UPC CFI LD The Hague, 13 February 2024: no security for costs regarding EU claimant

25-02-2024 Print this page
IPPT20240213, UPC CFI, LD The Hague, Plant-e v Arkyne

Defendant’s request for security for costs (“cautio iudicatum solvi”) rejected (Article 69(4) UPCA; Rule 158 RoP, Article 24 UPCA). 


Protecting the rights of the defendant should be balanced against the right of the claimant to enforce its patent rights. 


The main rationale for the cautio is to secure the enforceability of a potential cost order. If such order is directly enforceable after it is granted, it can serve as grounds not to allow a cautio at the start of or during the proceedings. UPC decisions and orders are directly enforceable in the Netherlands in accordance with Art. 82 UPCA, Art. 71d Brussels and R. 354.1 RoP


A cautio in this case is hence not justified because of the risk that a possible cost order in favour of Bioo will not be directly enforceable. 


This contrasts with the situation decided by the CD Munich [IPPT20231030]  – [....] – on which Bioo relies. In that case the relevant claimant was domiciled outside the EU and no treaty regarding the execution of judgments was in place. 


As a rule, the court finds that a cautio based solely on (expected) material unenforceability should be awarded in exceptional circumstances only. 

The court agrees that under the circumstances in the present situation, which involves two competing SMEs with limited finances, the financial strain on the claimant can be a serious impediment to enforcement of its rights and to access to justice, and hence for granting a cautio. 


Lastly the court takes into consideration that according to Dutch national procedural law it is not possible to give a cautio vis-a-vis plaintiffs domiciled or residing in the Netherlands (and hence in the EU) under any circumstances, and also if there is good reason to doubt the possibility of recovery of a potential cost order due to the financial situation of the claimant.


IPPT20240213, UPC CFI, LD The Hague, Plant-e v Arkyne