[UPCKat] UPC Court of Appeal demonstrates (surprising) flexibility in order on appeal timelines

Over to Agathe, Hiske and Laura:  

“The Court of Appeal (CoA) found the appeal grounds filed by AIM within 2 months (instead of the 15 days prescribed by the Rules of Procedure) were admissible, considering an ambiguity in the Rules of Procedure and (incorrect/incomplete) information provided by the Court of First Instance (CFI).

By way of background, AIM had filed identical statements of claim alleging infringement of its EP 3295663 and applying for:

• a preliminary injunction by way of provisional measures (ACT_551054/2023); and
• a permanent injunction by way of an infringement action (ACT_545571/2023).

On 20 October 2023, the CFI dismissed both applications in one decision. Dealing with both statements of claim, the CFI stated in the section “information about the appeal” that the decision “may be appealed by the unsuccessful party within two months of the date of the notification of the decision”

AIM proceeded to lodge its Statement of Appeal against the dismissal of the request for provisional measures within two months of the date of the notification of the decision, on 20 December 2023.

However, as readers may be aware, Rule 224.1(b) RoP stipulates that the time period for lodging an appeal against an order referred to in Rule 220.1(c) RoP (including orders referred to in Art. 62 UPCA on provisional and protective measures), is within 15 days of service of an order.

The CoA did not accept AIM’s argument that the CFI decision of 20 October 2023 on the same act of infringement for both the preliminary and permanent injunctions constituted a single “final decision of the CFI” as defined in Rule 220.1(a) and that therefore both actions were subject to the two-month appeal deadline. Infringement proceedings and PI proceedings are treated as different proceedings and are dealt with separately in the UPC.

Instead, the CoA highlighted that, unlike infringement proceedings, provisional measures proceedings are not decided by way of final decision, but by way of order given the provisional nature of the proceedings (and article 62 UPCA does not change that). Therefore, the CFI should have issued an order on the provisional measure proceedings, separate from the decision in the infringement proceedings (even when both requests were denied for identical reasons and combined into one document).

For these separate decisions, different deadlines apply. The CoA stated that in the infringement proceedings, the time period of two months applied and in the provisional measures proceedings the applicable time period was 15 days.

Despite this initial finding that AIM’s Statement of Appeal for the provisional measures proceedings was therefore filed out of time, the CoA decided AIM’s appeal must be held to have been lodged in time and was admissible. This was despite Rule 9.4 RoP, which explicitly states that “the Court shall not extend the time periods referred to in Rules… 224.1,” because of an excusable error made under the following exceptional circumstances:

• the conduct of the CFI gave rise to AIM’s confusion;
• the ambiguous wording of article 62 UPCA and the absence of any clarifying case law at that time; and
• the principle of the protection of legitimate expectations pursuant to established EU (CJEU) case law.

These UPCKats were comforted by the CoA’s willingness to take a flexible approach to procedural miscommunications, even for significant filings such as appeal grounds.”