UPC COA, 28 November 2025 , Provisional measures, competence of court and more
21-01-2026 Print this page
Application for interim measures (R. 206 RoP) .
R. 19.5 RoP shall apply mutatis mutandis to proceedings for provisional measures. A referral to the competent division is therefore also possible in such proceedings (Rule. 19.5 RoP)
Competence of the divisions of the Court of First Instance is a UPC internal matter (Article 33 UPCA).
If the division seised considers that a defence raised on the competence of the local division is well-founded and the applicant for provisional measures indicated another division that is competent, it shall refer the application to that division. Absent a request to refer the application for provisional measures to a competent division, the division seised must dismiss the application and order the applicant to pay the costs.
Carrying out test purchases in a CMS where a patent is protected, does not amount to “competence manipulation”.
There is no hierarchy between competence based on the place where the actual or threatened infringement has occurred or may occur in Art. 33(1)(a) UPCA, and competence based on the residence or principal place of business of the defendant in Art. 33(1)(b) UPCA. It follows that it is for the applicant to decide on whom to bring proceedings against.
To determine competence under Art. 33(1)(a) UPCA, the existence of infringing activities, for example an offer or the possibility to obtain the allegedly infringing devices through a website accessible in the Contracting Member State hosting the local division, needs to be established. There is no need to look for connecting factors in the territory of the local division seised in relation to each defendant to establish competence.
Place of infringement (Article 33(1)(a) UPCA, Article 7(2) Brussels Regulation)
The place “where the actual or threatened infringement has occurred or may occur” as referred to in Art. 33(1)(a) UPCA must be interpreted in the same way as the place “where the harmful event occurred or may occur” of Art. 7(2) of the Brussels I Recast Regulation is interpreted in relation to alleged patent infringements, because the provisions have a similar purpose.
This does not mean that the UPC has incorporated the substance of Art. 7(2) Brussels I Recast Regulation and its body of case law into Art. 33(1)(a) UPCA. Neither does it mean that competence of the divisions of the Court of First Instance is governed by EU law pertaining to the Brussels I Recast Regulation.
Order on the application for provisional measures (Rule 211 RoP)
No undue delay justified by potential changes of products on the market. Interim award for costs (Rule 150.RoP) .
An interim award of costs may also be ordered in favour of the defendant in proceedings for provisional measures. The fact that R. 211.1(d) RoP, unlike R. 150.2 RoP, does not expressly provide for interim award of costs to the successful party does not preclude this.
The same rules apply in proceedings for interim measures as in the main proceedings. An interim award of costs up to the applicable ceiling for cost compensation makes the procedure for cost decision pursuant to R. 150 et seq RoP redundant.
The Scale of ceilings for recoverable costs only applies to representation costs , there can be additional costs in the form of recovery of court fees, costs of witnesses, costs of experts, and other expenses ( R. 151(d) RoP).
