UPC_CFI_840/2026 – Guala v LD Packaging

Court
Local Division Milan
Date
Outcome
Granted
Sector
Other
Decision Type
PROCEDURAL

Expert Commentary

Service of Statement of Claim Facts 1. LD Packaging is a Chinese company. 2. Guala was in the process of suing LD Packaging via the The Hague Convention, without any result so far. 3. Guala noted that LD Packaging would be exhibiting in Germany. 4. Guala argued that this meant that LD Packaging would have a temporary place of business in the UPC territory, and asked the Court for consent to serve the Statement of Claim during the exhibition at the booth of LD Packaging. The Court The Court agreed with a very elaborate (and solid) reasoning. Comment 1. It is notoriously difficult to serve the Statement of Claim in main proceedings on a Chinese defendant. Often one has to await at least the 6-months period indicated in the The Hague Convention in order to be able to have effective service acknowledged by the Court. 2. Different from what we have seen from certain Divisions, this does not apply for preliminary measures pursuant to Art. 15(3) of the The Hague Convention. 3. The decision of the Local Division in Milan shows that if you want to start main proceedings against a Chinese defendant, it is worthwhile to check if the potential defendant is not exhibiting somewhere in the EU, in order to make smooth service possible.

Full Decision Text

Milan Local Division UPC CFI no. 840/2026 order issued on 30.4.2026 CLAIMANT GUALA PACK S.P.A. via Carlo Mussa n. 266, 15073 - Castellazzo Bormida (AL), Italy represented by Alberto Camusso, Lauren Rose Keller and Gianluca Pulieri, at Jacobacci Avvocati, corso Emilia n. 8, 10022 - Torino, Italy DEFENDANT LD PACKAGING (FOSHAN) CO., LTD no. 1 Fuda Road, Xiqiao Sci-Tech industrial Zone, Nanhai District, Foshan City, Guangdong Province, China DECIDING JUDGE presiding judge and judge-rapporteur Pierluigi Perrotti LANGUAGE OF PROCEEDINGS English SUBJECT MATTER Application R. 271 RoP SUMMARY OF FACTS On 6.3.2026 Guala Pack s.p.a. started an infringement action against the Chinese company LD Packaging (Foshan) Co. Ltd before the Milan Local Division. On 27.4.2026 the claimant lodged an application pursuant to R. 271 RoP and stated as follows. The statement of claim was in the process of being served on the defendant’s registered office in China, in accordance with the provisions of the Hague Convention of 15 November 1965. At this stage, the outcome of the service was not yet known. Guala Pack had recently learnt that LD Packaging would be exhibiting at the Interpack trade fair in Düsseldorf (Germany) from 7 to 13 May 2026. Interpack was one of the world’s leading trade fairs in the packaging sector: it was held every three years in Düsseldorf and was therefore an important opportunity for commercial promotion. 2 of 5 The LD Packaging exhibitor page further clarifies that the defendant will be formally represented (at least) by its official European Sales Manager, identified as By operating a stand at the Interpack trade fair for the purpose of carrying out commercial activities, LD Packaging has chosen a place of business for the duration of the event in Düsseldorf, Germany. This domicile was within the territory of the UPC Member States and under the jurisdiction of the UPC Local Division Milan. A company or legal person’s operation of a stand in a trade fair for commercial purposes constituted a “temporary place of business” for the purposes of R. 271(5)(a) RoP, with the consequent possibility of serving the statement of claim in accordance with the rules for service within the contracting member states (R. 270 and seq. RoP). In this case, service had to be made in accordance with the method provided by R. 271.4(b) RoP, since the other methods were not, in practice, applicable. Guala Pack requested the Court to 1) order service the statement of claim in the pending action, both the original English version and the translation into Chinese, on the defendant, at the stand operated by LD Packaging (Foshan) Co. Ltd., at the Interpack Trade Fair (Hall 10, Stand A77), located at the Messe Düsseldorf Exhibition Center, at Stockumer Kirchstraße 61, 40474 Düsseldorf, Germany, between 7 - 13 May 2026; 2) stipulate that the UPC Representatives indicated above and any other representatives of Applicant, either from the firms of Jacobacci Avvocati or Meissner Bolte, particularly including Mr. Andreas Kabisch, LL.M. Eur., Attorney-at-law, UPC litigator, Mr. Niels Schuh, Attorney-at-law, UPC litigator, Both domiciled at the firm of Meissner Bolte Patentanwälte Rechtsanwälte mbB, Widenmayerstraße 47, 80997 München, phone: +49 email: may assist the Court bailiff with the service as per point 1), to the extent deemed appropriate and necessary. GROUNDS FOR THE ORDER The application submitted by Guala Pack is admissible and well-founded. The application of the rules governing the service of documents within the territory of the contracting member states is subject to the general conditions laid down in R. 271.5 RoP. Insofar as it is relevant to this case, R. 271.5(a) provides as follows: “Service under this Section shall be effected at the following place: (a) where the defendant is a company or other legal person, at its statutory seat, central administration or principal place of business within the Contracting Member States or at any place within the Contracting Member States where the company or other legal person has a permanent or temporary place of business”. According to authorative legal doctrine, this rule shall be interpreted in the sense that service may be effected where the company conducts its business even if the company does business 3 of 5 only temporarily at that location. Therefore, service can be carried out at a trade fair or exhibition if the exhibitor is conducting business there. In the case at hand, the defendant advertised its participation in the Interpack trade fair, specifically stating that a European sales manager would be there in personal attendance (exhibit 45 and 46). By definition, a trade fair is an ideal venue not only for commercial promotion but also for actually securing orders, a process facilitated by direct contact between visitors and exhibitors. The fact that a sales manager will be present further reinforces this argument, making it clear that LD Packaging is there not only to promote its products but also to conclude sales and, more generally, to engage in commercial activities aimed at securing future business. In light of these findings, the Court therefore considers that defendant is a company that will have a temporary place of business within the Contracting Member States, specifically in Düsseldorf, Germany, at the premises of the Interpack trade fair, stand 10/A77, from 7 to 13 May 2024. Once it has been established that the rules on service within the contracting member states apply, it must be ascertained whether the method requested by the claimant for the service of the statement of claim is indeed the correct one to be adopted in this specific case. It is clear that the service of the statement of claim cannot be effected by electronic means, as none of the conditions set out in R. 271.1(a) (b) and (c) RoP are met. The methods set out in R. 271.4 RoP must therefore be applied, following the hierarchy specified in this rule. In accordance with Rule 271.4(a) RoP, once service by electronic means is excluded, the Registry shall serve the statement of claim by any method foreseen by the law of European Union, particularly, by Regulation (EU) 2020/1784, with an express favour for registered letter with acknowledgement of receipt (Art. 18) It is clear that the preferred method - registered letter - is not feasible in this case because it does not provide adequate guarantees that the document will be delivered in time by the last day of the fair trade, 13 May. Similarly, service via transmitting and receiving agencies (Articles 3 - 4) and via diplomatic or consular channels (Art. 16) involves bureaucratic procedures that make it virtually certain that the notification cannot be completed by 13 May. It should also be noted that transmission via diplomatic or consular channels should only be carried out “in exceptional circumstances”. As regards service by electronic means (Art. 19), it has already been established that the conditions are not met. There is a last method provided by the Regulation, which is direct service (Art. 20). Art. 20 reads as follows: “Any person with an interest in particular judicial proceedings may affect the service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State in which the service is sought, provided that such direct service is permitted under the law of that Member”. It is debated and therefore not completely clear if it is possible in Germany to address this direct service process by Court’s request, considering the literal reference to “any person” included 4 of 5 in Art. 20. The official instructions published on the European e-Justice Portal seem to confirm this stricter interpretation as the preferable one. Therefore, the final view of this Court is that Art. 20 is to be limited only to service between / at the instigation of the parties, solution that appears more consistent with the wording of the provision in question. Ultimately, it is entirely reasonable to conclude that none of the methods specified by Regulation (EU) 2020/1784 can be effectively implemented. Since service in accordance with paragraph 4(a) cannot be effected, the Court may consider any method permitted by the law of the Member State of the European Union where service is to be effected, as provided by R. 271.4(b) RoP. In this case, German national law is applicable because the defendant's temporary place of business will be located in Düsseldorf at the Interpack trade fair premises. Particularly, sections 168 and 176 of the German Code of Civil Procedure allow the service of a statement of claim by request of the Court, to be carried out under the responsibility of a “Gerichtsvollzieher”, that can be considered as "enforcement officer" i.e. the bailiff. The requirements of section 168 par. 2 of the Code of Civil Procedure are met, since service according to section 168 par. 1 of the Code of Civil Procedure (service by electronic means to attorneys on record, service by physical delivery at the sub-registry, service against return confirmation of receipt or service by registered mail) does not guarantee success for the same reasons set out above. The Court considers that all the requirements of R. 270 and seq. RoP for the application of the method of service requested by the Claimant are met in the present case, and the Claimant's request is therefore granted. The parallel initiation of the service process in accordance with R. 273 et seq. RoP does not prevent service from being effected in the manner requested by the claimant. The circumstance on which the request is based has, in fact, arisen during the course of the proceedings and justifies the application of the rules governing service within the Member States. The ongoing current service process in accordance with the forms provided for by the Hague Convention does not cause any possible prejudice to the defendant’s position and, indeed, leaves open a further possibility of achieving the result of certified legal notice of the pendency of the present proceedings. ORDER Pursuant to R. 271.4(b) RoP, the Court orders that service of the statement of claim and the letter for service, as well as Chinese translations of these documents, together with this order, may be effected by service at the Interpack Trade Fair located at the Messe Düsseldorf Exhibition Center, at Stockumer Kirchstraße 61, 40474 - Düsseldorf, to be held from 7 to 13 May, by a German bailiff according to German national law - where needed (at the discretion of the bailiff) with the assistance of the claimant’s representatives present - upon Mr. 5 of 5 in his capacity of European Sales Manager or, as an alternative, upon the most senior staff member of the Defendants actually present at the exhibition stand. The clerks at the Sub-Registry are instructed to proceed accordingly. The claimant shall provisionally bear any costs that may be incurred for the purpose of the service process. Milan, 30 April 2026. Pierluigi Perrotti presiding judge and judge rapporteurPierluigi Perrotti Firmato digitalmente da Pierluigi Perrotti Data: 2026.04.30 10:38:45 +02'00'

Key Holdings

  • Service of a Statement of Claim on a Chinese defendant can be challenging.
  • Exhibiting in the UPC territory can establish a temporary place of business for service purposes.
  • The Court may grant consent for service of a Statement of Claim at an exhibition booth.
  • This method can facilitate initiating main proceedings against non-EU defendants.

Tags

  • Service
  • Jurisdiction
  • Procedural Law
  • International Law

Related Cases

View original decision