Case Law
Rule 355: Decision by default (Court of First Instance)

Court of First Instance - Munich (DE) Local Division, Order dated 18/10/2023, myStromer AG v Revolt Zycling AG (Case number UPC_CFI_177/2023, ORD_526778/2023)
Example of decision on the required penalties in case of a breach of a court order: “The fact that the debtor has its registered office in Switzerland and perhaps administers its Instagram account from that country does not lead to a different assessment. Admittedly, under Article 82(3) of the EPC, the enforcement procedure is governed by the law of the contracting Member State in which enforcement takes place. Under this provision, decisions of the Court of First Instance may be enforced under the same conditions as decisions given in the Contracting Member State in which enforcement takes place. However, this provision is supplemented, in the case of enforcement by way of injunction, by Article 82(4) EPC in conjunction with Articles 354 and 355. R. 354.3 and .4 of the Regulation ("without prejudice to this Convention"). Consequently, if the debtor breaches a restraining order issued by the court, periodic penalty payments may be imposed on him on the basis of the EPC and the procedural order, irrespective of the provisions of national enforcement law. Such an infringement exists in the present case - as indicated - since the debtor offered the challenged method of implementation via her Instagram account, inter alia in the Federal Republic of Germany, and thus in breach of the restraining order. In such a case, national enforcement law becomes relevant if a debtor does not pay the periodic penalty payments already imposed on him and these must therefore be enforced (BeckOK PatR/Augenstein, EPGÜ, 29th edition, status as at 15.07.2023, art. 82, para. 17).”