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A Code of Conduct for the representatives before the UPC: The recommendations of the Council of Bars and Law Societies of Europe

Last week, the Council of Bars and Law Societies of Europe (CCBE) published its comments  on the Code of Conduct for the representatives before the UPC, drafted by the EPLAW, EPLIT and epi .

The CCBE  thereby responds to the Preparatory Committee’s declaration, after its last meeting on 14th April 2016, that the Code of Conduct would be agreed at the end of May, for it to be ready for the UPC’s entry into force in February 2017.

Rule 290 and 291 of the UPC Draft Rules of Procedure in fact respectively provide that representatives before the UPC must comply with the Code of Conduct and if in breach may be excluded from the proceedings by the Court.

The UPC draft Code of Conduct has not however been made public yet, and the CCBE has not had access to it. The CCBE’s general comments therefore provide a helpful insight into the core principles that should govern the UPC Code of Conduct, and, raise important questions about issues such as independence, impartiality and interpretation.

The CCBE focuses on seven points:

  • “A minimum standard”: The CCBE, fearing that it would be difficult to design “a single Code of Conduct for all representatives covering all matters”,  invites the Preparatory Committee to clearly identify the basic legal principles applying to all representatives irrespective of their nationality or position (lawyer, patent attorney, solicitor, etc) to ensure a minimum standard for all appearing before the Court.
  • “Enforcement of the code”: The CCBE recommends that complaints from the Court about the representatives’ behaviour be “adjudicated  by a relevant body rather than the judges themselves or the Court”.  The CCBE in fact highlight, that the UPC judges may not have been trained to handle complaints, and, that an independent body would be a guarantee for impartiality .
  • “Complaints procedure”: The CCBE warns that “(n)either the Rules of Procedure nor the Code appears to explain how a complaint of a breach of the Code is to be made, whether anyone is free to make such a complaint, to whom they should complain, nor whether there is any time limit”.
  • “Possible conflicting obligations”: The CCBE has identified areas where the UPC Code of Conduct and national codes of conduct may conflict, resulting in impossible ethical dilemmas for representatives who would not be able to comply with both codes. The CCBE therefore calls for a careful review of compatibility of all codes of conduct.
  • “Appeals”: Neither the Rules of Procedure nor the Draft Code of Conduct explain the appeal procedure allowing the representatives to challenge a sanction. The CCBE alerts the Preparatory Committee of this oversight and advises against designating the UPC Court of Appeal as the appropriate appeal mechanism, which might lack the required independence.
  • “Sanctions”: The Rules of Procedure appear to indicate that there is only one sanction available to the UPC judges under Rule 291, namely exclusion from the proceedings. The CCBE however points up that “Regulators and Ethics Committees enforcing Codes of Conduct normally have available to them a wide range of sanctions so that they can deal proportionately with each complaint”. In fact, as explained by the CCBE, the consequences of an exclusion  can be very severe and significantly affect both parties.
  • “Interpretation of the code”: The CCBE advises the Preparatory Committee to clarify whether the  Code is to be interpreted strictly or liberally, i.e. whether the code of Conduct contains general principles or “detailed and unambiguous regulations”.

The CCBE concludes it letter by regretting not to have more time and more opportunities to contribute to the UPC Code of Conduct, a view shared by the UPC Blog. In fact, a consultation of the future UPC representatives on the Code of Conduct that will regulate their behaviour before the Court would certainly have been very fruitful.

The CCBE’s letter of comments can be found below. 

[embeddoc url=”http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/CCBE_President_lette1_1462522685.pdf”]

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The recruitment of Judges for the UPC has started

UPC Judges recruitment 2019

The Unified Patent Court announced on its website the start of the recruitment of the legally and technically qualified  judges  for the UPC Court of First of Instance and Court of Appeal.

The vacancy notices have been published in French, English and German and the application deadline is 04 July 2016. The announcement can also be found here.

The appointment procedure will then be finalized after the entry into force of the Protocol on Provisional Application and subsequently the Agreement on the Unified Patent Court.

 

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Bulgaria will be 10th country to ratify the UPCA:

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

Bulgaria will be the next country to ratify the UPC Agreement according to the UPC Preparatory Committee which expects the ratification to happen by the end of April.

Bulgaria would then become the 10th country to ratify the UPCA ( Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal and Sweden have already ratified). To enter into force the UPCA must be signed by 13 countries including France, Germany and the UK.

See our ratification table here and all the news about ratification here.

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UPC Judges recruitment process to start by the end of May:

UPC Judges recruitment 2019

The UPC Preparatory Committee met in Luxembourg on 14th April 2016  and reached an agreement on the UPC judges’ recruitment package. As explained by the Unified Patent Court this means that judicial appointments can be advertised in May, with the recruitment process starting at the same time.

The Committee also discussed a draft Code of Conduct for practitioners developed by EPLAW, EPLIT, and the epi, which should be agreed at the next meeting of the Committee at the end of May.

This will be completed by a signing ceremony on the Protocol on Privileges and Immunities at the end of June.

 

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Are you a Unified Patent Court neophyte? Here are a few videos for a quick catch up:

The European Patent Office (EPO) announced shortly before Christmas that the Unitary Patent (UP) was legally and technically ready while the date for the entry into force of the Unified Patent Court was officially set for early February 2017. 

The Court and Patent fee structures have been finalised, the creation of the IT system administering the electronic filing is soon to be completed, the Rules of Procedure have been through 18 drafts, and the UPCA Agreement has already been ratified by 9 countries, to name but a few steps towards the entry into force of the UPC.

The Unified Patent Court (UPC) and the Unitary Patent are thus nearly ready and time is running low before we all need to be UPC-fluent!

Indeed, some of us are already working on mastering the rules of procedure, case management system, and UPCA, while others are designing their new IP strategy in light of the coming harmonisation of patents in the European Union. In this UPC frenzy however it is difficult for UPC neophytes to know where to start…The UPC Blog would therefore like to dedicate them this page.

Here UPC novices will find short videos introducing the UP and UPC. Our posts can then easily be accessed through the main categories at the top of the page or through tags (for specific topics) for in-depth analysis and “fresh” news. You can also use the “reply” section (at the bottom of most posts) for your questions or comments. 

ABC of the UPC:

  • The European Patent Organisation has published a short video in which Benoit Batistelli, its president,  “reflects on the advantages of the Unitary patent” and explains the main characteristics of the Unitary Patent and the changes that will appear with the Unified Patent Court.

This video does not address issues related to the UP and UPC in-depth, but is a good tool for those who want to  understand quickly the impact the Unitary Patent and Unified Patent will have on the present patent environment.

  • Three videos from the 2014 European Patent Forum published on youtube by Managing IP will also give  a better understanding of the stakes behind the UP and UPC to newbies:

In the first one, Luke McDonagh, an academic from City University London analyses the issues he uncovered in his report produced for the UK Intellectual Property Office on attitudes towards the UP.

The second and the third videos, are example of what companies expect from the UP and UPC.

Watch this space: More videos from the UPC Blog will soon complete this sample…

 

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The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016: Despite the Brexit referendum the UK is getting ready to take part in the UPC.

Encouraging steps by participating member states towards the entry into force of the UPC Agreement

As mentioned a few weeks ago the UK Parliament has been working on secondary legislation to amend the UK Patents Act 1977 to give effect to the UPC Agreement and EU legislation on the Unitary patent.

The final legislation has now been published.  The Statutory Instrument (SI)  (2016 No. 388) was signed on 12 March 2016  without the Parliament needing to amend it. It will however only come into force when the UPC Agreement comes into force (art 1(2) SI) .

This SI is only one of the two SIs required to enable the UK to ratify the UPC Agreement.  The other SI is required to reflect the UPC Protocol on Privileges and Immunities, and is now being drafted following the recent approval of that Protocol by the Preparatory Committee at the February meeting.

Since the UK Brexit referendum is getting closer and has become a subject of much speculation it is interesting to note the opposite dynamics that it has created.  On the one hand, it seems that were the UK to leave the EU, it would no longer  be able to take part in the UPC, as noted in the House of Commons debate on  01/03/2016 on the SI.

On the other hand, the UK government has adopted  a policy  whereby it proceeds on all matters on the basis that the UK will remain in the EU. The UK IPO for example stated that the Brexit referendum will have no effect on the UK’s ratification of the UPCA by mid-2016 and on the opening of the Court at the start of 2017. Indeed the Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 is a tangible proof of the UK government’s willingness to be ready on time for the UPC to meet its opening schedule.

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Will the UK ratify the UPCA before its referendum on the EU membership?

Brexit and the German constitutional challenge

In a statement sent to the magazine Managing IP the UK IPO declared that “the UK’s EU referendum will have no effect on UK ratification of the Unified Patent Court Agreement by the middle of 2016. This is in line with the timescale identified for the conclusion of the preparatory work necessary for the UPC to become operational.  Ratification will happen before the Court is expected to open, in early 2017.”

Similarly the UK’s Chartered  Institute of Patent Attorneys confirms that “the Government is proceeding on the basis that the UK will remain in the European Union. The UK Intellectual Property Office is working actively to establish the Unified Patent Court (UPC) and is preparing for ratification of the UPC Agreement.” It also published a table which highlights the major consequences on the intellectual property system the UK will face if choosing to leave the EU.

This issue was also raised in UK Parliament before the Fourth Delegated Legislation Committee on Monday 01/03/16 when Mr Edward Vaizey,  the UK Minister for Culture and the Digital Economy, introduced the Draft Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 to the committee, meeting which is reported  in the hansard published by Parliament.

Mr Vaizey therefore explains to the Committee that it would  be “clearly, were we to leave the European Union, we would no longer be members of the unified patent court. It would then be a matter for  ​the UK Government to ask the European Union whether we could be a member, if we thought that was a good thing. I suspect the European Union would have something to say about that. For people whose lives are dominated by thoughts of having a European patent, it would be a bad thing if we were not a member of the European Union. I hope that that is clear.” The Minister reminded the Committee at this occasion that the aim of the creation of the UPC and Unitary Patent was to “boost competitiveness and drive growth, and for a target to cut the burden on business.“

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Scale of ceilings for recoverable costs:

The Preparatory Committee agreed last week on the ceilings applicable to recoverable costs together with Court Fees (see our post here on this topic). In this post we look at the specification of the costs deemed recoverable and the determination of the ceilings for the recoverable costs.

So which cost can be recovered?

  • Only reasonable and proportionate legal costs and other expenses incurred by the successful party may be recovered from the unsuccessful party.
  • The ceilings of recoverable costs shall apply to representation costs.

 

And how much can be recovered? 

These ceilings are a compromise to accommodate the different approaches already existing in the Member States:

  • The ceiling shall be applied to each instance of the Court proceedings regardless of the number of parties, claims or patents concerned
  • In case of partial success the ceiling applicable in the case shall correspond to the proportion of success of the party seeking cost recovery.
  • Unnecessary costs caused to the Court or the other party shall be borne by the party incurring them, which means that even the successful party has to reimburse costs caused that are deemed unnecessary by the Court.

The ceilings are only to be regarded as a safety net, i.e. an absolute cap on recoverable representation costs applicable in every case. The Court has therefore a large margin of appreciation when applying the safeguarding principles before making a cost decision, and the table of ceilings is designed to cater to most situations:

  • In limited situations, such as the particular complexity of the case or multiple languages used in the proceeding, the Court may upon request by one party, having regard to the financial capability of all the parties in the light of the principle of fair access to justice, raise the ceiling by up to 50%. The increase will be limited to up to 25% where the value is more that EUR 1 million and up to and including EUR 50 million. The top ceiling however retains an absolute maximum of EUR 5 million.
  • There is no limit to the level the ceilings may be reduced.
  •  Upon request of one of the parties, the Court may lower the ceiling with regard to that party if, in the event that the requesting party is unsuccessful, the applicable level of recoverable costs of representation to be awarded to the successful party would threaten the economic existence of the requesting party, especially if the latter is a micro-enterprise, SME, non-profit organisation, university, public research organisation or natural person. All types of organisation may make this request, but those from micro-enterprises, SMEs, non-profit organisations, universities, public research organisations or natural persons are given particular emphasis in the wording.

 

The Table of ceilings for recoverable costs:

Value of the proceedingCeiling for recoverable costs
Up to and including 250.000 €Up to 38.000 €
Up to and including 500.000 €Up to 56.000 €
Up to and including 1.000.000 €Up to 112.000 €
Up to and including 2.000.000 €Up to 200.000 €
Up to and including 4.000.000 €Up to 400.000 €
Up to and including 8.000.000 €Up to 600.000 €
Up to and including 16.000.000 €Up to 800.000 €
Up to and including 30.000.000 € €Up to 1.200.000 €
Up to and including 50.000.000 €Up to 1.500.000 €
More than 50.000.000 €Up to 2.000.000 €
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The UPC Court Fees in detail: How much will we need to pay for each action before the UPC?

The Court Fees were agreed last week by the Preparatory Committee. They are divided between Fixed and Value-based Fees.

Fixed Fees start at 100€ for an Application to prolong the period of a protective letter kept on the register and go as high as 20,000€ for a Revocation action.

As for Value-based Fees, there will be none for an action up to and including 500.000€ and will reach 325.000€ for an action valued at more than 50.000.000€.

This post will look in detail at the different categories of fees and at the method chosen by the Preparatory Committee to value the action.

It will refer to the “Guidelines for the determination of Court fees and the ceiling of recoverable costs of the successful party” and the “Rules on Court Fees and Recoverable Costs” both published by the Preparatory Committee on the UPC website on 25/02/2016.

Actions requiring a Fixed AND Value-based Fee:

Claimants must pay a fixed and a value-based fee for the five following actions:

(1) Infringement action [R. 15]

(2) Counterclaim for infringement [R. 53]

(3) Action for declaration of non-infringement [R. 68]

(4) Action for compensation for license of right [R. 80.3]

(5) Application to determine damages [R. 132]

First Instance

Tables of Fees (Fixed Fee and Value-based Fee):

Procedures/actions Fixed Fee
Fixed fee Infringement action [R. 15]11.000 €
Counterclaim for infringement [R. 53]11.000 €
Action for declaration of non-infringement [R. 68]11.000 €
Action for compensation for license of right [R. 80.3]11.000 €
Application to determine damages [R. 132]3.000 €

Value of actionAdditional Value-based Fee
Up to and including 500.000 €0 €
Up to and including 750.000 €2.500 €
Up to and including 1.000.000 €4.000 €
Up to and including 1.500.000 €8.000 €
Up to and including 2.000.000 €13.000 €
Up to and including 3.000.000 €20.000 €
Up to and including 4.000.000 €26.000 €
Up to and including 5.000.000 €32.000 €
Up to and including 6.000.000€39.000 €
Up to and including 7.000.000 €46.000 €
Up to and including 8.000.000 €52.000 €
Up to and including 9.000.000 €58.000 €
Up to and including 10.000.000 €65.000 €
Up to and including 15.000.000 €75.000 €
Up to and including 20.000.000 €100.000 €
Up to and including 25.000.000 €125.000 €
Up to and including 30.000.000 €150.000 €
Up to and including 50.000.000 €250.000 €
More than 50.000.000 €325.000 €

Appeal

Tables of Fees (Fixed Fee and Value-based Fee):

Appeals/ApplicationsFees
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an infringement action [R. 15]11.000 € + additional value-based fee according to the value of the action (see below for its method of calculation)
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to a counterclaim for infringement [R. 53]11.000 € + additional value-based fee according to the value of the action (see below for its method of calculation)
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an action for declaration of non-infringement [R. 68]11.000 € + additional value-based fee according to the value of the action (see below for its method of calculation)
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an action for compensation for license of right [R. 80.3]11.000 € + additional value-based fee according to the value of the action (see below for its method of calculation)
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an application to determine damages [R. 132]
3.000 € + additional value-based fee according to the value of the action (see below for its method of calculation)

 

Value of actionAdditional Value-based Fee
Up to and including 500.000 €0 €
Up to and including 750.000 €2.500 €
Up to and including 1.000.000 €4.000 €
Up to and including 1.500.000 €8.000 €
Up to and including 2.000.000 €13.000 €
Up to and including 3.000.000 €20.000 €
Up to and including 4.000.000 €26.000 €
Up to and including 5.000.000 €32.000 €
Up to and including 6.000.000€39.000 €
Up to and including 7.000.000 €46.000 €
Up to and including 8.000.000 €52.000 €
Up to and including 9.000.000 €58.000 €
Up to and including 10.000.000 €65.000 €
Up to and including 15.000.000 €75.000 €
Up to and including 20.000.000 €100.000 €
Up to and including 25.000.000 €125.000 €
Up to and including 30.000.000 €150.000 €
Up to and including 50.000.000 €250.000 €
More than 50.000.000 €325.000 €

See section 3 for the valuation method

Actions requiring a Fixed Fee only:

First Instance

The following actions require a Fixed Fee only :

(1) Revocation action [R. 47]

(2) Counterclaim for revocation [R. 26]

(3) Application for provisional measures [R. 206.5]

(4) Action against a decision of the European Patent Office [R. 88.3, 97.2]

(5) Application to preserve evidence [R. 192.5]

(6) Application for an order for inspection [R.199.2]

(7) Application for an order to freeze assets [R. 200.2]

(8) Filing a protective letter [R. 207.3]

(9) Application to prolong the period of a protective letter kept on the register [R.207.8]

(10) Application for rehearing [R. 250]

(11) Application for re-establishment of rights [R. 320.2]

(12) Application to review a case management order [R. 333.3]

(13) Application to set aside decision by default [R. 356.2]

Table of Fees (Fixed Fees):

Procedures/actions
Fixed Fee
Revocation action [R. 47] 20.000 €
Counterclaim for revocation [R. 26]Same fee as the infringement action subject to a fee limit of 20.000 €
Application for provisional measures [R. 206.5]11.000 €
Action against a decision of the European Patent Office [R. 88.3, 97.2]1.000 €
Application to preserve evidence [R. 192.5]350 €
Application for an order for inspection [R. 199.2]350 €
Application for an order to freeze assets [R. 200.2]1.000 €
Filing a protective letter [R. 207.3]200 €
Application to prolong the period of a protective letter kept on the register [R. 207.8]100 €
Application to review a case management order [R. 333.3]300 €
Application to set aside decision by default [R. 356.2]
1.000 €

Court of Appeal

The following actions require a Fixed fee only:

(1) Appeal pursuant to Rule 220.1 (a) and (b) [R 228]

(2) Interlocutory appeals [R. 220.1 (c)]

(3) Application for leave to appeal [R. 221]

(4) Request for discretionary review [R. 220.2, R. 228]

(5) Application for re-establishment of rights [R. 320.2]

(6) Application to review a case management order [R. 333.3]

(7) Application to set aside decision by default [R. 356.2]

Table of Fees (Fixed Fees):

Appeals/applicationsFee
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an application for provisional measures [R. 206.5]11.000 €
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to a revocation action [R. 47]20.000 €
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to a counterclaim for revocation [R. 26]
Fee paid in the first instance
Application for rehearing [R. 250]2.500 €
Appeal pursuant to Rule 220.1 (a) and (b) [R 228] as to an action against a decision of the European Patent Office [R. 88.3, 97.2]1.000 €
Interlocutory appeals [R. 220.1(c.), 228]3.000 €
Application for leave to appeal against cost decisions [R. 221, 228]1.500 €
Request for discretionary review [R. 220.3, 228]350 €
Application for re-establishment of rights [R. 320.2]350 €
Application to review a case management order [R. 333.3]300 €
Application to set aside decision by default [R. 356.2]1.000 €

How to determine the value of the action when faced with a value-based fee:

The governing principles of valuation

Where the parties agree on a valuation the Court should in principle base its valuation on their estimate.

If the parties do not agree on the valuation, the “Guidelines for the determination of Court fees and the ceiling of recoverable cost of the successful party” set a method for the UPC Judges to follow:

  • The main principle is that valuation should be as simple as practically possible.
  • Valuation should therefore be based on “an appropriate license fee”.
  • A valuation based on the claimant’s loss of profits or the defendant’s profits gained may also be applied, where appropriate, but the Preparatory Committee warns that it “will normally be too complex to be determined at the beginning of proceedings resulting in a mini-trial”.
  • Valuation should also relate to the summed up values of the main remedies claimed (injunction for the future, damages for the past), not excluding, where appropriate, the value of other remedies claimed.

If the amount of payable Court fees threatens the economic existence of a party who is not a natural person, who has presented reasonably available and plausible evidence to support that the amount of Court fees threatens its economic existence, the Court may upon request by that party, wholly or partially reimburse the fixed and value-based fee. The request shall be dealt with by the Court without delay. In reaching a decision the Court shall reflect on all circumstances of the case including the procedural behaviour of the party. Before making such a decision the Court may give the other party an opportunity to be heard. A party who is adversely affected by the order may bring an appeal pursuant to Rule 220.

The Suggested Approaches

(1) Infringement action / Action for Declaration of non-Infringement / Action for compensation for license of rights

(a) Determining the value for applying the Rules on Court fees & (b) Determining the value for applying the Rules on recoverable costs:

The calculation of the value of the injunction claim and for the damage claim should be based on a royalty calculation as follows:

  • The defendant’s turnover in the alleged infringing product for the future up to the expiry of the patent (injunction claim) and for the past (damage claim) should be calculated based upon the known existing turnover of the defendant or, if not known or not yet existent, the market share the defendant has taken and/or may reasonably be assumed to take.
  • A royalty rate should be applied to the defendant’s turnover based upon: (a) the existing royalty rate for the same invention charged by the claimant, or (b) the generally accepted industry rate for the type of invention in question, or (c) a royalty rate determined by the Court after hearing the parities.
  • Where a damage claim (i) is limited to awarding damages in principle, the value of that claim should be reduced by 50%; (ii) specifies the amount of damages, the value should correspond to the amount claimed.
  • The value of an Application for the Determination of Damages including any Request to lay open books should correspond to the amount of damages specified in the Application or if no such sum is specified the value as calculated in accordance with the defendant’s turnover and the royalty rate applying to this turnover.
  • If the action is based on more than one patent and/or if the action is directed against more than one party the value should be calculated in accordance with the defendant’s turnover and the royalty rate applying to the defendant’s turnover on the basis of a combined license for all patents and all defendants across all territories covered by the patents.

(2) Counterclaim for revocation / revocation actions

(a) Determining the value for applying the Rules on Court fees:

There is no need to determine the value of revocation counterclaims or revocation actions since for both actions there is only a fixed fee to be paid.

(b) Determining the value for applying the Rules on recoverable costs:

  • The value of a counterclaim for revocation or of a revocation action should be determined having regard to the value of the patent to be revoked.
  • In the absence of relevant information (i) the value of a revocation action may be assumed to be equal to the value of an appropriate license fee calculate on the basis of the turnover of the parties for the remaining lifetime of the patent, (ii) the value of the revocation counterclaim may be assumed as being equal to the value of the infringement action (1. (a), above) plus up to 50%.
  • If the action concerns more than one patent, the value of each patent should be calculated separately and the values determined should be added together to become the value of the action.
  • The value of the infringement action and the value of the revocation counterclaim pending before the same division should be added together for determining the level of recoverable costs.

(3) Application for interim relief pursuant to Article 62 of the UPC Agreement

(a) Determining the value for applying the Rules on Court fees:

There is no need to determine the value of an Application for interim relief since for such an Application there is only a fixed fee to be paid.

(b) Determining the value for the Rules on recoverable costs:

In case of the application for interim relief which is not followed by an infringement action on the merits the value of an application for interim relief for determining the level of the recoverable costs should be calculated at 66% of the value calculated in accordance with 1. (b) above.

Payments and Reimbursements of Fixed and Value-based Fees:

  • The issue as to when to assess the case value and pay the value-based fee was discussed in depth by the Expert Panel of the Preparatory Committee. The Panel recommended that claimants make their own value assessment and pay the fee based on that at the same time as the fixed fee; that is when lodging the relevant application. If there is any contention over the assessment this will be rectified at the interim conference.
  • If the action is heard by a single judge (Rule 345.6.) the party liable for the Court fees will be reimbursed by 25 %.
  •  In case of the withdrawal of an action (Rule 265) the party liable for the Court fees will be reimbursed by:
  • 60 % if the action is withdrawn before the conclusion of the written procedure
  • 40 % if the action is withdrawn before the conclusion of the interim procedure
  • 20 % if the action is withdrawn before the conclusion of the oral procedure

 

  •  If the parties have concluded their action by way of settlement the party liable for the Court fees will be reimbursed by:
  • 60 % if the action is settled before the conclusion of the written procedure
  • 40 % if the action is settled before the conclusion of the interim procedure
  • 20 % if the action is settled before the conclusion of the oral procedure

 

  • Only one of the reimbursements referred to in subsection (a), (b) and (c) will apply per action and party. Where more than one reimbursement is applicable, the larger will be applied for each party.
  • In exceptional cases, having regard, in particular, to the stage of the proceedings and the procedural behavior of the party, the Court may decide to deny or decrease 6 / 21 the reimbursement according to subsection (b) and (c) of the aforementioned provisions.
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No Opt-Out Fee!!

As part of the recent amendment by the Preparatory Committee of Rule 370 of Procedure which deals with Court Fees and Recoverable Costs voted on 25th February 2016, it appears from the draft* published on the UPC website that there will be no fee for the opt-out! 

In fact, the Committee explains that processing the opt-out fee would generate an administrative cost for the Court. The Preparatory Committee being cautious of not burdening the applicant with a heavy fee for the opt-out, it therefore decided to remove the fee so as to remove the cost for the Court. The Committee also explains that having a no fee policy for the opt-out “also eliminates the problem of how to process payments particularly during provisional application.”

The decision not to charge for opt-outs seems also to have been motivated by the clear consensus on this issue which appeared in the different public consultations on the necessity to remove or lower the opt-out fee ” to reflect the commitment made by the Preparatory Committee that the fees for both the opt-out and its withdrawal are set to reclaim administrative costs only and that the Court would not profit from either of these.”

 

*The Rules on Court Fees and Recoverable costs were agreed by the Preparatory Committee but are subject to legal scrubbing. The definitive version should not however vary substantially from the version below. See page 17 for the paragraph on Opt-Out Fees.

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