A guide to the UPC and the UP - Flipbook - Page 270
certain direction and to inform the parties of the Court’s preliminary view. Having said that,
a preliminary opinion is not mandatory and it is in the discretion of the Court whether to give
such a preliminary introduction and, if so, to what level of detail.
14-30 Contracting Member States have different traditions regarding preliminary introductions
by the courts; it will be interesting to see which judges will make use of this optional
preliminary introduction and which will prefer not to use it. For example, in German
patent infringement proceedings, it is common for the presiding judge to give a
preliminary introduction to the case with a varying level of detail. In contrast, in Ireland,
the claimant usually begin with an opening speech setting out its case.
Oral Submissions
14-31 The parties have a right to be heard at the oral hearing. Not only are the parties entitled to
make oral submissions, hearing the parties is stated to be one of the means by which the Court
obtains evidence. 72 From the perspective of German procedural law, hearing the parties is also
considered a means of evidence. However, it is only considered on a subsidiary basis 73 and it
must be carefully considered by the judges in the assessment of all the evidence. 74
14-32 The presiding judge may set time limits for the parties’ oral submissions in advance of the oral
hearing in order to ensure that the hearing is completed within one day. 75 The presiding judge
also has the authority to limit a party’s oral submissions, after consultation with the panel, if the
panel considers that it is sufficiently informed. 76 The restriction regarding the duration of oral
submissions is in line with the approach to submissions heard by the CJEU. There, parties are
also limited in their oral submission; up to 15 minutes in front of a chamber of three judges and
up to 20 minutes if the parties are in front of the Grand Chamber. 77 The difference between the
CJEU and the Court is that the latter makes determinations on matters of fact and facts must
therefore be discussed in argument as well as questions of law. To meet the target of
completing the oral hearing in one day will require active management by the presiding judge
and the cooperation of the parties.
Hearings of Witnesses and Experts
14-33 The means of giving or obtaining evidence includes hearing and questioning witnesses and
experts (including any Court appointed experts). 78 The hearing and questioning of any
witnesses or experts in person is not available as of right but has to be ordered during the
interim procedure. 79
14-34 During the interim procedure, the judge-rapporteur may have ordered a separate hearing of
witnesses and/or experts to take place before the panel. 80 This will presumably be the case, for
example, where it is thought that the oral submissions will take up a full day or more. It is not
clear what the duration of any separate hearing will be or when it will take place, other than it
will be at some point in time before the oral hearing. However, in the spirit of front-loading the
proceedings, where the relevant issues in dispute should have been narrowed considerably and
the witnesses and/or experts may have already had preparatory discussions with the
judge- rapporteur, 81 such a separate hearing should likely be completed within a day and within
72
73
74
75
76
77
78
79
80
81
art.53(1)(a) UPCA and r.170(2)(a) RoP.
s.445(1) German Civil Procedural Rules.
s.286 German Civil Procedural Rules.
r.113(1) RoP.
r.113(3) RoP.
Practice directions to parties concerning cases brought before the Court, r. 60. See https://eur-lex.europa.eu/legalcontent/en/TXT/?uri=CELEX%3A32020Q0214%2801%29 [Accessed 14 April 2023].
art.53(1)(d) and (e) UPCA.
r.112(2)(b) RoP. The procedures governing witnesses and experts and their duties are described in chapter 17 (Evidence).
r.104(g) RoP.
r.104(f) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 260
