UPC CFI LD Mannheim, 8 December 2023, Alternative method of service requires an unsuccesfull attempt
13-02-2024 Print this page
Alternative method of service of Statement of claim (Rule 275 RoP).
Contrary to the opinion of the Munich Local Court, Rule 275.2 RoP cannot be interpreted in principle as permitting service without first having attempted service in accordance with the provisions applicable to service abroad.
Form the Order
"2. insofar as service outside the contracting states of the UPCA is concerned, the rules correctly refer to the provisions that apply to service within the European Union and between states that are parties to the Hague Service Convention, in accordance with international and EU law.
a) In the present case, the attempt at service pursuant to Rule 274(a)(ii) of the Brussels Convention must be made in accordance with the Hague Service Convention (HCCH), as the People's Republic of China and Hong Kong do not fall within the scope of Regulation (EU) 2020/1784 but are parties to the HCCH.
b) Such an attempt at service has not yet taken place. On the contrary, the office of the local chamber has so far requested the documents required for service, in particular translations, from the plaintiff. However, these have not yet been submitted by the plaintiff to effect service abroad.
c) Contrary to the opinion of the Munich Local Court, Rule 275.2 VerfO cannot be interpreted in principle as permitting service without first having attempted service in accordance with the provisions applicable to service abroad. As the defendants rightly argue, this rule is rather an exceptional provision. Only if service was attempted in accordance with sections 1 and 2 but was unsuccessful and alternative service was then ordered on request in accordance with Rule 275.1 of the Rules of Procedure does this rule apply. If the alternative service ordered in this way was also unsuccessful, it then opens up the possibility, as a last resort in individual cases, of allowing steps already taken to suffice for service. However, the rule does not make it possible to disregard the international treaties binding the member states of the UPCA, such as the Hague Service Convention, and to consider service to have been effected on the basis of an imputation of knowledge within the corporate group. Formal service on the defendant is an internationally recognised principle and not a superfluous formality. The purpose of service is to give the addressee the opportunity to take note of the document of the statement of claim and to prepare his legal defence.
This already necessarily follows from Art. 24(1)(d) UPCA, according to which the international agreements binding the contracting member states are equally binding on the UPC. The Contracting Member States could and wanted to transfer the power to decide patent disputes to the UPC as a common court of the Member States (Art 1(2) UPCA) only to the extent permitted by the international treaty obligations entered into and Union law. If the overriding provisions of the EU Service Regulation and the Hague Service Convention were to be overridden via Rule 275.2 CRP, this would constitute a violation of Union and international law. Neither Regulation (EU) 2020/1784 nor the Hague Service Convention permit the imputation of knowledge advocated by the plaintiffs as a substitute for formal service."
