A guide to the UPC and the UP - Flipbook - Page 456
Referral to the Full Court of Appeal
Referral to the Full Court
21-105 The conditions for a case to be referred to the full Court are set out in art.21(2) UPCA
Statute and r.238A(1) RoP. They are met where the case is deemed:
“of exceptional importance and, in particular, where the decision in the action may affect
the consistency and unity of the case law of the Court”.
While the language suggests that the second option can be considered to be a specific case
of the first one, the two possible grounds for a referral are in fact distinct. Both have the
same consequences as to the effect of the referral.
21-106 The first option is formulated in rather vague terms. Conceivably, it could apply in cases
with exceptional economic impact 195 or where a substantially new question of law, which is
likely to be relevant in the future, arises before the Court.
21-107 In practice, the second option is likely to be the prevalent one. It should again be noted that
this option also relates to extraordinary cases only. Therefore, referrals to the full Court
should mainly apply in cases where a panel significantly disagrees with prior case law of the
Court of Appeal. In contrast, referrals will probably not be made if the panel wishes to deviate
from prior case law merely of one of the divisions of the Court of First Instance because, firstly,
only the Court of Appeal is intended to review first instance decisions, and secondly, it is
unlikely in this situation, that the consistency and unity of the case law of the Court as a whole
will be affected. Nonetheless, there may be a situation arising where established case law is
applied by a number of divisions at first instance, and where such case law has never been
challenged before the Court of Appeal. If the panel of the Court of Appeal wishes to overturn
such case law, it could be argued that an authoritative decision from the full Court might be
necessary in order for the Court to live up to its aspiration of being a truly unified court.
Referral Procedure
21-108 The referral procedure is set in motion by the presiding judge of the panel seized with
the action. The presiding judge proposes to the panel that the case should be referred to
the full Court. The referral is effected if the panel considers that the conditions set out in
r.238A(1) RoP are met. However, it is not clear whether it is necessary for the panel to
make a unanimous decision to refer the case as r.238A(1) RoP is silent on the point.
Procedure Before the Full Court
21-109 According to r.238A(2) RoP, the full Court of Appeal consists of the President of the Court of
Appeal and five legal and technical judges from each panel of the Court of Appeal. Since the
Court of Appeal will initially consist of two panels, there will be ten legal and technical judges to
join the President in forming the full Court. In the event that further panels are established in
the future, the number of judges in the full Court of Appeal will increase accordingly.
21-110 With the exception of the President, the members of the full Court are selected on
a case- by- case basis by the President and the two judges of the Court of Appeal who
are members of the Presidium.
195
According to German judicature, the mere economic impact of a case does not suffice for the requirement of “fundamental
importance” as per s.132(4) GVG (see German Federal Supreme Court, NJW 1979, 219). However, the wording of r.238A(1) RoP
is broader and might thus encompass economically exceptional cases.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 446
