A guide to the UPC and the UP - Flipbook - Page 273
Decision on the Merits and Reasons
14-45 The Court can either give its decision immediately after closure of the oral hearing,
providing reasons later, or it can give its decision as soon as possible after the hearing
but this must be done no later than six weeks after the oral hearing. 96 The decision will be
read in open Court 97 and recorded in the register. 98
14-46 The Court will make its decision in accordance with the requests submitted by the parties and
shall not award more than is requested (ne ultra petita). Further, decisions on the merits may
only be based on grounds, facts and evidence which were either submitted by the parties or
otherwise introduced by an order to the Court and on which the parties have had an
opportunity to present their comments. 99 This means that the Court will not investigate
the case independently.
14-47 The Court must give reasons for its decision; 100 the decision must also contain a summary of
the request and facts submitted by the parties and a statement of the facts and arguments on
which the Court bases its decision. 101 It must also comply with the formal requirements set
out in r.350(1) RoP which include the date of delivery and the names of the judges.
14-48 Decisions of the Court are to be taken by a majority of the panel. In the event of equal votes,
the vote of the presiding judge will prevail. 102 In exceptional circumstances, any judge may
express a dissenting opinion separately from the decision of the Court and any such dissenting
opinion is to be attached to the Court’s decision. 103 By setting the bar so high for dissenting
opinions (i.e. that they may only be expressed in exceptional circumstances), the UPCA intends
to discourage varying opinions in the interest of consistency and unity. 104 In contrast however
the CJEU does not have dissenting opinions even in exceptional circumstances.
Language of the Decision
14-49 Art.77(2) UPCA states that the decision must be delivered in the language of the proceedings.
However, where the “English limited rule” has been adopted, 105 the Court may deliver
its decision in the (or one of the) official language(s) of the Contracting Member State
hosting the division despite the fact that the proceedings have been conducted in English.
However, there is no provision for a translation of the decision into the language of the
proceedings (in this case, English). It is suggested that this exception to art.77(2) UPCA is an
oversight in the drafting of the RoP and if the judges do, on occasions, take advantage of being
able to deliver their judgment in the local language of the division, a certified translation into
English should also be provided.
Orders
Remedies
14-50 The Court has the power to make a wide range of orders against both the parties and, in some
cases, third parties. The Court may order permanent injunctions, certain corrective measures,
96
97
98
99
100
101
102
103
104
105
rr.118(6) and (7) RoP.
art.35(5) UPCA Statute.
r.350(5) RoP.
arts 76(1) and (2) UPCA.
r.118(6) RoP.
r.350(4) RoP.
art.78(1)UPCA.
art.78(2) and r.350(3) RoP.
To borrow a phrase from r.238A RoP.
r.14(2)(c)RoP. See chapter 11 (Overview of Procedure and General Procedural provisions) paragraphs 11-116 to 11-118.
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A Guide to the UPC and the UP 263
