A guide to the UPC and the UP - Flipbook - Page 397
France
A19-06 Under French law, when issuing injunctive relief, by way of a decision on the merits or a
preliminary order, the judge is always empowered to include in his decision a daily fine to
ensure that the defendant will comply with the injunction. 103 This penalty is considered to be
“provisional” (and not final) except when the judge specifies that it is a “definitive” penalty. 104
In the event the defendant does not voluntarily comply with the injunction, the claimant
can revert either to the “Juge de l’Execution” or to the judge who imposed the penalty
(depending on the terms of the initial decision granting the injunction) in order to have the
amount to be paid by the infringer for lack of compliance with the Court’s decision
calculated. 105 In the course of that specific proceeding, the judge has a wide power of
appreciation and the final amount to be set will depend on numerous criteria, such as the
duration of the lack of enforcement and whether the defendant acted in good or bad faith. 106
The sum is to be paid to the other party (in addition to the strict damages for infringement)
rather than to the Court.
A19-07 With regards to the enforcement of a decision including monetary relief (such as a decision
ordering the payment of damages for infringement or a decision setting the final penalty
amount to be paid for lack of compliance with an injunction) the claimant may require a bailiff
to take usual enforcement measures, including seizure of bank accounts, debts (in the hands of
a third party), wages, personal property and real property. This process is governed by the
common law of enforcement 107 which provides that the enforcement measure which is carried
out should be proportionate and necessary. 108
Germany
A19-08 In Germany, the following civil coercive measures can be issued by the court:
– For actions that depend exclusively on the will of the debtor/defendant, the court may
impose a penalty payment or term of imprisonment. 109 The individual payment is capped at
€25,000 per violation (calculated in relation to the economic effect of the violation) and the
period of imprisonment may not exceed six months; 110 and
– For orders to cease and desist from activities, or those that oblige the debtor/defendant to
tolerate actions to be taken, the court shall sentence the party in violation of the order to a
fine or imprisonment of up to six months for each count of the violation. 111 The fine is
capped at €250,000 per violation and the period of imprisonment may not be longer than a
total of two years.
A19-09 Even though the court has the choice between these coercive measures it shall not order
imprisonment as long as a penalty payment is deemed to be sufficient for enforcement. In both
cases, the sentence must be preceded by a warning issued by the court unless the decision to
be enforced already provides that violations will incur such measures. There are no specific
criminal penalties for failure to comply with a court order; penalty payment and imprisonment
represent measures directed at making the debtor/defendant comply with the court’s decision.
However, with regard to violations against a cease and desist order they are considered to have
a punitive element as well. Penalty payments are made to the benefit of the public treasury.
If the defendant fails to pay the penalty it can be enforced according to the general provisions
103
104
105
106
107
108
109
110
111
art.L131-1 French Code of Civil Enforcement Procedures.
art.L131-2 French Code of Civil Enforcement Procedures.
art.L131-3 French Code of Civil Enforcement Procedures.
art.L131-4 French Code of Civil Enforcement Procedures.
art.L.111.1 et seq. French Code of Civil Enforcement Procedures.
art.L.111-7 French Code of Civil Enforcement Procedures.
s.888 German Code of Civil Procedure. Note that the penalty payment goes to the state, not the patentee.
ss.888 and 802 j German Code of Civil Procedure.
s.890 German Code of Civil Procedure.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 387
