A guide to the UPC and the UP - Flipbook - Page 296
of the SoC, 94 as well as the date of the decision on the merits and the action number of the file.
The application may also contain a request for an order to lay open books in which case the
applicant must provide the matters set out in r.141(b) to (d), being the details required in the
request to lay open books. 95
15-68 Should the applicant already have all the information necessary to assess the damage suffered,
it must indicate in the application the redress and the interest requested. The applicant should
also put forward the facts relied upon, the calculations concerning lost profits or profits made
by the unsuccessful party, the evidence relied upon and an assessment of the amount of
damages due. The applicant must also specify whether the decision on the merits is subject to
appeal. Alternatively, the applicant must supply this information after any procedure for the
laying open of books is complete. 96
Fixed and Value-Based Fees for the Application for the Determination of Damages
15-69 As damages proceedings are a separate procedure, a new fee is to be paid by
the applicant. Indeed, the application is subject to payment of both a fixed fee of €3,000
and a value-based fee. 97 If the damages assessment in the application for the determination
of damages 98 exceeds €500,000, a value-based fee is due. The value-based fee is based on a
sliding scale, with the maximum payment of €325,000 payable for claims over €50 million. 99
15-70 Both the fixed fee and the value based fee is payable at the time of lodging the application 100
and the application is not deemed to have been lodged until both have been paid. 101 If the
judge-rapporteur varies the value-based fee, and determines a higher value, the remaining fees
due are payable within 10 days of service of the order determining the value of the action.
Where the value is lower, the Court will reimburse overpaid fees. 102
15-71 During the public consultation on the RoP, several contributors questioned whether the
payment of an extra value-based fee was really appropriate where such a fee has already been
paid in the original infringement proceedings. These comments were disregarded; the Expert
Group of the Preparatory Committee considered that requiring an additional value-based fee
would be advisable in order to discourage frivolous monetary claims. 103
Formal Examination by the Registry and Recording in the Register
15-72 Once the application is lodged, the Registry examines the application to ensure that it has been
made in time, that the basic details in relation to the claim have been made and a note of
whether the decision on the merits is subject to an appeal and whether the fixed fee has been
paid. 104 Should any element be missing or there is an issue with the requested fee, the Registry
will invite the applicant to correct the deficiencies within a time period that it will specify 105
and inform the claimant that if the deficiencies are not corrected or the fee due is not paid
within the said time period, a decision by default may be given in accordance with r.355 RoP. 106
Indeed, in that event, the Registry will inform a judge of the relevant division who may then
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r.131(1)(a) referring to r.13(1)(a) to (d) RoP. See chapter 12 (Written Procedure) paragraph 12-34.
r.131(1)(b) and (c) RoP. See paragraph 15-86.
r.131(2)(a) to (e) RoP.
rr.132 and 133 and part 6 RoP.
Supplied either at the time of lodging the application for damages or after the laying open of books (r.371(4) RoP).
part 6 RoP.
r.371(4) RoP.
r.15(2) RoP.
r.371(4) RoP. For details on the calculation of fees, see chapter 20 (Court Fees and Recoverable Costs).
“Responses to the Public Consultation on the [15th draft] Rules of Procedure of the UPC: Digest of
Comments Received” 6 March 2014, p.106.
r.134(1) RoP referring to rr.126, 131(1), 131(2)(d) and 132 RoP.
r.134(2) RoP.
r.134(3) RoP referring to rr.16(4) and (5) RoP.
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A Guide to the UPC and the UP 286
