A guide to the UPC and the UP - Flipbook - Page 321
16-68 It is unclear why there is a reference to evidence being destroyed, or to r.197 RoP in r.212(1)
RoP. R.197 RoP is directed to the same points (delay and destruction), but in relation to orders
to preserve evidence (saisies). There appear to be three possible interpretations: (i) it may be a
reference only to the irreparable harm aspect as r.197(1) RoP uses the word “or” between delay
causing irreparable harm and the risk to the evidence; (ii) it may be a reference to both
irreparable harm and preservation of evidence notwithstanding that the preservation of
evidence will not be achieved per se by a provisional or protective measure; or (iii) it may be a
reference to the irreparable harm and to the objective of the relevant measure which in relation
to an injunction, for example, is to prevent or cease infringement. The latter would strain the
natural reading of r.197(1) RoP as assets and property are not the same thing as evidence.
However, it is notable that in the UPCA, art.62(5) refers to arts 60(5) to (9), which refer to
destruction of evidence and the like in relation to saisies, and “shall apply by analogy to the
measures referred to in this Article”. This may be what the drafter of r.212(1) RoP had in
contemplation. Clarification from the Court is required.
16-69 If provisional measures are ordered without the defendant being heard, r.212(2) RoP requires
that the defendant be given notice of the provisional measures “without delay and at the latest
immediately at the time of execution of the measures”. The rule does not say whether the
Court or the applicant is to inform the defendant of the order; generally the Court deals with
the service of proceedings and the like. If the Court is to inform the defendant, it may affect
how quickly an applicant can execute an order.
Security for Compensation
16-70 R.211(5) RoP provides the Court with the power to order the applicant to provide security
for the harm the defendant is likely to suffer as a result of the granting of the provisional
injunction. The Court must make an order of this type where the defendant is not heard unless
there are special circumstances not to do so. Such special circumstances might occur if the
defendant has suffered no loss by the granting of the injunction, such as in the case of an
innocent intermediary whose services are used by the defendant. The Expert Group of the
Preparatory Committee also commented that special circumstances might arise in cases of
extreme urgency where the applicant has not had time to organise the appropriate security.
R.211(5) RoP refers to the security being given either by deposit or by bank guarantee.
This could present a serious obstacle to an applicant if the damage the defendant is likely
to suffer is assessed as being considerable. In the Netherlands, the court only has the
discretionary power to grant an ex parte injunction with the order for the claimant to
provide security for a specified amount. In Germany, the court may grant a provisional
(preliminary) injunction after the claimant provides security. However, this is largely the
exception rather than the rule.
Review of the Order
16-71 The defendant is entitled to request a review of the provisional measures if they have been
made ex parte. 74 The review may possibly be heard by the same panel as heard the ex parte
application. The review is separate from and in addition to any appeal. Only following the inter
partes review may the order be appealed. 75
16-72 The defendant must make the request within 30 days after the execution of the measures,
giving the reasons why the order should be revoked or modified and providing the facts and
evidence relied on. The Court must hold the oral hearing without delay 76 and following the
hearing the order may be revoked, modified or confirmed. In the event that the order is
modified or revoked, the Court shall oblige the persons to whom confidential information has
74
75
76
r.212(3) RoP referring to rr.197(3) and 197(4).
art.73(1) UPCA provides that an appeal may be brought by “any party which has been unsuccessful”.
r.195 RoP is referred to but reference in relation to provisional measures should be to r.210 RoP.
See paragraphs 16-51 to 16-54.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 311
