The UPC Court of Appeal (CoA) has given guidance on what areas of law and practice will (and will not) be referred for interpretation to the Court of Justice of the European Union (CJEU).
The CoA denied appellants expert e-Commerce GmbH and expert klein GmbH (together, expert) leave to appeal the refusal to allow their application for a costs decision which application had been rejected by the standing judge due to it being time barred under the UPC Rules of Procedure (RoP) Rule 151. The CoA further declined to refer the appellants' questions on the interpretation of the RoP and UPC Agreement (UPCA) in related to this refusal, to the CJEU, finding that the CJEU did not have jurisdiction to consider the RoP or UPCA in this context and that there was no reasonable doubt regarding the interpretation of EU law or procedural fairness (expert e-Commerce GmbH and expert klein GmbH v. Seoul Viosys Co., Ltd.) and thus no jurisdiction for CJEU involvement.
The CoA offered guidance on when a question will be referred to the CJEU and when it will not:
- There may be a need to interpret EU law in the context of the application of the UPCA or the RoP and where the UPC applies EU law.
- The UPC must interpret its own substantive and procedural law in a manner that is consistent with EU law. In rare case where such interpretation (in line with EU law) is impossible the UPC must disapply of its own motion any rule or practice which is contrary to a provision of EU law with direct effect. This latter obligation can also open up questions on interpretation of EU law.
- However, the UPC cannot ask the CJEU to interpret the UPCA. The UPCA is an international agreement and forms part of international law. Similarly the UPC cannot ask the CJEU to interpret the RoP.
- There was therefore no need for a preliminary ruling from the CJEU where established case-law of the CJEU already resolves the point of law in questions. The same applies where there is no scope of any reasonable doubt about the application of the principles.
The CoA confirmed that the one-month time limit for an application for a costs decision was from the date of service of the decision on the merits.
Background
expert had sought to recoup €111,000 in costs following the decision of Düsseldorf Local Division to declare Seoul Viosys' patent (EP3223320 for an LED device) invalid in October 2024 in a case where Seoul Viosys had claimed that expert were infringing the patent. As the costs application had missed the one-month deadline under the RoP, the Dusseldorf LD ruled that the application was now time-barred.
expert then appealed the decision, questioning whether the time limits had been properly applied and requesting a referral to the CJEU for a preliminary ruling to interpret this. expert argued that there were RoP that allowed time limits to be extended retroactively.
The CoA refused expert's appeal – confirming as it had done in Hanshow v VusionGroup on 6 June 2025, that failure to meet the time limit for an application for a costs decision (in RoP 151.1) can only be remedied through re-establishment of rights pursuant to RoP 320 - and gave guidance on when questions will be referred to the CJEU by the UPC.
Guidance on referrals to CJEU by the UPC
The CoA reiterated that, the UPC is subject to the same obligations as National courts under EU law. It must refer interpretation of EU law to the CJEU. However, the court I relieved of that obligation if it is established that the question raised is irrelevant or the EU law provision in question has already been interpreted by the CJEU or the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. It is for the referring court to assess whether a reference is necessary, not for a party to content that the dispute gives rise to a question that should be referred. "Not only is it for the referring court to assess whether an interpretation of EU law is necessary to enable it to resolve the dispute before it, having regard to the procedural mechanism laid down in Article 267 TFEU, but it is also for that court to decide the manner in which those questions are to be worded" commented the CoA.
The CoA then continued with helpful summary of the UPC's obligations in relation to referrals and approach to the interpretation of EU law
- The UPC is a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the EU Contracting Member States
- The UPC will apply Union law in its entirety and will respect its primacy (as required by Art. 20 UPCA). The primacy of Union law includes the Treaty on the EU (TEU), the Treaty on the Functioning of the European Union (TFEU), the Charter of Fundamental Rights of the European Union (Charter), the general principles of Union law as developed by the CJEU, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a reasonable time by an independent and impartial tribunal, the case law of the CJEU and secondary Union law (see the preamble of the UPCA). Pursuant to Art. 6(3) TEU, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States. These all constitute general principles of EU law.
- A need for interpretation of EU law in the context of application of the UPCA and/or the RoP can arise when, for instance, a provision of the UPCA or the RoP implements or relates to a directive, a regulation, or to an international agreement such as the Lugano Convention where the EU is a contracting party, whether the UPCA and/or the RoP make specific reference thereto or not. The EU legislation referred to in the UPCA and the RoP is by no means exhaustive.
- The UPC must interpret its own substantive and procedural law in a manner that is consistent with EU law, and in the rare cases when such interpretation is impossible, ultimately disapply, of its own motion, any rule or practice, which is contrary to a provision of EU law with direct effect. This obligation can open up questions on interpretation of EU law.
- By contrast, the UPC cannot ask the CJEU to interpret the UPCA. The UPCA is not a regulation, a directive, a decision, a recommendation or an opinion. It is not an act of the institutions, bodies, offices or agencies of the Union. As is clear from a reading of the case-law of the CJEU, the UPCA is an international agreement. It forms part of international law (see judgment of 5 May 2015, Spain v Parliament and Council, C-146/13). The Union is not a party to the UPCA; only the Contracting Member States are. The CoA commented that "Indeed, the CJEU reminded in Spain vs Parliament and Council (reference above) that, in an action brought under Art. 263 TFEU as was the case there, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by Member States (para 101)".
Thus, held the CoA, the referral of questions involving RoP 151 and Art 69 UPCA could not be made. expert had argued further that the approach taken by the standing judge constituted a violation of the Enforcement Directive (by preventing them from making a costs application, even if out of time) which is implemented in the UPC's decision making process by Art 69 UPCA. However, it was clear from what expert had brought forward that it did not take issue with the content of Art. 69 UPCA, which implements Art. 14 of the Enforcement Directive, as such, but with the one-month time limit in 151 RoP for lodging an application for a cost decision. The facts of the case before the UPC concern the application of this Rule and this was not within the scope of EU law and the CoA did not consider the CJEU had any jurisdiction to give a preliminary ruling where a legal situation did not come with the scope of EU law. The CoA addresses the interpretation of an issue of EU law so obvious as to leave no scope for reasonable doubt at paragraphs 45-48 of its decision.
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