UPC Local Division Munich, 19 December 2023: Gap in Rules of Procedure on settlement of preliminary measures

Settlement of application for preliminary measures because of declaration and undertaking of discontinuance by the defendant. Gap in the Rules of Procedure.

The provision of Rule 360 RoP (settlement of the main proceedings) applies mutatis mutandis to applications for interim measures. 

There is an unintended regulatory gap in this respect; the consequences of the settlement of proceedings concerning the adoption of interim measures are not expressly regulated in the Rules of Procedure. 

Under the circumstances it is equitable to order the defendant to pay the entire costs, irrespective of the prospect of success of the application for interim measures (Article 69 UPCA; Rule 118.5 RoP). 

Irrespective of the question of whether the applicant's request was fully admissible and justified at the time of the final event, the defendants could have submitted the declaration and undertaking of discontinuance in a much more cost-saving manner and have caused the applicant unnecessary costs in the form of the costs of the legal dispute and the applicant's other costs. 

Only obligation to reimburse costs can at present be determined, any further claims dismissed as currently premature. 

A specific amount to be reimbursed has not yet been named and it has not been submitted that the costs incurred by the applicant will certainly exceed the upper limit of reimbursable costs of € 200.000, only the obligation to reimburse can be determined on the merits at present. Any further claims must therefore be dismissed as currently premature (Rule 118.5 RoP; Rule 151 RoP).

IPPT20231219, UPC CFI, LD Munich, Edwards Lifesciences v Meril