A guide to the UPC and the UP - Flipbook - Page 450
Oral Procedure
21-75 The Court of Appeal has its seat, as does the Registry, in Luxembourg. 148 However, the Court of
Appeal can choose to hold one or more particular sittings in a place other than Luxembourg. 149
The RoP explicitly mention this possibility in actions pending before a regional division set up
for two or more Contracting Member States in accordance with art.7(5) UPCA. 150 Following the
basic connecting factors known for the establishment of jurisdiction, i.e. place of residence of
the parties, place of business of the defendant, place of actual and threatened infringement,
the judge-rapporteur or the presiding judge can then designate the suitable place within the
region while paying attention to the financial means of the parties and the facilities available. 151
This possibility is a manifestation of the principle of judicial independence as stipulated
in art.17 UPCA.
21-76 The procedure of the oral hearing before the Court of Appeal almost completely matches the
procedure at first instance. 152 To this effect, r.240 RoP expressly references the rules relating
to first instance proceedings 153 and mandates that they apply mutatis mutandis. These rules
govern, inter alia, the conduct of the oral hearing as well as the absence of parties from the
oral hearing. As notable exceptions, the rule on the duration of the oral hearing, on setting
limits for oral submissions and on oral testimony, 154 and the rule on adjournment where
further evidence is required 155 are not referred to in r.240 RoP. This omission can be explained
by the fact that new subject matter in the appeal proceedings is very much the exception. 156
As a result, the duration of the oral hearing will typically be shorter than the one day
allowed for first instance hearings.
Decisions of the Court of Appeal
Decisions by the Court of Appeal
21-77 The Court of Appeal has three options when making a decision in relation to an
appeal as follows: 157
148
149
150
151
152
153
154
155
156
157
–
Reject the appeal;
–
Set aside the decision or order of the Court of First Instance, either in whole or in part,
where it considers the appeal to be well-founded. Where the Court of Appeal does this,
it will substitute the original decision or order with its own decision or order and will include
an order for costs in relation to both the proceedings (at first instance and on appeal); or
–
In exceptional circumstances, refer the case back to the Court of First Instance for a
decision. R.242(2)(b) RoP states that the Court of Appeal will not normally consider the
failure of the Court of First Instance to decide an issue to be an exceptional circumstance
requiring the case to be referred back, where the issue is one that, on appeal, is necessary
for the Court of Appeal to decide.
art.9(5) UPCA.
r.342(2), first sentence RoP.
r.342(2), second sentence RoP.
r.342(2), second sentence RoP.
See chapter 14 (Oral Procedure).
rr.111, 112, 115, 116 and 117 RoP.
r.113 RoP.
r.114 RoP.
r.222 RoP. See paragraphs 21-19 and 21-20.
art.75(1) UPCA and r.242 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 440
