Herbert Smith Freehills Kramer Knowledge Counsel Rachel Montagnon has written an article on the UPC Appeal Court Rules on Costs and CJEU Referrals.
The UPC Court of Appeal (CoA) has clarified when legal questions may be referred to the Court of Justice of the European Union (CJEU). In a recent case, the CoA rejected an appeal by expert e-Commerce GmbH and expert klein GmbH (collectively “expert”) over a denied costs application. The original application was dismissed for being filed too late under Rule 151 of the UPC Rules of Procedure (RoP).
Expert also requested a referral to the CJEU to interpret the RoP and the UPC Agreement (UPCA). The CoA declined, stating that the CJEU has no jurisdiction over the RoP or UPCA, which are not EU law but international law. The court found no reasonable doubt regarding EU law or procedural fairness in this context.
Key Takeaways on CJEU Referrals
- The UPC must apply and interpret EU law consistently.
- If a UPC rule conflicts with directly effective EU law and cannot be interpreted in line with it, the UPC must disapply that rule.
- The UPC cannot refer questions about the UPCA or RoP to the CJEU, as these are not EU instruments.
- No referral is needed if CJEU case law already resolves the issue or if the interpretation is clear.
The CoA reaffirmed that the deadline for a costs application is one month from the date of service of the decision on the merits.
Case Background
Expert sought €111,000 in costs after the Düsseldorf Local Division invalidated Seoul Viosys’ LED patent (EP3223320) in October 2024. The costs application was filed late and deemed inadmissible. Expert appealed, arguing that time limits could be extended retroactively and that the refusal breached the Enforcement Directive.
The CoA upheld the original decision, referencing its earlier ruling in Hanshow v VusionGroup (June 2025), and confirmed that missed deadlines under Rule 151 can only be remedied via Rule 320 (re-establishment of rights).
Final Guidance
The UPC is bound by EU law like national courts. It must refer EU law questions to the CJEU only when necessary. However, it cannot seek interpretation of the UPCA or RoP, as these fall outside the scope of EU law. The CoA emphasized that only the court—not the parties—decides whether a referral is needed.
For detailed information, as well as the picture copyright, please see the law firm´s original article here: UPC Court of Appeal confirms that late-filed costs applications are inadmissible and in refusing reference to the CJEU provides guidance on what it will refer | Herbert Smith Freehills Kramer | Global law firm
