1. Key takeaways
Background of the case
The Applicants request a security for costs under R.158 RoP by arguing that Respondent has its registered office in the People's Republic of China so that it is alleged that it was not sufficiently certain that a cost decision would be accepted and could be enforced in China.
The Respondent countered that Applicants did not provide any substantive arguments for their speculative allegation that "the enforcement of a cost decision against the Claimant in China appears to be nearly impossible or at least highly difficult". The mere fact that Respondent have its registered office in a non-EU/non-EEA country cannot be relevant for the decision on an order for security of costs so that this would be a form of a priori discrimination, based precisely on the nationality of Respondent's registered office/domicile, which is not provided for in any source of law.
Failure to comply with the obligations under the Hague Service Convention could lead to an order for reimbursement of costs by the UPC being unenforceable in this country or just in an unduly burdensome way
The Court considered that the mere fact of residence in China stated by the Applicant is a form of a priori discrimination.
The Court then pointed out that it is decisive for an order for security whether the financial position of the claimant gives rise to a legitimate and real concern that a possible order for costs may not be recoverable and/or the likelihood that a possible order for costs by the UPC may not, or in an unduly burdensome way, be enforceable (cf. UPC_CoA_217/2024).
In the present case, the Court stated that European courts are facing significant difficulties in serving statements of claim and other documents in China although the People's Republic of China has ratified the Hague Service Convention. For example, the Higher Regional Court Munich, GRUR-RR 2020, 511, as well as the LD Mannheim, UPC_CFI_332/2024, had the experience that requests for service from the Chinese authority in many cases are either not forwarded at all or objected to and returned. Also, the service of applications for provisional measures by e-mail was unsuccessful in UPC_CFI_508/2023 and UPC_CFI_509/2023 for more than six months without any apparent reason.
Therefore, the amount of the security was to be set at € 200,000 according to the costs reimbursable in the event of a value in dispute up to 2 million €.
2. Division
Local Division Munich, Panel 1
3. UPC number
UPC_CFI_425/2025
4. Type of proceedings
Infringement proceedings
5. Parties
Applicants (Defendants in the infringement proceedings):
- Chint New Energy Technology Co., Ltd.
- Astronergy Europe GmbH
- Astronergy Europe GmbH
- Astronergy Solarmodule GmbH
- Astronergy Solar Netherlands B.V.
- Chint Solar Netherlands B.V.
Respondent (Claimant in the infringement proceedings): JingAo Solar Co., Ltd.
6. Patent(s)
EP 2 787 541
7. Body of legislation / Rules
Rule 158.1 RoP, Art. 69 (4) UPCA
2025-03-19-LD-Munich_UPC_CFI_425-2024 Download
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