A guide to the UPC and the UP - Flipbook - Page 406
Procedure for Setting the Value-based Fee
20-23 In an infringement action, 43 the claimant indicates the value of the action in the SoC if the sum
of the values of the main remedies claimed i.e., injunction for the future and damages for the
past (but not excluding, where appropriate, other remedies) is over €500,000. 44 The claimant’s
assessment of the value of the action reflects the objective interest pursued by it at the time of
filing the action. 45 The claimant then pays the fixed fee and, based on its assessment of the
value of the action, it may also pay a value-based fee.
20-24 The defendant must then state in its SoD whether it disputes the claimant’s assessment of the
value of the action and the grounds for such a dispute. 46 Following the exchange of pleadings,
the value of the action is determined by the judge-rapporteur by way of an order during the
interim procedure, taking into account any figure which the parties have agreed. 47 The judgerapporteur when deciding the issue 48 will take into account the Guidelines. 49
20-25 The Guidelines state that parties may agree on a valuation and, where they do, the Court
“should in principle” base its valuation on that figure. 50 This means that the Court can disagree
with the parties’ own assessment if it is obviously too low. In Germany, for example, courts have
wide discretion to determine the value of the case and sometimes impose their own, higher
assessment of the value of the case on the parties. When the outcome of a case is uncertain,
parties may be tempted to agree on an artificially low value of the action to limit their costs
exposure. The interests of both parties may then not be aligned with the interests of the Court
in ensuring fair access to justice and providing an independent and self-supporting service to
the parties and to the public. However, the pleadings, including the SoC, will be a matter of
public record which should safeguard against the deliberate understatement of the value
of the action.
20-26 If the judge-rapporteur determines that the dispute has a higher value than that estimated by
the claimant in the SoC, any remaining fees due must be paid within ten days of service of the
order determining the value of the action. If the value of the action is lower, the Court will
reimburse the overpaid fees. 51
20-27 The decision of the judge-rapporteur can, on a reasoned application by a party, be reviewed by
the panel. 52 Thereafter, if one of the parties is still dissatisfied with the value set for the action,
an appeal may be made to the Court of Appeal. 53
Urgent Applications
20-28 If a claim needs to be filed urgently, for example, where an application is made in an urgent ex
parte application for a provisional injunction and payment in advance is not possible, the Court
may set a period for the fixed fee to be paid. If the fixed fee is paid in the required time period,
the SoC will be deemed lodged and effective when it is received by the Registry. 54
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45
46
47
48
49
50
51
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An infringement action is used as the example here but the procedure is the same for other types of actions.
r.13(1)(p) RoP.
r.370(6) RoP.
r.24(i) RoP.
rr.22(1) and 104(i) RoP.
The requirement that it should always be the judge-rapporteur who formally determines the value of the
dispute was introduced in response to a concern that parties could indicate artificially low values for the value
of their dispute in order to try and reduce the level of the value-based fee payable.
r.370(6) RoP.
para.I.3 Guidelines.
r.371(4) RoP.
r.333(1) RoP.
rr.333(5) and 220(2) RoP.
r.371(3) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 396
