A guide to the UPC and the UP - Flipbook - Page 437
patent are in issue before another division of the Court and no stay has been granted by the
Court of First Instance. 43
21-26 The application for suspensive effect may relate to the decision as a whole or only part
of it. For example, it may relate to only one enforceable form of relief or just a part of the
granted relief. The other parts of the decision would, in most instances, remain enforceable.
Application for Suspensive Effect
21-27 The formal requirements for an application for suspensive effect provide that it shall set out: 44
–
The reasons why the lodging of the appeal shall have suspensive effect; and
–
The facts, evidence and arguments relied on.
21-28 Neither the UPCA nor the RoP contain any details of the reasoning which must be provided
and the basis upon which a decision will be taken. If there is a presumption that appeals will
not have suspensive effect, the Court of Appeal will still have to weigh up the effects of granting
a temporary suspension on the parties, balancing the harm to the successful party of granting
such an application against the harm to the unsuccessful party of not doing so. It is unclear
whether the Court of Appeal will take into consideration the chances of success of the appellant
overturning the decision at first instance when conducting this balancing exercise, but arguably
it should do so – particularly in instances of obvious error.
21-29 In making such an application, therefore, the applicant should set out any irreversible
commercial consequences should the decision or order not be suspended pending an appeal.
The Court of Appeal is unlikely to order that an appeal have suspensive effect where any injury
caused by the enforcement of the decision or order which is later annulled can be compensated
in monetary terms. 45 This would particularly be the case where the Court has made the order
subject to security to be given by the successful party to the unsuccessful party. 46
Procedural Matters
21-30 Rr.223(3) and (4) RoP relate to the time period in which the Court of Appeal must decide an
application for suspensive effect. An application for suspensive effect does not itself have
suspensive effect, therefore the Court of Appeal must give its decision without delay to ensure
that a decision is not incorrectly enforced against the party affected by the appealed decision.
21-31 For cases of extreme urgency, the applicant may apply for an order for suspensive effect,
at any time without any formalities, before the standing judge. 47 The standing judge
can then decide the procedure to be followed on the application, including requiring
a subsequent written application. The standing judge has the same powers as the Court
of Appeal when granting or declining an application for suspensive effect. This enables
the standing judge to take decisions immediately.
Leave to Appeal
No Leave Required
21-32 No leave is required to appeal final decisions of the Court of First Instance, decisions
terminating proceedings as regards one of the parties or orders referred to in r.220(1)(c) RoP,
43
44
45
46
47
r.118(2) RoP.
r.223(2)(a) and (b) RoP.
The affected party is entitled to compensation under rr.354(2) and 125 to 157 RoP.
r.118(8), second sentence RoP.
r.223(4) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 427
