A guide to the UPC and the UP - Flipbook - Page 438
that is orders made under arts 49(5), 59, 60, 61, 62 or 67 UPCA. Neither is leave required to
appeal decisions of the judge-rapporteur allowing a preliminary objection 48 and orders
of the panel to dismiss manifestly inadmissible claims. 49
Other Procedural Orders
21-33 Procedural orders other than those referred to in rr.220(1)(c) 50 and 97(5) 51 RoP may
be appealed with leave of the Court. 52 Examples of such orders include orders of the
judge- rapporteur rejecting a preliminary objection, orders for security for costs, and orders
excluding information from being accessible to the public. 53 Both the Court of First Instance
and the Court of Appeal may grant leave to appeal but the RoP are entirely silent on how
the discretion of the Court should be applied when considering such an application.
21-34 If the Court of First Instance grants leave to appeal within 15 days of the order being made
by the panel, the same procedure is followed as for the appeal of an order in the privileged
class referred to in r.220(1)(c) RoP. The prescribed fee must be paid. 54
21-35 In the event that the Court of First Instance does not grant leave to appeal within 15 days
of its order, the appellant may make a request for a discretionary review to the Court of
Appeal within 15 calendar days from the end of that period. 55 The request must set out the
reasons why the appeal should be heard and, where necessary, the facts, evidence and
argument relied upon. 56 A fee of €350 must be paid; 57 the request for review will not be
deemed to be lodged until the fee has been paid. 58 The request for a discretionary review of
the first instance decision is then assigned to the standing judge of the Court of Appeal. 59
The standing judge may deny the request without providing reasons. If the request is
allowed after hearing the other party, the standing judge must order what further steps
the parties must take and specify the time limits; the steps and time limits are likely to be
similar to the those taken when leave is granted by the Court of First Instance, but may be
truncated given that the standing judge will already have been provided with the reasons
for the appeal and supporting information from the appellant and heard the defendant.
The review of the first instance decision is then assigned to a panel of the Court of Appeal.
Interestingly, r.220(4) RoP provides that the Court of Appeal may consult the presiding
judge or the judge-rapporteur of the panel of the Court of First Instance which has refused
the leave order. In Germany, as in Belgium, such a relationship between the appeal court
and the court of first instance does not exist and an appeals court will generally make an
independent decision based on the case before it.
21-36 The procedure and timelines for appealing an order, other than a costs order,
are illustrated in figure 21-1 below.
48
49
50
51
52
53
54
55
56
57
58
59
r.21(1) RoP.
r.363(2) RoP.
arts 49(5), 59, 60, 61, 62 or 67 UPCA.
Order following an application to annual a decision of the EPO to reject a request for unitary effect.
art.73(2)(b) UPCA and r.220(2) RoP.
rr.21(1), second sentence, 158(3) and 262(1), second sentence RoP.
r370 RoP. The fee prescribed under the Table of Court Fees of 8 July 2023 is €350.
rr.220(2) and (3) RoP.
rr.220(3), third sentence and 221(2) RoP.
rr.370(1) and (5)(d) RoP. Note that r.220(3) refers to r.333(3) applying mutatis mutandis; this rule relates to reviews
of case management orders for which the fee is €300; but it is assumed that the €350 fee is correct in relation to
seeking leave to appeal procedural orders because of the specific mention of r.220(3) in the fee schedule for the
Court of Appeal, table IV, part 6 RoP.
rr.220(3), second sentence, 333(3) and 15(2) RoP.
r.220(4), first sentence RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 428
