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 Case Law
Rule 220: Appealable decisions

Court of Appeal - Luxembourg (LU), Order dated 26/04/2024, AIM Sport Vision AG/ Supponor Italia SRL, Supponor SASU, Supponor España SL, Supponor Oy, Supponor Limited (Registry number: ORD_23089/2024 ORD_23089/2024)
Example of decision on time period for lodging a Statement of appeal: “18. However, an excusable error can, in exceptional circumstances, justify a derogation from that rule. That is in particular so when it was the conduct of the court, either alone or to a decisive extent, that gave rise to confusion by a party, who acted in good faith and displayed all the diligence required of a normally well-informed person. This follows from the principle of the protection of legitimate expectations”
“21. The Court of Appeal is of the opinion that under the circumstances of this case, it was not obvious that the decision of the Court of Instance was wrong, in not referring to it as an order in relation to ACT_551054/2023 and in providing incomplete information on appeal. The wording used in R.220.1(c) RoP (“orders referred to in … )” in combination with the wording of Art. 62
UPCA (“The Court may, by way of order, grant injunctions’…”, is ambiguous and – failing any case law clarifying the wording of this provision at that time, as is now done by the Court of Appeal in this order – could have led AIM to believe that the time period for filing the Statement of appeal in provisional measures proceedings where the request was denied was indeed two months, as indicated by the Court of First Instance. It is the Court’s opinion that the principle of the protection of legitimate expectations under these exceptional circumstances require that AIM is allowed to rely on the information provided by the Court of First Instance that the applicable time period for lodging the Statement of appeal was two months in ACT_551054/2023 as well. As such, this time period must be considered to be applicable to the Statement of appeal in ACT_551054/2023. Thus, it must be held to have been lodged in time and the appeal is therefore admissible.”

Court of Appeal - Luxembourg (LU), Order dated 11/04/2024, Neo Wireless / Toyota Motor Europe ORD_19643/2024
Example of decision on the time period for filing a statement of appeal: “It follows that if leave is granted in the impugned order itself, the Statement of appeal must be lodged within 15 days of service of that order containing the decision to grant leave. If the decision to grant leave to appeal is contained in a separate order on a request to that effect (which separate order must be issued within 15 days of the impugned order, cf R.220.3 RoP), the Statement of appeal has to be lodged within 15 days from the date of service of this separate order containing the decision to grant leave to appeal.”

Court of Appeal - Luxembourg (LU), Order dated 21/03/2024, Netgear Inc., Netgear International Limited, NETGEAR Deutschland GmbH/ Huawei Technologies Co. Ltd (Case number : APL_595643/2023 ; ORD_598257/2023)
Example of decision of rectification of the name of a party and order for costs in the decision of the Court of Appeal: “33. When deciding whether the R.20.2 RoP notification is based on a case management decision within the meaning of R.333.1 RoP, the Court of Appeal considers the following: From the system as laid down in the Rules of Procedure, in particular R.331 RoP in conjunction with R.102 and R.333 RoP, on the basis of which decisions and orders by the judge-rapporteur under the mandate of the panel can always be reviewed, either at the initiative of the panel itself, or at the (reasoned) request of a party, it follows that there is a broad scope for review of actions of the judge-rapporteur. This calls for a broad, rather than a limited interpretation of ‘case management decision or order’ as meant in R.333.1 RoP.”
“35. The notion of ‘case management decision or order’ being a broad concept that calls for a broad interpretation, R.333.1 RoP cannot be considered to exclude those mentioned in R.334 RoP and be limited to decisions and orders within the meaning of R.350 and R.351 RoP, as the respondent argued. Clearly, the general wording used in R.102 and R.333 RoP (see par. 25 above) indicates that all case management orders and decisions, notably including those mentioned in R.334 RoP, can be subject of review under R.333 RoP. The fact that the judge-rapporteur has room for discretion when dealing with case management, does not exclude the resulting decisions from review under R.333 RoP. It is for the panel, when exercising its review under R.333 RoP, to take into account efficiency, proportionality and due regard for the discretion granted to the judge-rapporteur.”

Court of Appeal - Luxembourg (LU), Order dated 14/03/2024, Abbott Laboratories, Abbott Diabetes Care Inc., Abbott France, Abbott (S.V./N.V.), Abbott B.V., Abbott S.r.l., Abbott Scandinavia Aktiebolag, Abbott GmbH, Abbott Diagnostics GmbH, Abbott Logistics B.V. / DexCom, Inc (ORD_16789/2024)
Example of decision on an order without leave is declared inadmissible: “Pursuant to Rule 220.2 RoP, orders other than those referred to in Rules 220.1 and 97.5 RoP may be appealed only if the Court of First instance has granted leave to appeal.”
“Without leave to appeal the appeal filed under Rule 220.2 RoP was inadmissible from the outset and, as such, could not be withdrawn.”

Court of Appeal – Luxembourg (LU), Order dated 15/02/2024, Meril GmbH; Meril Life Sciences Pvt Ltd. / Edwards Lifesciences Corporation (Case number UPC_CoA_2/2024 ORD_6625/2024)
Example of decision on the amount of the fee applicable for an appeal against an order ending proceedings relating to an application for provisional measures: “The schedule of fees does not provide for a specific fee for an appeal lodged, under rule 220.1(a) of the Rules of Procedure, against an order which, in the context of the rejection of an application for provisional measures under rule 360 of the Rules of Procedure, determines which party is to bear the costs of the proceedings. In the absence of a specific fee, the fee must be paid for the case which, according to the economics of the fee schedule, is most comparable to the case in question. The fee schedule determines the appeal fee in accordance with rule 220.1(a) of the Rules of Procedure, based on the nature of the action or claim decided by the Court of First Instance. Under this system, the rule providing for a fee of 11,000 euros for an appeal under rule 220.1(c) of the Rules of Procedure concerning an application for provisional measures under Article 62 EPC is to be applied mutatis mutandis to the present appeal procedure. Indeed, the present appeal procedure also concerns an appeal against an order terminating proceedings relating to a request for provisional measures pursuant to article 62 of the EPC.”

Court of Appeal – Luxembourg (LU), Order dated 08/02/2024, Ocado Innovation Limited v. Respondent (Case number UPC_CoA_404/2023 ORD /)
Example of decision on the representation of a member of the public requesting access to the register:“From this follows that ‘A party‘ in R.8.1 RoP is a wider concept than ‘Parties‘ in the heading of Article 47 UPCA and covers all applicants of any application or action under the UPCA and RoP. The Court of Appeal notes that ‘a party‘ in R.220.1 has a similar wider meaning; it also applies to a third party affected by an order or decision such as a third party under R.190 and a member of the public under R.262.1(b). Consequently, all applicants of any application or action under the UPCA and RoP are required to be represented, except if the rules of procedure waive the requirement of representation. An applicant under Rule 262.1(b) is not exempted from the requirement of R.8.1 RoP and is therefore required to be represented.”
“8. Members of the public requesting access to the register pursuant to R.262 RoP are consequently in an adversarial situation where representation is called for.
9. It follows from the above that the Respondent should have been represented before the Court of First Instance and must also be represented before the Court of Appeal. The Statement of response that was lodged by the Respondent shall be disregarded, as it was not lodged by an authorised representative pursuant to Article 48 UPCA.”