bluuebunny/crossref_metadata_2025 huggingface dataset:
International Registrations
Authors: Stone David
Published: March 2021

The Hague Agreement Concerning the International Deposit of Industrial Designs provides for a system of international registration of designs in the jurisdictions that are members. By making a single application to WIPO in Geneva, an applicant can obtain a design registration in one or more jurisdictions. The system is not dissimilar to the Madrid Agreement for international registration of trade marks. It is important to remember that, like the Madrid system, the Hague Agreement leads to a bundle of national rights, rather than a single right covering the various designated territories. Whilst the International Registration can be assigned or renewed as one, the rights obtained are subject to the relevant design laws in each territory.
A Taxonomy of Internet Intermediaries
Authors: Riordan Jaani
Published: March 2021

Overview. This chapter introduces the concept of an internet intermediary and situates their activities within the layered, modular network architecture of the internet. The services considered in this work take many forms, ranging from operators of network equipment to administrators of bulletin boards. Not all providers of internet services are properly described as ‘intermediaries’ as such, and are not necessarily to be treated comparably. Services may consist of different activities or contribute in different ways to wrongdoing. Some entities supply many distinct services which vary in their complexity, control, mental state, and degree of passivity. This makes it crucial to describe these activities accurately and with precision. As Arnold J has explained in the context of blocking injunctions, when considering questions of intermediary liability ‘it is important to consider the nature of the infringing act and its relationship with the service in question’.
The New Trade Mark ‘Package’
Authors: Mühlendahl Alexander , Botis Dimitris , Maniatis Spyros , Wiseman Imogen
Published: March 2021

Trade mark protection in Europe, when the European Economic Community was established in 1957, was territorial in nature, and the respective trade mark systems varied widely. Reforms were undertaken in some of the original six and eventually nine Member States, highlighted by the creation of a uniform trade mark system for the three Benelux countries in 1970, and the introduction of the requirement of use in Germany in 1967.
Insolvency Proceedings of Members of a Group of Companies
Authors: Schmidt Jessica
Published: March 2021

For the purposes of points (b) and (c), all or some of the insolvency practitioners referred to in paragraph 1 may agree to grant additional powers to an insolvency practitioner appointed in one of the proceedings where such an agreement is permitted by the rules applicable to each of the proceedings. They may also agree on the allocation of certain tasks amongst them, where such allocation of tasks is permitted by the rules applicable to each of the proceedings.
Transitional and Final Provisions
Authors: van Zwieten Kristin
Published: March 2021

Article 84 should be read together with Article 91 of the recast EIR. Article 91 provides for the repeal of the EIR 2000. The effect of Article 84(2) is that, notwithstanding this repeal provision, the EIR 2000 will continue to apply to insolvency proceedings opened ‘before’ 26 June 2017. This is subject to the obvious (but nevertheless important) proviso that the only kinds of proceedings that will be subject to the EIR 2000 during this interim period are ones capable of falling within the scope of the EIR 2000. This should be determined by consulting Annex A of the EIR 2000, which contains an exhaustive list of Member State proceedings to which the EIR 2000 applies. As to when proceedings should be considered ‘opened’, this should presumably be determined by the application of Article 2(f) of the EIR 2000, which defines ‘the time of the opening of proceedings’ for the purposes of that Regulation.
Legal Status, Information, and Cooperation Between Participants
Authors: Bork Reinhard , Mangano Renato
Published: March 2021

This chapter focuses on those involved in insolvency proceedings. In particular it deals with the courts involved, the insolvency practitioners (IPs) in charge of carrying out the proceedings, the position of creditors and their rights to lodge claims, and the legal status of the debtor. Particular attention is paid to those prescriptions which aim to establish a framework of effective communication and cooperation between courts, between IPs and courts, and between IPs themselves, and which allow IPs of main and secondary proceedings to conclude agreements and protocols of collaboration. The final part of the chapter outlines those prescriptions which establish a duty on the part of Member States to set up insolvency registers in their territory and to interconnect these at European level.
France
Authors: Valentin Jean-Marie , Paillotin Sylvain
Published: March 2021

The material contained herein is intended as a general guide only and is not intended to be a memorandum of law study, nor to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers, editors, and authors bear no responsibility for any errors or omissions contained therein.
Japan
Authors: Fukuoka Shinnosuke , Haruyama Toshihide
Published: March 2021

The information and opinions contained in this chapter are not intended to be a memorandum of law study, nor to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers, editors, and authors bear no responsibility for any errors or omissions contained therein.
Portugal
Authors: Monteiro Nuno Libano , Cotta Filipa , da Cunha Matos Francisco
Published: March 2021

The material contained herein is intended as a general guide only and is not intended to be a memorandum of law study, nor to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers, editors, and author bear no responsibility for any errors or omissions contained therein.
Beneficial Interests: Protection, Forfeiture, and Trust Termination
Authors: Panico Paolo
Published: March 2021

The various measures discussed in this chapter enable a settlor to retain control over the trust property by weakening the corresponding prerogatives of the beneficiaries. ‘Protective’ and ‘spendthrift’ trusts are a form of asset protection for those beneficiaries who, at least in the settlor’s view, are incapable of adequately managing their financial affairs. ‘Forfeiture’, ‘no-contest’, or ‘in terrorem’ provisions are meant to discourage the beneficiaries from challenging the trust or more generally the programme that the settlor has conceived for their benefit. To this effect, an important difference exists between the law and practice of England and that the United States.
Directors’ Decision-Making and Delegation
Authors: Willson William
Published: March 2021

Chapter 4 explained how management powers are vested in directors. This Section A explains how directors, acting as a board or by delegation, take decisions to carry out those functions. The Companies Acts have always left the procedure for decision-making by directors to the constitution of the company, but have required records of decisions to be kept.
Directors’ Terms Of Service
Authors: Brown Edward
Published: March 2021

The terms of service of a director will usually be a matter for negotiation between the parties and incorporated within a written service agreement. The Companies Act imposes certain restrictions and controls upon directors’ service agreements, which are discussed in Chapter 18. Chapter 26, Section C discusses the rules requiring quoted companies to disclose details of directors’ remuneration in a directors’ remuneration report, which must be approved by the members. This chapter considers the rights and duties of directors which result from their contractual obligations, as opposed to the general duties (as now codified within the 2006 Act) which are discussed in Chapters 10 to 17. It examines the tests that the courts will apply to determine whether a director is employed under a service agreement, together with the sources of contractual rights. It also considers the typical contractual rights and restrictions that apply in service agreements, including the rights to remuneration and expenses, confidentiality, and post-termination restrictions.
Duty To Exercise Reasonable Care, Skill, and Diligence
Authors: Arnold Mark , Haywood Marcus
Published: March 2021

The 2006 Act, s 175, quoted in paragraph 15.09 below, sets out the duty to avoid conflicts of interest. That duty is one of the paradigm manifestations of a director’s fiduciary duty of loyalty to the company. As Lord Upjohn said in Phipps v Boardman: ‘[T]he fundamental rule of equity [is] that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.’
Directors’ Liabilities: Exemption, Indemnification, and Ratification
Authors: Leahy Blair , Feld Andrew
Published: March 2021

The 2006 Act, Part 10, Chapter 7, ss 232–9, contains provisions relating to exemption and protection of directors from liabilities incurred in discharge of their functions. Sections 232–4 and 236–8 largely restate or preserve the former law, providing for general prohibitions on the exemption and indemnification of a director from liability or against liability that would otherwise attach to him in connection with any negligence, default, breach of trust, or breach of duty in relation to the company, subject, in the case of indemnification, to specified exceptions relating to insurance and certain third party indemnity provision. Section 235 is a new provision dealing with the indemnification of a director of a company that is a trustee of an occupational pension scheme.
Members’ Unfair Prejudice Claims and Winding-up Petitions
Authors: Peters Georgina
Published: March 2021

This chapter is concerned with proceedings brought by members who have suffered or may suffer damage or prejudice to their shareholding arising out of the conduct of directors.
Capital and Distributions
Authors: Robins Stephen
Published: March 2021

This chapter is primarily concerned with the functions, responsibilities, and liabilities of directors in respect of shares. Sections B to F cover the statutory provisions contained in the 2006 Act, Parts 17, 18, and 20 to 23.
Disqualification Proceedings
Authors: Amey Robert
Published: March 2021

Disqualification from being a director or in any way concerned in the management of a company without the leave of the court was brought into effect by the 1929 Act following the recommendations of the Greene Committee. An undischarged bankrupt was disqualified by virtue of his status and the court was given power to disqualify for up to five years promoters, directors, and officers of a company ordered to be wound up who had committed fraud and persons responsible for fraudulent trading. The 1948 Act extended the power to disqualify to officers of the company who had been guilty of any breach of duty.
US and UK Tender Offers, Exchange Offers, and Other Out-of-Court Restructurings
Authors: McDonald James , Tricot Danny , Ho Richard
Published: March 2021

This chapter examines several options available to financially troubled companies in connection with out-of-court restructurings in the US and the UK, and provides practical guidance for each option. Specifically, we discuss tender offers, exchange offers and amendments of outstanding debt securities, including the use of exit consents, and their use in conjunction with prepackaged or prearranged bankruptcies in the US. We also discuss the principal legal framework surrounding bond repurchases, issues relating to such repurchases, and the liability management strategy of combining the consensual nature of the tender offer with an exit consent in the UK.
Duties of Directors and Management of Distressed Companies
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C
Published: March 2021

When slightly modified, the oft-quoted statement from Hamlet, ‘This above all: to thine own [Corporation] be true …’ made by Polonius to his son, Laertes, before his departure to Paris states succinctly the principle underlying the laws of the UK and the US as to the fiduciary duties of company directors. That is to say, the interests of the company come first, ‘above all’ else, in business transactions.
Private Equity and Distressed Debt Funds Emerging Role in Preventing and Participating in Restructurings
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C
Published: March 2021

Private equity (‘PE’) investment and distressed debt investment covers a wide range of investment activity by pooled investment vehicles (ie, funds) in privately or publicly (through ‘take-private’ transactions or IPO’s) owned companies, using capital raised from institutional investors that are limited partners of the funds. Such investment activity can be broadly categorized according to the point at which the investment is made within the typical development cycle of a company: (i) initial venture capital provides seed capital for start-up businesses; (ii) growth capital assists early-stage companies with the growth of their operations; (iii) mezzanine financing, comprising the contribution of subordinated debt or preferred equity, provides further capital to more established businesses; (iv) leveraged buyouts (‘LBOs’) are pursued to acquire portfolio businesses with a proven track record of sales and financial performance; and (v) distressed debt investing (the focus of this chapter) which provides support to companies that are in financially precarious positions.
Date of effect
Authors: Tilmann Winfried
Published: March 2021

According to Art 3(1) EPUE Reg, an EP granted with the same set of claims in respect of all the participating Member States shall benefit from unitary effect in the participating Member States provided that its unitary effect has been registered in the Register for unitary patent protection. That means that the unitary effect of an EP arises on entry in the Register for unitary patent protection kept by the EPO (Art 2(d)).
Uniform protection
Authors: Tilmann Winfried
Published: March 2021

The European patent with unitary effect shall confer on its proprietor the right to prevent any third party from committing acts against which that patent provides protection throughout the territories of the participating Member States in which it has unitary effect, subject to applicable limitations.
Appointment of judges
Authors: Tochtermann Peter
Published: March 2021

Vacancies shall be publicly advertised and shall indicate the relevant eligibility criteria as set out in Article 2. The Advisory Committee shall give an opinion on candidates’ suitability to perform the duties of a judge of the Court. The opinion shall comprise a list of most suitable candidates. The list shall contain at least twice as many candidates as there are vacancies. Where necessary, the Advisory Committee may recommend that, prior to the decision on the appointment, a candidate judge receive training in patent litigation pursuant to Article 11(4)(a).
Application of competition law and the law relating to unfair competition
Authors: Tilmann Winfried
Published: March 2021

The acquisition of an EPUE may be impermissible under competition law only in special exceptional cases. This conceivably might hold true where a recognizable strategy of obstruction (Art 102 TFEU) is pursued by a company holding a dominant position with the aim of walling in competitors, without such patent proprietor having any intention of using the subject matter of patent protection himself. Also conceivably falling under the heading of inadmissible obstruction is the acquisition of a large number of patents by which the acquiring entity pursues the aim not of exploiting them but instead of using such acquisition to its own competitive advantage. The acquisition of such IP rights used merely for blockading purposes may qualify as part of the aforementioned strategy of obstruction and as such violate Art 102 TFEU. This may make it impermissible to invoke the patent: the competitor affected can raise the objection of abuse of a dominant position, which the UPC is in the position to consider (Art 32(1)(a) UPCA). As a general rule, such violation does not give rise to an obligation of cancellation because, if held by others actually using it themselves, it may turn out that the patent is no longer ‘flawed’.
Preamble/Recitals
Authors: Tilmann Winfried
Published: March 2021

CONSIDERING that cooperation amongst the Member States of the European Union in the field of patents contributes significantly to the integration process in Europe, in particular to the establishment of an internal market within the European Union characterised by the free movement of goods and services and the creation of a system ensuring that competition in the internal market is not distorted;
The Court
Authors: Büttner Tilmann
Published: March 2021

The UPC, universally referred to as ‘the Court’ throughout the text of the Agreement pursuant to Art 2(a) UPCA, is to be regarded legally as a legal entity sui generis (Art 4(1) UPCA) and structurally as a uniform entity. The Court entity as a whole comprises both the judiciary structures, which are the Court of First Instance and the Court of Appeal, and the non-judiciary structures, which are the Registry with sub-registries set up at all divisions of the Court (Art 10(1) and (2) UPCA). The Court’s structure visibly follows that of the CJEU which, according to Art 19 TFEU, comprises as a unitary court the European Court of Justice, the General Court, and the Civil Service Tribunal, thus establishing a complete system of courts.
The Registry
Authors: Büttner Tilmann
Published: March 2021

Within the Court, which is a unified entity, the Registry is a non-jurisdiction active structure. The duties of the Registry are clearly divided from the jurisdictional entities of the Court of First Instance and of the Court of Appeal. Furthermore, the Registry is independent: the jurisdictional active panels are not entitled to give directions to the Registry or to the Registrar.
Right to prevent the direct use of the invention
Authors: Busche Jan
Published: March 2021

When patent protection is conferred, the patent proprietor is granted an absolute right to the invention that is effective against anyone and that falls within the protection of property. The scope of protection of the patent, ie that which the patent proprietor can claim to be protected, follows from the patent claims, which must be construed using descriptions and drawings (Art 69 EPC in conjunction with the Protocol on the Interpretation of Art 69 EPC). Art 25 UPCA stipulates a prohibition on use by third parties (as the opposite of the right to the patent). In this respect, Art 25 UPCA covers the direct acts of use that fall within the prohibition.
International jurisdiction
Authors: Tilmann Winfried , Büttner Tilmann
Published: March 2021

The international jurisdiction of the Court shall be established in accordance with Regulation (EU) No 1215/2012 or, where applicable, on the basis of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention).
Budget of the Court
Authors: Tilmann Winfried
Published: March 2021

The first clause of para 1 provides that the budget of the Court will as a general rule be financed by the Court’s own financial revenues. It is only in addition to that and as necessary that it is to be financed by contributions from the CMSs, such financing to be required at least in the transitional period in accordance with Art 83 UPCA. Para 3 refers in connection with the fixing of Court fees to the ‘objective of a self-financing Court with [to be added: as a result] balanced finances’. It is justified to add ‘as a result’ because para 1 establishes an obligation of the Court to have a balanced budget without exception. What can be inferred from this is the obligation of the CMSs to set Court fees (the only source of revenue for the UPC) as soon as possible at such a level as to ensure that the budget is covered by such fees.
Permanent injunctions
Authors: Tilmann Winfried
Published: March 2021

Where a decision is taken finding an infringement of a patent, the Court may grant an injunction against the infringer aimed at prohibiting the continuation of the infringement. The Court may also grant such injunction against an intermediary whose services are being used by a third party to infringe a patent.
Award of damages
Authors: Tilmann Winfried
Published: March 2021

The Court shall, at the request of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in a patent infringing activity, to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement.
Article 79 Settlement
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

The parties may, at any time in the course of proceedings, conclude their case by way of settlement, which shall be confirmed by a decision of the Court. A patent may not be revoked or limited by way of settlement.
Article 81 Rehearing
Authors: Tilmann Winfried , Dorn Stephan
Published: March 2021

on discovery of a fact by the party requesting the rehearing, which is of such a nature as to be a decisive factor and which, when the decision was given, was unknown to the party requesting the rehearing; such request may only be granted on the basis of an act which was held, by a final decision of a national court, to constitute a criminal offence
Article 84 Signature, ratification and accession
Authors: Tilmann Winfried
Published: March 2021

The Agreement shall be subject to ratification in accordance with the respective constitutional requirements of the Member States. Instruments of ratification shall be deposited with the General Secretariat of the Council of the European Union (hereinafter referred to as “the depositary”).
Pool of Judges
Authors: Tochtermann Peter
Published: March 2021

Pursuant to Art 18 UPCA, a pool of judges is to be set up to which all legally qualified and technical judges belong. Arts 8(2)–(6) and 9(1) UPCA refer to that pool. The pool has the function of staffing the UPC with a sufficient number of judges as the Court will have a need for technically and legally qualified judges from the pool in addition to those who are permanent members of the division or section of the Court.
Application of the Rules and general principles of interpretation
Authors: Tilmann Winfried
Published: March 2021

For decisions and orders of the UPC (for the difference, → commentary on Art 73), it is generally the panels at the divisions of the Court of First Instance and at the Court of Appeal that are competent. Para 2 is a rule of interpretation which states that, where exclusive competence of the panel has not been provided, single judges (presiding judge, judge rapporteurs, standing judges) may perform the act. That is intended to enable a flexible, rapid type of proceedings particularly in cases where the members of the panel are not in close physical proximity at all times. of course, the interpretation rule need not be applied if a Rule of Procedure expressly confers competence for an act to a single judge (presiding judge, judge rapporteur, or standing judge).
Language of written pleadings and written evidence
Authors: Tilmann Winfried
Published: March 2021

Pursuant to Art 49(1) UPCA, the language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the CMS hosting the relevant division, or the official language(s) designated by CMSs sharing a regional division.
Powers of the Court
Authors: Tilmann Winfried
Published: March 2021

Rules 331–337 give the Court extensive powers for active case management. This includes communication with the parties to inform them of the requests and requirements of the Court (Rule 334(c)) or through Rule 334(j) the right to request the parties to provide clarification on certain points, answer specific questions, or produce evidence or lodge documents (Rule 103).
Rule 54: Examination as to formal requirements and further schedule
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 62: Exchange of written pleadings (action for declaration of non-infringement)
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

For the procedure of the action for declaration of non-infringement, Rule 61 repeats the parallel order of the written proceedings in infringement actions pursuant to Rule 12. Also, in the written proceedings of the action for declaration of non-infringement there are, in principle, two exchanges of written pleadings, ie the Statement for a declaration of non-infringement of the claimant, the Defence to that Statement, the Reply to the Defence to the Statement and the Rejoinder to the Reply. The exchange of a Reply to the Defence to the Statement for a declaration of non-infringement and of a Rejoinder to the Reply is indicated as being optional. The choice is for the claimant: he can answer a Defence to the Statement for a declaration of non-infringement with another writ (Reply to the Defence to the Statement for a declaration of non-infringement); however, he is not obliged to do so. If he submits a Reply, the defendant can answer with a Rejoinder to the Reply.
Rule 67: Lodging of the Defence to the Statement for a declaration of non-infringement
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

The time limit for the Defence to the Statement for a declaration of non-infringement (two months) differs from the time limit for the Defence to the Statement of claim in the infringement proceedings (three months). It is appropriate for this time limit to be shorter. Where the defendant in an action for a declaration of non-infringement has claimed that the act is an infringement, he is clearly already well informed of the facts of the case and there is no element of surprise in the situation. In addition, the claimant in this instance presents the defendant with an indication of the facts relied on (Rule 63(f)) and there is no necessity for the time-consuming research on the state of the art which is normally conducted by the defendant in an infringement action (Rule 25.1).
Rule 85: Stages of the proceedings (ex parte proceedings)
Authors: Kuczera Markus
Published: March 2021

Rule 85.1 applies to all actions against decisions of the EPO in the context of Art 9 EPUE Reg—except for proceedings dealing with an EPO decision not to grant a request for unitary effect of an EP. In the latter case, Rule 97 applies as lex specialis.
Rule 87: Grounds for annulling or altering a decision of the Office
Authors: Kuczera Markus
Published: March 2021

Each of the infringements discussed below is a reason for a claimant to bring an action. However, that does not necessarily imply that the claimant is also entitled to bring an action. For this to be the case, the prerequisites of Art 47(7) UPCA must be met. This means that the claimant must be affected by the decision of the EPO.
Simultaneous interpretation during oral hearings
Authors: Tochtermann Peter
Published: March 2021

The judge-rapporteur shall decide whether and to what extent simultaneous interpretation is appropriate and shall instruct the Registry to make all necessary arrangements for simultaneous interpretation. In the event that the judge-rapporteur refuses to order simultaneous interpretation the parties may request arrangements to be made, so far as practically possible, for simultaneous interpretation at their cost.
Rule 111 Role of the presiding judge (Case management)
Authors: Tochtermann Peter
Published: March 2021

In managing the action, the presiding judge has to apply the general principles of case management set out in Rule 332 with the competences set out in Rule 334. The presiding judge may—as with the judge rapporteur during the interim procedure—inform the parties about the services offered by the Patent Mediation and Arbitration Centre and support the parties proactively in reaching an amicable resolution of their dispute (→ Rule 332(e) and (f) UPCARoP).
Fee for the Application for the determination of damages
Authors: Plassmann Clemens
Published: March 2021

The applicant shall pay the fixed fee and, where applicable, the value based fee for the determination of damages in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.
Rule 139 Reply to the Defence to the Application for the determination of damages and Rejoinder to the Reply
Authors: Steininger Steffen
Published: March 2021

The applicant may within one month lodge a Reply to the Defence to the Application for the determination of damages, limited to the matters raised in the Defence. The unsuccessful party may lodge a Rejoinder to the Reply within one month of service of the Reply, limited to the matters raised in the Reply.
Rule 142 Defence of the unsuccessful party, Reply to the Defence and Rejoinder to the Reply
Authors: Steininger Steffen
Published: March 2021

This provision indicates the options of how the unsuccessful party can react to a Request to lay open books. Further, para 3 provides for a Reply to the Defence and a Rejoinder to the Reply as further written pleadings. The specified time periods serve the principle of expeditious decisions as set out in the Preamble to the UPCA.
Compensation for costs of experts
Authors: Plassmann Clemens , Dold Dennis
Published: March 2021

The compensation for costs of experts of the parties [Rule 181] exceeding the expenses referred to in Rule 180.1 shall be based on the rates that are customary in the respective sector, with due regard to the required expertise, the complexity of the issue and the time spent by the expert for the services rendered.
Duty to produce evidence
Authors: Ahrens Hans-Jürgen
Published: March 2021

Evidence available to a party regarding a statement of fact that is contested or likely to be contested by the other party must be produced by the party making that statement of fact.
Application for the hearing of a witness in person
Authors: Ahrens Hans-Jürgen
Published: March 2021

Pursuant to Rule 176 UPCARoP, an application must be made in order for a witness to be heard by the Court. However, the Court may also order of its own motion that a witness is heard (Rule 177.1). With respect to the parties’ right to determine the supporting evidence for their case (Art 43 UPCA), a hearing ordered by the Court of its own motion nevertheless at least requires that the witness is designated by a party and a hearing of that witness is offered. Such an offer can be made irrespective of a formal application for the hearing of a witness in accordance with Rule 176.
Appointment of a court expert
Authors: Ahrens Hans-Jürgen
Published: March 2021

Where the Court must resolv e a specific technical or other question in relation to the action, it may of its own motion, and after hearing the parties, appoint a court expert.
Hearing of a court expert
Authors: Ahrens Hans-Jürgen
Published: March 2021

Rule 188 makes reference to provisions for witness evidence stipulated in Rules 178–180. The same referencing technique is used in Rule 181 for experts appointed by the parties; in this case, however, the reference is extended to Rules 175–177.
Rule 212 Order on provisional measures without hearing the defendant
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

In exceptional cases an order on provisional measures can be rendered without hearing the defendant. This power of the Court is based on Arts 62(5) and 60(5) UPCA and is regulated in more detail in Rule 212 UPCARoP.
Rule 230 Recording in the register (Court of Appeal)
Authors: Büttner Tilmann
Published: March 2021

The timely and formally correct lodging of the Statement of appeal triggers various formal duties that belong in one part to the administrative side of the Court and in another to its judicial competence.
Rule 233 Preliminary examination of the Statement of grounds of appeal
Authors: Büttner Tilmann
Published: March 2021

In addition to the Registrar’s examination of the formal requirements for the appeal pursuant to Rule 229, the judge rapporteur will subsequently examine the Statement of grounds of appeal (not the Statement of appeal) to assess whether it contains the mandatory content for admissibility of the appeal.
Rule 236 Contents of the Statement of response
Authors: Büttner Tilmann
Published: March 2021

The Statement of response is the first brief of the respondent in the appeal proceedings and must therefore contain both formal and substantial information. For the formalities, there needs to be information in the Statement of response that identifies the parties and the appeal action. For that reason, the names and/or business names of the parties, names of their representatives, postal and electronic accessibility for service, and names and addresses of persons authorized to accept service must be given. If the information given by the appellant, which must already be contained in the Statement of appeal pursuant to Rule 225, is not correct, the respondent must correct the information if he knows that there is an error, especially concerning his own details. The Statement of response must also indicate the action number of the appeal file.
Rule 238 Reply to a Statement of cross-appeal and further schedule
Authors: Büttner Tilmann
Published: March 2021

If the respondent lodges a Statement of cross-appeal, the appellant has the opportunity to reply on that in a formalized manner.
Recording in the register
Authors: Büttner Tilmann
Published: March 2021

Rule 251 regulates an analogous application of Rule 230.1. There, it is provided that the Registry, if the Statement of appeal satisfies the conditions of Rule 229.1: (1) records the date of receipt of the Statement of appeal and a case number in the appeal file; (2) records the appeal file in the register; (3) notifies the appellant of the case number and the date of receipt; and (4) serves the Statement of appeal on all parties of the first instance. Analogous application of this Rule means that the terms ‘Statement of application’, ‘file of the rehearing’, ‘applicant’, ‘parties to proceeding to be re-opened’ are used instead of ‘Statement of appeal’, ‘appeal file’, ‘appellant’, ‘parties of first instance’. Moreover, the Statement of application is not required to satisfy the conditions set out in Rule 229.1 but instead those of Rule 252 for the Registry to perform these steps.
Rule 262A Protection of Confidential Information
Authors: Tilmann Winfried
Published: March 2021

Rule 262A UPCARoP provides for the protection of confidential information contained in documents or oral information of one party and the relationship to the other party. The Rules cited at the beginning of para 1 regulate specific cases of exceptions from the principle that all information given by one party and documents provided by it must be disclosed to the other party. This is a basic principle for proceedings between parties having equal rights. The Court can normally decide only on facts accessible to both parties in the proceedings. This is a direct consequence of the right to be heard. Some of these special Rules also give the Court the power to limit to specific persons access to certain information contained in the pleadings of one party or the collection of evidence by one party and its use.
Rule 272 Notice of service and non-service of the Statement of claim
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

The Registry informs the claimant pursuant to para 1 about the date on which the Statement of claim is deemed to have been served under Rule 271.6. This information gives the claimant the possibility of assessing the time schedule of the further proceedings. For example, the Statement of defence must be lodged at least three months after service of the Statement of claim pursuant to Rule 23.
Rule 277 Decision by default under Part 5, Chapter 11
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

Rule 277 governs the minimum requirements for service of the Statement of claim which must be fulfilled in order for the UPC to issue a decision by default. If the defendant fails to lodge a Statement of defence within three months of service of the Statement of claim pursuant to Rule 23 cl 1, a decision by default is issued pursuant to Rule 355. The substantial legal consequence means that the competent panel of the Court must be convinced of proper service prior to issuing a decision by default. Rule 277 contains two alternative requirements for proper service and ensures that service errors do not lead to a decision by default to the detriment of the addressee of the Statement of claim. The provision protects the defendant.
Calculation of periods
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Any period of time prescribed by the Agreement, the Statute, these Rules or any order of the Court for the taking of any procedural step shall be laid down in terms of full days, weeks, months or years and shall be reckoned as follows.
Insolvency of a party
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Rule 311 concerns the consequences of national insolvency proceedings on the assets of a party in proceedings before the UPC. The national insolvency laws of the CMSs are not changed by the UPCA or by the Rules of Procedure, including by Rule 311.
No appeal against an order on the Application to intervene
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Pursuant to Rule 317, there is no isolated appeal against a decision of the Court refusing an application of a third party to intervene (→ Rule 314 UPCARoP). The reason for this is that a third party whose application has been refused is not a party and is not to be treated like a party (→ Rule 315.4 UPCARoP). A decision on intervention can be appealed only together with a decision on the merits pursuant to Art 73(2)(b)(i) UPCA. If that is the case, the third party’s appeal can be combined with an Application to intervene pursuant to Rule 313.
Review of case management orders
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 333 makes it possible for the parties to an action to subject to review by the panel the case management decisions and orders of the judge rapporteur and the presiding judge. With reference to the specific measure, then, responsibility for case management is thus transferred from the judge rapporteur or the presiding judge to all members of the panel, which then has to decide on the case management measure based on its overall responsibility.
Aim and scope
Authors: Gundt Miriam
Published: March 2021

Rule 375 defines the aim pursued by the rules on legal aid: ensuring effective access to the courts.
Type of proof
Authors: Gundt Miriam
Published: March 2021

To be admissible, the application must contain a statement of the facts and legal situation, with specific mention of the evidence to be presented. The application must also contain a statement regarding the economic and financial situation of the applicant.
Obtaining A Proprietary Interest in an Unconnected Asset by Operation of Law
Authors: Calnan Richard
Published: March 2021

This chapter considers the circumstances in which the courts impose a proprietary interest in favour of a claimant over an asset which is not a substitute for the claimant’s own asset. It discusses when and why a constructive trust is imposed for breach of fiduciary duty. It looks at when a trust is imposed where one person uses another’s property, information, or opportunity. It considers when proprietary estoppel arises, and what its proprietary consequences are. It discusses to what extent remedial constructive trusts are available and when common law possessory liens or equitable liens are imposed.
Title I The Internal Market
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Article 26 provides for the establishment by the Union of the internal market (para 1), defines the internal market to be established (para 2), and provides a legal basis for guidelines to this end (para 3).
Article 29 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 24 EC Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
Article 30 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 25 EC Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
Article 31 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 26 EC Common Customs Tariff duties shall be fixed by the Council on a proposal from the Commission.
Chapter 3 Prohibition of Quantitative Restrictions between Member States
Authors: Klamert Marcus , Moustakali Maria , Tomkin Jonathan
Published: March 2021

Chapter 3 of the Title on the free movement of goods is devoted to the prohibition of quantitative restrictions and measures having equivalent effect. The provisions prohibiting quantitative restrictions initially appeared under Articles 30 to 37 EEC. They were renumbered as Articles 28 to 31 EC by the ToA and now appear under Articles 34 to 37 of the TFEU. The substance of the provisions has remained unchanged since their first appearance in the EEC Treaty.
Article 39 TFEU
Authors: Bouquet André , Erlbacher Friedrich , Lewis Alexandre-Xavier-Pierre
Published: March 2021

Article 33 EC The objectives of the common agricultural policy shall be to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour.
Title II Provisions on Democratic Principles
Authors: Lock Tobias
Published: March 2021

The inclusion of this title by the ToL can be seen as a reaction to the debate around an alleged democratic deficit of the EU. Some, including the German Federal Constitutional Court (BVerfG), rely on the controversial so-called ‘no demos thesis’ to demonstrate a lack of democracy at the EU level. The no demos thesis contends that in the absence of a European people there cannot be full democracy so that the EU’s democratic legitimation must ultimately come from the MS. Others are less categorical in their criticism, but point to a missing political contest over political authority and a ‘lack of direct democratic input legitimation in the form of elections and representation together with majoritarian decision-making.’ This contributes to a disconnection between the political preferences of voters and policy outcomes at the EU level. Moreover, many of the key actors—most importantly members of the EU Commission—cannot be removed from office by means of a popular vote.
Article 48 TFEU
Authors: Martin Denis
Published: March 2021

Article 42 EC The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self-employed migrant workers and their dependants.
Article 49 TFEU
Authors: Tomkin Jonathan
Published: March 2021

Article 43 EC Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Article 55 TFEU
Authors: Tomkin Jonathan
Published: March 2021

Article 294 EC MS shall accord nationals of the other MS the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 54, without prejudice to the application of the other provisions of the Treaties.
Article 10 TEU
Authors: Lock Tobias
Published: March 2021

Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.
Chapter 4 Capital and Payments
Authors: Tomkin Jonathan
Published: March 2021

Chapter 4 of the Treaty prohibits restrictions on the movement of capital and of payments.
Article 64 TFEU
Authors: Steiblytė Audronė , Tomkin Jonathan
Published: March 2021

Article 64 TFEU is one of three provisions in Chapter 4 that serve to limit the application of the free movement of capital as regards third countries. The two other (reverse order) provisions placing limitations on such movement are Articles 65(4) and 66 TFEU.
Article 11 TEU
Authors: Lock Tobias
Published: March 2021

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 24 of the Treaty on the Functioning of the European Union.
Chapter 1 General Provisions
Authors: Wilderspin Michael
Published: March 2021

Title V of Part Three TFEU is entitled ‘Area of freedom, security and justice’ and covers, broadly speaking, the issue of border controls at both internal and external frontiers, asylum, migration, combating of crime, police cooperation, and mutual recognition of judgments in both civil and criminal matters.
Article 72 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 64(1) EC and ex Article 33 TEU This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Chapter 4 Judicial Cooperation in Criminal Matters
Authors: Bogensberger Wolfgang
Published: March 2021

The ‘Judicial Cooperation in Criminal Matters’ (Chapter 4) forms part of the AFSJ (Title V) and aims at ensuring a high level of security (Article 67(3) TFEU). To achieve this objective the Union legislator may take ‘measures to prevent and combat crime, racism and xenophobia’ as well as ‘measures for coordination and cooperation between police and judicial authorities and other competent authorities’ and ‘the mutual recognition of judgments in criminal matters and, if necessary, … the approximation of criminal laws’ (Article 67(3) TFEU).
Article 83 TFEU
Authors: Bogensberger Wolfgang
Published: March 2021

Article 31 TEU The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
Chapter 5 Police Cooperation
Authors: Bogensberger Wolfgang
Published: March 2021

‘Police Cooperation’ (Chapter 5 of Title V) forms part of the AFSJ and aims at ensuring a high level of security. The means to achieve this objective are measures to prevent and combat crime, based on coordination and cooperation between the police, customs, and other specialized law enforcement authorities of the MS (Article 67(3) TFEU).