UPC CoA, 30 May 2025: About requirements for penalties being payable and time period for communicating information
12-08-2025 Print this page
A party is adversely affected and allowed to appeal if a request is not fully granted (R. 220.1 RoP).
Only the grant of suspensive effect by the Court of Appeal, rather than the mere filing of an application, suspends the enforceability of the decision (Article 74(1) UPCA, R. 223 RoP)
Recurring penalty payment (Article 82.4 UPCA, R. 354.4 RoP). The principle of nulla poena sine culpa means that a penalty sum shall only be imposed when the defendant's fault can be established. Maximum penalty amount payable must be defined in the order providing for a penalty. The appropriate amount of the penalty payment can only be reliably determined once the nature and extent of the breach of the order have been established. The fact that only a maximum penalty payment for each day of non-compliance (up to € 50.000) was provided – rather a specific amount – does not give rise to concerns. The amount of the penalty payment (later) to be imposed does not solely depend on the importance of the order that is reinforced with a penalty. After a breach has occurred, the Court must, in exercising its discretion, determine the amount of the penalty payment in a manner that is adapted to the circumstances and proportionate to the breach of the order. Relevant factors in this regard include, among others, aspects such as the severity of the established breach, its duration, and the defendant's ability to pay.
Time period for communication of information (Article 67 UPCA): Must be determined in the decision on the merits. Must be reasonable, taking into account the specific circumstances of the individual case. In determining the length of this period, particular consideration must be given, amongst other, to the scope of the information required to be provided, the time period to which the disclosure relates, and the resources available to the obliged party. Begins upon notification pursuant to R. 118.8, first sentence, RoP – must be included in the claimant’s corresponding application. If, as in the present case, no time period is specified in the final decision, it is the responsibility of the claimant to set a time period for the provision of information when notifying the defendant of the intention to enforce the decision. Failure to submit the information in electronic form does not per se constitute violation of an order under Article 67 UPCA.
