-employed (now Article 49 TFEU). The EEC Treaty put the Council in charge ‘as soon as this Treaty enters into force’, to issue directives and adopt regulations with a view to ensuring freedom of movement. The first of those regulations was adopted in 1961.
Chapter 2 Right of Establishment
Authors: Tomkin Jonathan
Published: March 2021

The right of establishment entitles Union citizens and entities established in the Union to set up and pursue an economic activity in any MS of their choosing. The right entails the freedom both to set up as an independent or self-employed person as well as to form an agency, branch, or subsidiary. In addition, Union citizens and entities seeking to pursue an economic activity in another MS on the basis of the right of establishment are to be subject to the same conditions as those applicable to nationals of the host MS.
Chapter 3 Freedom to Provide Services
Authors: Tomkin Jonathan
Published: March 2021

Articles 56 to 62 of the Treaty provide for the right of Union citizens and entities to deliver and receive services throughout the Union.
Article 65 TFEU
Authors: Steiblytė Audronė , Tomkin Jonathan
Published: March 2021

Article 58 EC The provisions of Article 63 shall be without prejudice to the right of Member States.
Article 12 TEU
Authors: Lock Tobias
Published: March 2021

National Parliaments contribute actively to the good functioning of the Union through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union.
Article 74 TFEU
Authors: Wilderspin Michael
Published: March 2021

Article 66 EC The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by the Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.
Article 89 TFEU
Authors: Bogensberger Wolfgang
Published: March 2021

Article 32 TEU The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
Article 106 TFEU
Authors: Kellerbauer Manuel , Rusche Tim Maxian
Published: March 2021

Article 86 EC In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in the Treaties, in particular to those rules provided for in Article 18 and Articles 101 to 109.
Article 113 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 93 EC The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.
Article 114 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 95 EC Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
Article 116 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 96 EC Where the Commission finds that a difference between the provisions laid down by law, regulation or administrative action in Member States is distorting the conditions of competition in the internal market and that the resultant distortion needs to be eliminated, it shall consult the Member States concerned.
Article 118 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.
Article 119 TFEU
Authors: Flynn Leo
Published: March 2021

Article 4 EC For the purposes set out in Article 3 of the Treaty on European Union, the activities of the Member States and the Union shall include, as provided in the Treaties, the adoption of an economic policy which is based on the close coordination of Member States’ economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition.
Article 126 TFEU
Authors: Flynn Leo
Published: March 2021

Article 104 EC Member States shall avoid excessive government deficits.