A guide to the UPC and the UP - Flipbook - Page 451
21-78 Under r.242(2)(a) RoP, the Court of Appeal may exercise any power that is within the
competence of the Court of First Instance, and art.77 UPCA provides that the decisions
and orders of the Court of Appeal shall be reasoned and given in writing in the language of
the proceedings. Furthermore, the decision must comply with the formal requirements set out
in r.350 RoP in relation to, for example, naming the judges and setting out the claim, the facts
and the reasons for the decision. Decisions must also be signed by all of the judges deciding
the case, as well as by the Registrar, 158 and must be read in open court. 159
21-79 Where the appeal relates to a decision by the EPO to refuse a request for unitary effect
for a patent, the Registry must notify the EPO as soon as is practicable of any decision
by the Court of Appeal. 160
21-80 Where the Court of Appeal has made a reference to the CJEU for a ruling relating to
a question raised before the Court of Appeal, as with the Court of First Instance,
the Court will not give judgment until the CJEU has given a ruling on the question. 161
Procedure for Decisions by the Court of Appeal
21-81 The standard procedure which the Court of Appeal must follow when making decisions is set
out in art.78(1) UPCA. This article provides for decisions and orders of the Court to be made on
the basis of the opinion of the majority of the judicial panel and requires that, in the case of
equal votes, the presiding judge of the panel has the casting vote. Art.78(2) UPCA states that,
in exceptional circumstances, any judge on the panel may express a dissenting opinion
separately from the decision of the Court. There is no indication in the RoP as to what these
exceptional circumstances may be. However, what this article does suggest is that the Court of
Appeal will provide a single decision from the whole panel. Any dissenting opinion is attached to
the Court of Appeal decision. 162
21-82 All decisions and orders must comply with the requirements set out in rr.350 and 351 RoP
and provide, in particular, a summary of the facts and the grounds for the decision.
Basis on which Decisions are Made
21-83 When the Court of Appeal comes to making a decision, art.76 UPCA applies as it does
to decisions of the Court of First Instance. Therefore, the decision:
–
Must be in line with the submissions made by the parties and limited to an award of
no more than has been requested by the parties (principle of “ne ultra petita”);
–
May only be based on material that has been properly introduced into the proceedings
and on which the parties have had an opportunity to present their comments; and
–
Must freely and independently evaluate evidence submitted to the Court.
21-84 The fact that there is no differentiation between the Court of Appeal and the Court of
First Instance may be taken to suggest that the Court of Appeal can exercise a full judicial
review of both the facts and the law. The Court of Appeal will have regard to requests, facts,
evidence and arguments in the statement and grounds of appeal, the response and any reply
to a cross-appeal, and it will consult the file of proceedings before the Court of First Instance. 163
158
159
160
161
162
163
art.35(5) UPCA Statute.
art.35(5) UPCA Statute.
r.97(6) RoP.
r.266(5) RoP.
r.350(3) RoP.
r.222 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 441
