A guide to the UPC and the UP - Flipbook - Page 368
Starting Proceedings after the Saisie
18-63 If the applicant does not start proceedings on the merits within the specified time limit, the
order for the saisie can be revoked, at the defendant’s request. 87 The time period is the longer
of 31 calendar days or 20 working days from the date specified in the Court’s order, with due
account being taken of the date that the report of the bailiff or other person carrying out the
saisie is presented. The time limit cannot be extended. 88
18-64 Despite the fact that the time will, in all likelihood, start running from the date that the report
is presented to the Court, the period allotted to the applicant will quickly disappear if the
defendant raises confidentiality issues over the report, thus delaying its delivery to the
applicant. It is regrettable that r.9(4) RoP does not allow the Court to extend this deadline,
even with the agreement of all parties. It could push an applicant into hasty and ill-considered
proceedings and make it impossible to deal properly with discussions about protecting the
confidentiality of certain passages in the report. By reference to saisie description practice in
Belgium, the 31 calendar or 20 working day deadline is worded identically to r.198(1) RoP,
giving the applicant a similarly tight deadline to consider whether main proceedings are
justified, and where to initiate them.
18-65 Where the order is revoked, has lapsed owing to an act or omission of the applicant or it is later
found in the main proceedings that the defendant is not liable for infringement, the Court may
order, at the defendant’s request, that the applicant provide appropriate compensation to the
defendant for any injury caused by the measures. 89 The Court may assess the appropriate
compensation due to the defendant. 90
Appeal
18-66 The order for a saisie must indicate that an appeal can be lodged by the defendant. There is no
requirement to seek leave to appeal; the rationale being that a saisie is a privileged class of
order touching on the basic interests of the parties. Any appeal must be lodged within 15 days
of service of the order granting the saisie 91 and thereafter there is a tight timetable leading to a
quick decision of the Court of Appeal. The appeal will not prevent the continuation of the main
proceedings, but the Court of First Instance cannot give a decision in the main proceedings
before the decision of the Court of Appeal has been given. 92 If necessary, the appellant can
apply to expedite the appeal. 93
Sanctions
18-67 Unless the Court is satisfied that there are very good reasons for a party failing to comply with
an order of the Court, a party may find that substantive issues are decided in the opponent’s
favour. This drawing of inferences seems a practical approach for a court system which has
limited powers of enforcement. 94 Alternatively, and by analogy to r.190(4) RoP, the Court may
specify that sanctions, such as periodic penalty payments, are imposed unless the evidence is
produced according to the order.
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r.198(1) RoP.
r.9(4) RoP.
r.198(2) RoP. This rule is worded in identical terms to art.7(4) Enforcement Directive.
See chapter 19 (Enforcement) paragraphs 19-68 to 19-71.
rr.196(7), 220(1)(c) and 224(1)(b) RoP.
art.74(3) UPCA.
r.225(e) RoP.
See chapter 19 (Enforcement).
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 358
