A guide to the UPC and the UP - Flipbook - Page 434
21-13 The Court of Appeal will also hear appeals from decisions of the Court of First Instance on
applications to annul or alter a decision of the EPO 20 relating to various administrative matters
set out in art.9 Unitary Patent Regulation. 21 As with all appeals from decisions of the Court
of First Instance (as opposed to orders of the Court of First Instance) no leave to appeal is
required as r.220(1)(a) RoP applies. It will also hear applications to annul decisions of the EPO
to reject a request for unitary effect, which follow the special procedure set out in the RoP
which does not involve the Court of First Instance. 22
Orders
21-14 Appeals against orders referred to in arts 49(5), 59, 60, 61, 62 or 67 UPCA may also be
made without the need for leave to appeal. 23 Respectively, these articles relate to:
–
Decisions relating to the use of language in the proceedings at first instance;
–
Orders to produce evidence;
–
Orders to preserve evidence (saisies) and to inspect premises;
–
Freezing orders;
–
Order for provisional and protective measures; and
–
Orders regarding the communication of information.
21-15 As with substantive decisions, there is no need to seek leave to appeal these types
of orders, the rationale being that they are a privileged class touching upon the basic
interests of the parties. 24
21-16 Appeals may in principle also be filed against procedural orders 25 that are not privileged in
this way, for example, orders of the judge-rapporteur rejecting a preliminary objection,
orders for security for costs, and orders excluding information from being accessible to
the public. 26 It was considered that it was in the interests of a speedy and efficient procedure
for most procedural orders, other than the privileged few, to be dealt with together with
the appeal against the final decision. However, it was recognised that some of these orders,
in certain circumstances, touched upon the basic interests of the parties and a consistent
application and interpretation of the rules governing such orders was desirable.
Therefore, such orders may be appealed where either the Court of First Instance or
the Court of Appeal grants leave to appeal.
21-17 The RoP allows for the appeal of orders, unlike for example in Germany or Belgium where
decisions ordering a party to produce specific evidence are generally not appealable. 27
Providing that so many orders are appealable, albeit many only with leave, allows the Court
of Appeal to ensure a uniform application and interpretation of as many procedural steps
and rules as possible across the various divisions.
20
21
22
23
24
25
26
27
r.88 RoP.
See rr 85-96 RoP.
r.97 RoP.
art.73(2) UPCA and r.220(1)(c) RoP.
“Table with explanatory notes to the changes made by the Legal Group of the Preparatory Committee in the 17th draft of the
Rules of Procedure” 31 October 2014, p.15.
art.73(2)(b) UPCA and r.220(2) RoP.
rr.21(1), second sentence, 158(3) and 262(1), second sentence RoP.
s.355(2) German Code of Civil Procedure and art.880 Belgian Code of Civil Procedure.
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A Guide to the UPC and the UP 424
