A guide to the UPC and the UP - Flipbook - Page 131
Liability for Court Violations of EU law
7-79
The Contracting Member States are jointly and severally liable for damage resulting from an
infringement of EU law by the Court of Appeal, in accordance with EU law concerning noncontractual liability of Member States for damage caused by their national courts breaching
EU law. 119 Actions of the Court are directly attributable to each Member State individually,
including for the purposes of arts 258 to 260 TFEU, and to all Member States collectively. 120
7-80
Actions for damages for infringement of EU law are to be brought against a Member State: 121
– If the claimant has its residence or principal place of business, or, if no residence or principal
place of business, its place of business, in a Member State, the action is to be brought before
the competent authority of that Member State; and
– If the claimant has no residence, principal place of business or place of business in a
Member State, the action is to be brought before the competent authority of Luxembourg.
7-81
The competent authority shall apply the national law of the Member State concerned (lex fori),
with the exception of its private international law, to all questions not regulated by either EU
law or the UPCA. The claimant shall be entitled to obtain the entire amount of damages
awarded by the competent authority from the Member State against which the action was
brought. 122 However, the Member State paying damages is entitled to obtain proportional
contribution from the other Contracting Member States using the rules on apportionment set
out in arts 37(3) and (4) UPCA relating to the financing of the Court. The detailed rules governing
the Contracting Member States’ contribution in such circumstances are to be determined by the
Administrative Committee. 123
7-82
Where an action for damages has been brought against a Contracting Member State, the
President of the Court of Appeal must, as soon as practicable following a request from the
competent authority, provide it with copies of all pleadings, evidence, decisions and orders
available to the Court in its proceedings that are relevant to the action for damages.
The President of the Court of Appeal is entitled to comment in any such action. 124
Applicable Law before the National Courts
7-83
119
120
121
122
123
124
125
While the Court will apply the UPCA, there has been a lively discussion regarding the
question of which law the national courts will apply after a European patent is opted out
or if an action is brought before a national court during the transitional period of art.83(1)
UPCA, 125 that is, whether it will be national patent law or the respective provisions of the UPCA.
This controversy becomes clear when looking at figure 7-4 concerning the applicable law before
the national courts.
art.22(1) UPCA.
art.23 UPCA.
art.22(2) UPCA.
art.22(2)UPCA.
art.22(3) UPCA.
r.267 RoP.
See chapter 8 (Transitional Provisions (Including Opt-Outs and Opt-Ins)).
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 121
