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Where postal service attempts are returned as “Unclaimed”, the passive or disinterested conduct of a defendant cannot obstruct the continuation of proceedings. The ten-day deemed-service rule under R. 271.6(b) RoP applies irrespective of actual collection, provided the document to be served has not failed to reach the addressee.
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1. Key takeaways
Deemed service on a non-responsive foreign defendant: a registered letter is deemed served ten days after posting, regardless of whether it is collected (R. 271.6(b), R. 276.1 RoP).
Where postal service attempts are returned as “Unclaimed”, the passive or disinterested conduct of a defendant cannot obstruct the continuation of proceedings. The ten-day deemed-service rule under R. 271.6(b) RoP applies irrespective of actual collection, provided the document to be served has not failed to reach the addressee.
Service rules for originating pleadings (R. 270–275 RoP) apply by analogy to the application for a cost decision under R. 150 et seq. RoP.
Although R. 270.2 RoP limits the originating-pleading service rules to actions listed in Art. 32(1) UPCA – which does not expressly mention cost proceedings – the Court held that the application for a cost decision is, in substance, the originating pleading of the cost proceedings, thereby filling a procedural gap. The requirement to serve the application follows from the combined reading of R. 151.1(a), R. 13.1(d) and R. 156.1 RoP, which require indicating the defendant’s service addresses and granting the unsuccessful party an opportunity to comment on the costs requested.
Recoverable costs must be reasonable and proportionate; the Scale of Ceilings sets a maximum, not an automatic entitlement (Art. 69(1) UPCA, R. 152 RoP).
Reasonableness excludes reimbursement for unusually high fees or unnecessary services; a cost is necessary when closely correlated to pursuing the claims as required by the circumstances, assessed ex ante by a diligent and prudent person (CJEU: Koch Media, C-559/20; NovaText, C-531/20; United Video Properties, C-57/15). Proportionality does not require full reimbursement of all reasonable costs but at least a significant and adequate portion, taking into account the value of the dispute, the importance of the case, and the difficulty and complexity of legal and factual issues. In low-complexity default judgment cases, representation costs may be set below the applicable ceiling based on an independent judicial proportionality assessment (R. 152 RoP). The Court identified several factors indicating low complexity: the case concluded by default without any defense on infringement or validity, no evidentiary proceedings were conducted and only one patent was asserted. The ceiling was therefore not reached.
2. Division
Local Division Milan
3. UPC number
UPC_CFI_2046/2025
4. Type of proceedings
Application for a cost decision (R. 150 et seq. RoP)
5. Parties
Claimants: Morello Forni Italia S.R.L. and Morello Forni S.A.S. di Morello Marco & C. Defendants: Gastroteam Abbe AB; Salvatore Marciuliano, sole proprietor of Marciuliano Attrezzature
6. Patent(s)
EP 3 691 454
7. Jurisdictions
UPC
8. Body of legislation / Rules
R. 13.1(d) RoP, R. 150 RoP, R. 151 RoP, R. 152 RoP, R. 153 RoP, R. 155 RoP, R. 156.1 RoP, R. 157 RoP, R. 180.1 RoP, R. 221.1 RoP, R. 270 RoP, R. 271.4(a) RoP, R. 271.6(b) RoP, R. 276.1 RoP, Art. 32(1) UPCA, Art. 69(1) UPCA, Art. 14 Directive 2004/48/EC, Art. 18 Regulation (EU) No. 1784/2020.
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.
