UPC_CFI_509/2023; UPC_CFI_508/2023 – Air Up v Guagzhou

Expert Commentary

Service of decision by default Background Air up files a PI application against a Chinese company. The service by the registry in accordance with the The Hague Convention takes a year, without success. The Court declares good service pursuant to R. 275.2 RoP. A default judgment is rendered on 9 January 2025. The applicants request to rule that the steps ordered by the Court to bring the service of the request for a PI to the attention of defendant are also sufficient for service of the decision pursuant to R. 275.2 RoP. The Court 1. Effective legal protection is a general principle of law (cf. Court of Justice of the European Union in C-222/84). 2. Good service must always be possible at least in accordance with R. 275.2 RoP. 3. Service of the summons was not possible due to lack of cooperation of the Chinese authorities. In that case, you do not have to try again (R. 274). 4. R. 275.1 RoP, i.e. service by alternative method or at alternative place, is only applicable if such service is possible. That is not the case. 5. Service must always be possible. The Court applies R. 275.2 and notes that an email to Mr. Long of the defendant is good service. Comment This decision makes sense! However, as I noted previously, why was Art. 15 (3) of the The Hague Convention not applied in both situations (service of the request for PI and service of the default decision). In my view, this provision also covers the service of the default judgment, because otherwise it would still not be possible to act effective in an urgent situation. The Court could, at the request of the party applying for the PI, indicate already in the decision what needs to be done to make sure that the defendant will become aware of the judgment (such as sending an email or a courier or an advertisement etc.).

Full Decision Text

1 Order of the Court of First Instance of the Unified Patent Court Local Division Munich issued on 21 January 2025 Headnotes: 1. The rules on service in the Rules of Procedure must be interpreted in accordance with the principle of effective legal protection. It must therefore always be possible to establish good service, at least in accordance with Rule 275.2 of the Rules of Procedure. 2. Where it has not been possible to serve the application for a provisional measure in accordance with Rule 274 of the Rules of Procedure and where there is no indication that the decision by default, which is issued subsequently in the same proceedings, can be served in accordance with Rule 274 of the Rules of Procedure, it is not necessary to attempt to serve the decision by default in accordance with Rule 274 of the Rules of Procedure before an order is made under Rule 275.2 of the Rules of Procedure. Local Division Munich UPC_CFI_509/2023 ACT_597615/2023 2 APPLICANT air up group GmbH, Friedenstraße 22a, 81671 Munich, Germany represented by: Jan Boesing (Bardehle Pagenberg) DEFENDANT Guangzhou Aiyun Yanwu Technology Co., Ltd., A09-3, No.9, Chentian Dashigang S.Road, Huangshi Street, Baiyun District, Guangshou, China PATENT AT ISSUE EP 3 655 341 PANEL/DIVISION Panel 1 of the Local Division Munich DECIDING JUDGE/S This order has been issued by the Presiding Judge Dr. Matthias Zigann and the legally qualified judges Pierluigi Perrotti and Tobias Pichlmaier LANGUAGE OF THE PROCEEDINGS English SUBJECT-MATTER OF THE PROCEEDINGS Service of a decision by default 3 SUMMARY OF FACTS The proceedings concern an application for provisional measures. The defendant is domiciled in China. The applicant has not requested for an ex-parte proceeding. Therefore, the service of the application at the defendant's domicile was arranged. The history of service is as follows: 27/12/2023 Applicant files application for interim measures and pays court fees 04/01/2024 Court’s registry starts preparations for the formal service of the application in China according to Article 5 (1) of the Hague Service Convention. 02/02/2024 In order to expedite service, the applicant, at the suggestion of the Registry of the Court, asks Mr Andy Long by e-mail whether informal service of the application by e-mail would be accepted on a voluntary basis (Article 5(2) of the Hague Service Convention); based on the pre- litigation correspondence with Mr Andy Long, this approach was promising; the e-mail remains unanswered. 21/02/2024 In order to expedite service, the Registry of the Court of First Instance asks Mr Andy Long by e-mail whether service of the application by e- mail is accepted on a voluntary basis; this e-mail also remains unanswered. 07/03/2024 Court registry requests for necessary copies and translations for formal service in China 02/05/2024 Submission of the requested copies and translations by the applicant, after significant difficulties in translating all the documents in a short period of time. 24/05/2024 Posting of the service documents by registry requiring the defendant to lodge an Objection to the Application for provisional measures within a time limit of two weeks from the service of the documents 11/06/2024 Receipt of the service documents by the competent authority in China according to the tracking number 4 04/07/2024 Court’s registry sends an inquiry to the competent Chinese authority regarding the status of service; no answer from the Chinese authority received 11/07/2024 Court’s registry informs Applicant about the date of service of the application to the Chinese authorities (11/06/2024). 08/11/2024 Court’s registry sends another inquiry to the competent Chinese authority regarding the status of service; no further information from the competent Chinese authority to the status of services in this case is given. 09/12/2024 Order of the Court declaring good service of the application for interim measures pursuant to Rule 275.2 RoP 09/01/2025 Court renders a decision by default; the decision by default is published on the Court’s website with the names of the parties and the file number, so that the decision can be found under the decisions published on the website 5 REQUEST The Applicant has made the following requests concerning service of the decision by default: I. The steps ordered to bring the decision by default in the proceedings ACT_597615/2023 to the attention of the Defendant constitute good service pursuant to R. 275.2 RoP. II. The order according to item I. is published on the Court’s website with the names of the parties and the file number, so that the order can be found under the decisions published on the website. GROUNDS FOR THE ORDER According to the case law of the Court of Justice of the European Union (ECJ C- 222/84) the guarantee of effective legal protection is a general principle of law that underlies the common constitutional traditions of the Member States and is reflected in Articles 6 and 13 of the ECHR. Effective legal protection means that an existing legal claim can be enforced in court. It would be incompatible with the principle of effective legal protection if the enforcement of an existing legal claim could fail because a court order cannot be served. Consequently, neither the ordering nor the enforcement of provisional measures under Article 62 UPCA can be frustrated by the fact that an application for a preliminary injunction or a court order issued in accordance with such an application cannot be served. The rules on service in the Rules of Procedure must be interpreted in accordance with the principle of effective legal protection. It must therefore always be possible to establish good service, at least in accordance with Rule 275.2 of the Rules of Procedure. 6 1. New service attempt under Rule 274 not required The court states that service of the application for a preliminary injunction could not be effected under Rule 274, so that an order under Rule 275.2 had to be issued in respect of the service of the application for provisional measures. Service of the application for provisional measures with the assistance of the competent Chinese authority was unsuccessful, although the application could be served on the competent Chinese authority by post and the court registry was in e-mail contact with the competent Chinese authority on this matter. However, the Chinese authority did not process the service for more than six months without any apparent reason. The Chinese authority thus seriously and definitively refused service. Under the Hague Service Convention, it is not at the sole discretion of the Chinese authority to decide whether or not to forward a duly completed request for service to the defendant. Otherwise, the Chinese authority would be able to determine whether or not the UPC could issue an order. Pursuant to Rule 6.1 RoP, the decision by default must also be served. However, where it has not been possible to serve the application for a provisional measure in accordance with Rule 274 of the Rules of Procedure and where there is no indication that the decision by default, which is issued subsequently in the same proceedings, can be served in accordance with Rule 274 of the Rules of Procedure, it is not necessary to attempt to serve the decision by default in accordance with Rule 274 of the Rules of Procedure before an order is made under Rule 275.2 of the Rules of Procedure. It is not compatible with the principle of effective judicial protection to force a claimant or even the court to take steps to effect service which are clearly futile. This is particularly true in proceedings for interim relief. Service of the judgment by default in accordance with Rules 270-274 of the Rules of Procedure must be regarded as impossible. 2. Alternative attempt of service under Rule 275.1 RoP If service in accordance with Rules 270-274 RoP is to be considered impossible, an attempt must be made, if possible, to effect service by an alternative method or at an alternative place (Rule 275.1 RoP). Rule 275.1 RoP also applies if the foreign authority refuses service seriously and definitively. 7 The Rules of Procedure do not provide for an exception to the requirement of alternative service (Rule 275.1 RoP). Such an exception would also not be in line with the apparent intention of the provisions on service to exhaust all available options to give the defendant the opportunity to take note of the application and to defend himself (LD Mannheim UPC_CFI_219/2023). In view of this, it seems inappropriate to penalize the defendant by not making further service attempts if the foreign authority refuses service in violation of the Hague Service Convention. However, a prerequisite for further attempts to effect service is that such attempts are possible in the first place. To qualify as an alternative method of service (Rule 275.1 RoP), the method must be factually and legally possible. An alternative method of service can only be dispensed with if there is no legally and factually possible alternative method of service. a. Service at another place is also not possible. No other place is known where the decision could be served. b. Service by an alternative method Both the applicant and the court have tried unsuccessfully to effect service of the application for a provisional measures both formally and informally. There are no other admissible alternative means of service of the default judgment; in particular, China has objected to judicial documents being sent directly to persons in China by post (Article 10(a) of the Hague Service Convention; see UPC_CoA_69/2024). The only way to bring the decision to the attention of the defendant is to publish it on the UPC website and to notify the defendant of this publication by e-mail (andy-long@joy-fit.cn). Both parties to the dispute actively corresponded via this e-mail address prior to the proceedings. In this context, reference is made to Rule 275.4 of the Rules of Procedure, which does not allow for an alternative method of service to be ordered which allows service in a manner contrary to the law of the State in which service is to be 8 effected. The Court does not know, nor could it reasonably be expected to know in an interim relief proceeding, whether other methods of service, such as service by publication (a method provided for, for example, by German national law but not by the RoP), are compatible with Chinese law. However, the court currently has no reason to believe that an order for public notice - for example, via a website - would be inconsistent with Chinese law. 3. Confirmation of good service On the assumption that the rules of service of the Rules of Procedure must be interpreted in accordance with the principle of effective judicial protection, and that it must always be possible to establish good service under Rule 275.2 of the Rules of Procedure, the Court declares that the publication of the decision on the Court's website, of which the defendant had been notified by e-mail at andy- long@joy-fit.cn, constitutes good service. Order 1. The publication of the decision by default in ACT_597615/2023 dated 09/01/2025 on the Court’s website with the names of the parties and the file number, so that the order can be found under the decisions published on the website, constitutes good service pursuant to Rule 275.2 RoP. 2. Service of the decision by default shall be deemed effective as of the date of this order. 3. The Registry shall publish this order (including the names of the parties and the file number) on the Court’s website. Dr. Zigann Presiding Judge Pichlmaier Judge-Rapporteur Perrotti Legally qualified judge

Key Holdings

• Effective legal protection is a general principle requiring that service of decisions always be possible.
• If service via The Hague Convention fails due to lack of cooperation, repeated attempts are not necessary (R. 274).
• The Court can declare good service under R. 275.2 RoP, such as via email, when other methods are not feasible.
• R. 275.1 RoP (service by alternative method or place) is only applicable if such service is genuinely possible.
• Article 15(3) of The Hague Convention could potentially be applied to cover service of default judgments in urgent situations.

Tags

• Default Judgment
• International Law
• Preliminary Injunction
• Service

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