A guide to the UPC and the UP - Flipbook - Page 452
References to the CJEU
21-85 The Court of First Instance and the Court of Appeal are considered as courts common to the
Contracting Member States and as part of their judicial system. 164 Accordingly, the Court is
bound to apply art.267(3) TFEU and, where it considers it necessary before it can give judgment,
refer questions of EU law to the CJEU for preliminary ruling. In the case of the Court of Appeal,
such referral to the CJEU is mandatory pursuant to art.267(3) TFEU, because there is no judicial
remedy under national law or the unified patent package against its (the Court of Appeal’s)
decisions. The parties can also request a referral, as art.267(3) TFEU is a manifestation of the
right to one’s lawful judge as stipulated in art.6(1) Convention for the Protection of Human
Rights and Fundamental Freedoms. R.266 RoP explicitly repeats the legal requirements and
consequences of art.267 TFEU.
21-86 During the referral for preliminary ruling of the CJEU, the proceedings before
the Court of Appeal are stayed pursuant art.38 UPCA Statute. If the Court decides not
to stay the proceedings, it shall not give judgment until the CJEU has provided a ruling on
the question. 165 The Court may, in urgent matters, ask the CJEU to expedite its procedure. 166
Decisions by Default
21-87 The rules relating to decisions by default at first instance 167 apply equally to appeals. 168
A decision by default may be issued in particular where:
–
A respondent who has been duly served with a statement of appeal and a statement
of grounds of appeal fails to lodge a statement of response;
–
A party fails to file a reply to a statement of cross-appeal;
–
A party fails to file a translation ordered by the judge-rapporteur within
the time specified; 169 or
–
The appellant fails to correct the deficiencies in the statement of appeal or to pay
the fee for lodging the appeal. 170
21-88 For those decisions which are unopposed, the Court of Appeal may consider the merits
of the appeal. 171 Such an appeal is not one that would normally be considered to be
a decision by default, as the Court still considers the merits of the case. The only difference
to the normal appeal process is that the respondent is unable to add anything over and
above the case made at first instance. The standard which the Court shall apply when
making its decision is not set out, with the words “and, if the appeal is well founded,
shall allow the appeal” having been removed between the 17th and 18th draft of the RoP.
However, the Court of Appeal’s decision should be “reasoned”. 172
164
165
166
167
168
169
170
171
172
art.21 UPCA.
r.266(5) RoP.
r.266(3) RoP.
rr.355 and 356 RoP. See chapter 11 (Overview of Procedure and General Procedural Provisions) paragraphs 11-144 to
11-155.
r.357 RoP.
r.232(1) RoP.
r.229(4) RoP.
r.357(2) RoP.
r.235(3) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 442
