To learn more about this or other key topics around the UPC, please visit the dedicated UPC knowledge hub on our website: https://www.bardehle.com/en/upc-special
In German national proceedings, third-party interveners have a rather comfortable role when it comes to costs. If they support the winning party, they can request reimbursement for their costs from the opposing party. If they support the losing party, they do not have to bear costs of the opposing party. In UPC proceedings, however, this is different. Let's take a closer look.
In order to intervene in UPC proceedings, a third party must file an application to intervene pursuant to Rule 313 of the Rules of Procedure. Once filed, this application to intervene triggers separate sub-proceedings about its admissibility, in which the main parties are given an opportunity to be heard. The Central Division Milan decided in the case of Insulet versus Menarini that the winning party in these sub-proceedings is also considered a “successful party” pursuant to Rule 151. This means that if a main party opposes an application to intervene and the court rejects the application, the opposing main party is entitled to seek compensation for legal costs from the third party. So, even the application to intervene carries a cost risk for the intervener. If, on the other hand, the intervention is granted, the intervener is treated as a party pursuant to Rule 315.4. This arguably gives the intervener broader rights than under German national law, where the intervener for example cannot raise arguments that contradict the arguments of the supported main party. However, this broader status comes with a significant downside: According to the Local Division Vienna, treatment as a party also applies to cost liability. This means that if the intervener supports the losing main party, both the losing main party and the intervener are liable for covering the successful party's costs. This is a fundamental difference from German national procedural law and must be considered when deciding whether to intervene in UPC proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
