A guide to the UPC and the UP - Flipbook - Page 432
Introduction
21-01 Appeals from the decisions and orders of the Court of First Instance may be made to the
Court of Appeal. There is only one Court of Appeal, based in Luxembourg, and only one level
of appeal, although questions can be referred by both the Court of First Instance and the
Court of Appeal to the CJEU on questions of EU law.
21-02 The Court of Appeal fulfils a very important role. Issues such as when to stay proceedings
and whether to permit bifurcation, and indeed many other matters, may initially be decided
differently in different divisions depending on the background of the judges. Despite the lack of
any explicit mention of the common law principle of precedent or stare decisis, 1 the preamble
to the RoP states that the Court, comprising both Court of First Instance and Court of Appeal,
must endeavour to ensure consistent application and interpretation of the RoP. Therefore,
through the decisions of the Court of Appeal, uniformity and consistency of approach will
be imposed on the Courts.
21-03 Appeals can be made to the Court of Appeal on both substantive and procedural matters.
Furthermore, the Court of Appeal will be able to hear appeals against separate decisions on
infringement and validity, therefore bringing bifurcated actions together in much the same
way as is done before the Bundesgerichtshof, the Federal Court of Justice of Germany.
21-04 Appeals will not have suspensive effect unless the Court of Appeal makes such an order.
Therefore, appeals against decisions in relation to certain procedural matters, for example,
provisional measures and production or preservation of evidence, which are deemed to
touch upon the basic interests of the parties, are available as of right. Appeals against
decisions on other procedural matters, require leave either from the Court of First
Instance or failing that the Court of Appeal.
21-05 The hearing before the Court of Appeal will not be limited to points of law but may be
based on both points of law and matters of fact. However, no new evidence may be
adduced unless the party submitting the new evidence could not reasonably have been
expected to do so during the proceedings before the Court of First Instance. 2 It is expected
that the oral hearings before the Court of Appeal will be short and the decisions will be
handed down relatively quickly.
21-06 This chapter describes the procedures for appeals and requests for a rehearing before
the Court of Appeal. They are governed by Part 4 RoP, specifically rr.220 to 243 (appeals)
and rr.245 to 255 (requests for a rehearing).
Judges of the Court of Appeal
21-07 The Court of Appeal will initially operate with two panels, 3 each panel comprising
a multi- national composition of five judges. 4 The judges are assigned to the panels by
the elected President of the Court of Appeal 5 from the pool of judges. 6 The panels will
consist of three legally qualified judges who are nationals of different Contracting Member
States and two technically qualified judges with qualifications and experience in the field
of technology concerned. 7 One of the legally qualified judges will chair the panel 8 and appoint
1
2
3
4
5
6
7
8
r.243(2) RoP is the only place where there is any mention of the binding nature of decisions of the Court of Appeal.
It states: “Where an action is referred back to the Court of First Instance, the Court shall be bound by the decision
of the Court of Appeal and its ratio decidendi”.
art.73(4) UPCA.
r.238A(2) RoP.
art.9(1) UPCA.
rr.345(1) and (8) RoP. For role of judges and general description of court structure see chapter 5 (The Structure of the Court).
art.18 UPCA and art.20 UPCA Statute.
art.9(1) UPCA.
art.9(3) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 422
