UPC-CoA-935/2025 – X v Amycel

Court
Court of Appeal
Date
Outcome
Granted
Sector
Pharma/Bio
Decision Type
PROCEDURAL

Expert Commentary

Service / default Facts 1. Amycel is the owner of patent EP 1 993 350. It accused X of infringement due to the marketing of a mushroom strain under the name ‘Cayene’. 2. The LD The Hague issued an injunction in PI proceedings. 3. X appealed, filed a revocation action in the CD Milan but lost both proceedings by default. 4. Amycel started proceedings on the merit. The service of the Statement of Claim in Poland did not succeed. The JR concluded that the service constituted good service on the basis of R. 275 RoP. 5. The Statement of Defence was filed after the expiration of the three months and a re-establishment of rights was refused by the LD. A decision by default was issued (citing some of the considerations of the PI decision). 6. An application to set aside the decision by default was dismissed. 7. X appealed against all the decisions of the LD. The Court 1. With respect to the question if the service was valid, the Court of Appeal holds that the Registry attempted service twice in accordance with Art. 18 of the EU Service Regulation, but it failed both times. After that, the LD could validly apply the alternative service under R. 275 RoP, which does not necessarily have to be a method prescribed by internal Polish law. 2. In exercising its discretion under R. 9.3(a) RoP, the Court must take into account all of the circumstances of the case. This includes the reasons for the failure to comply with the time period, the conduct of the party and its representative, and how prompt the Court and the opposing party were informed of the relevant circumstances. A party seeking an extension on account of an unforeseen circumstance should inform the Court without undue delay once the circumstance becomes apparent, provided that such communication remains reasonably possible. 3. R. 353 RoP permits the Court to rectify clerical mistakes, errors in calculation and obvious slips in a decision or order. The circumstances contemplated by R. 353 RoP presuppose a discrepancy between the decision intended by the Court and its material expression. R. 353 RoP does not permit the Court, under the guise of rectification, to reconsider or alter a substantive legal assessment contained in the decision or to substitute a different legal conclusion for the one originally expressed. 4. Once an application to set aside a decision by default complies with the requirements of R. 356.2 RoP, the Court does not retain a general discretion to refuse it on the ground that the default is considered insufficiently justified or excusable. The explanation required by R. 356.2 RoP does not operate as a plea for relief as it requires the applicant to prove that the default occurred without fault or was otherwise excusable. It enables the Court to identify the cause and scope of the default and may involve the exercise of its discretionary powers in the subsequent conduct of the proceedings, including case-management orders, the allocation of costs and a notice under R. 356.3 RoP that a further decision by default shall be final. 5. The notice required by R. 356.3 RoP must be express and clear. It must specifically inform the party that, in the event of a further default, the resulting decision by default shall be final and that the remedy under R. 356 RoP will no longer be available. Mere notice that a decision by default will be issued does not satisfy that requirement. 6. Referral under R. 242.2(b) RoP may be justified where a procedural error prevented the inter partes written procedure from being completed before the Court of First Instance and deciding the action on appeal would require the Court of Appeal to conduct the remaining written procedure for the first time. Comment 1. I do agree with the Court of Appel that alternative service ex R. 275 RoP does not have to be a service according to the internal law of the country where service has to take place. However, I disagree that two failed attempts under Art. 18 of the EU Service Regulation is sufficient for applying R. 275 RoP. Art. 18 of the Regulation provides an alternative method of service under the Regulation. It is a very easy and cheap way of service: sending a registered letter with confirmation of receipt. Everybody with a bit of experience knows that a seasoned defendant will refuse to sign, which means that there is no valid service. Moreover, the defendant can refuse if it does not understand the language and can ask for a translation. The Registry only used this cheap method and did so twice. The Registry did not use the “normal” method which is described in Art. 8 of the Regulation. 2. My conclusion is that service under the Regulation was possible. In my opinion, one cannot conclude that service is not possible on the basis of two refused registered letters, and then serve a defendant on the basis of an internal UPC rule. 3. The Registry should have simply followed the method described in Art. 8 of the Service Regulation. 4. Finally, delivery by a private carrier is not, in my opinion, in accordance with Art. 18 of the Service Regulation. Although it has happened that a postman has himself forged the signature for recipient on the official form, that is clearly the exception. However, such practices are less guaranteed with a private carrier. 5. The headnotes are must read for both representatives and court of first instance judges.

Key Holdings

  • Alternative service under Rule 275 RoP does not necessarily have to be a method prescribed by internal national law of the country where service takes place.
  • Under Rule 9.3(a) RoP, the Court must consider all circumstances when exercising discretion to extend time periods, and parties must inform the Court without undue delay of unforeseen circumstances.
  • Rule 353 RoP only allows rectification of clerical errors or obvious slips and does not permit the Court to reconsider substantive legal assessments or substitute conclusions.
  • Once an application to set aside a default decision meets the formal requirements of Rule 356.2 RoP, the Court has no general discretion to refuse it on the basis that the default was insufficiently justified or excusable.
  • A referral back under Rule 242.2(b) RoP is justified where a procedural error prevented completion of the written procedure at first instance.

Tags

  • Service / default

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