UPC CFI, CD Milan, 4 December 2025 : Competence of the UPC at first instance for the determination and enforcement of penalty extends to the enforcement of decisions issued by the CoA at second instance.
13-03-2026 Print this page
Follows from Order of 22 July 2025 by CFI CD containing enforceable penalty provisions, following an Order on injunctive relief issued by the Court of Appeal’s Order dated 30 April 2025.
Order for the payment of penalty of EUR 150,000 for EoFlow’s non-compliance with obligations. (Article 62 UPCA, Article 82.4 UPCA, Rule 354 RoP)
It is highly unlikely that the parties altered their usual modus operandi as shipment/payment activity corresponds to what was already presented during the injunction phase. It is likely that Menarini and EOFLOW simply continued their previous import-export business despite the injunction.
The causal link between behaviour and event must be measured on the principle of ‘more likely than not’.
UPC CFI CD Milan has jurisdiction for the determination of penalty payments for enforcement under Rule 354 RoP.
A penalty order issued under Art. 82.4 UPCA, or a preliminary injunction issued under Art. 62 UPCA, may be enforced by the UPC itself. Preliminary injunctions are also court orders within the meaning of Article 82 UPCA.
Determination of penalty […] lies with the competence of the relevant division of the UPC at first instance. This jurisdiction extends to the enforcement of decisions issued by the Court of Appeal at second instance.
The order of 22 July by the CD Milan cannot be applied retrospectively to the COA decision of 30 April. Penalty assessed solely on the basis of order of 30 April.
Only judgments that are purely interpretative of (already) established legal provisions may be applied retroactively. The detailed prohibitions set out in CD Milan’s decision, namely the penalties applicable to each item imported in violation of the order, cannot be applied retrospectively to the CoA’s order, even by way of interpretation, since the party affected by the injunction is bound solely ratione temporis by the order in force at that very moment and by the terms as specified therein.
The CoA’s order dated 30 April 2025 is sufficiently clear and enforceable under R. 354 RoP.
The imposed “periodic penalty payments of up to EUR 250,000 for each individual infringement satisfy the requirements of R. 354.3 RoP by clearly identifying both (i) the triggering event - the circumstance upon which a specified penalty sum may be forfeited, and (ii) the amount of the penalty which may be forfeited.
Accordingly, there is no lacuna that would require the Court of Appeal to issue any, more precise, further penalty order.
The Court interprets the prescription in the order as referring to the type of violation established, i.e. the import or export of infringing goods, rather than to each individual product that was illegally exported. An interpretation applying a penalty of €250,000 for each individual act of importation or trade would be completely out of step with the market for the product and the market size of the parties involved.
If there is any uncertainty regarding the interpretation of the prescription of the CoA, the construction that is most favourable to the infringer must be adopted (in dubio pro reo).
The purpose of R. 354.4 RoP is to enable the effective enforcement of injunctions. It ensures that the Court retains the flexibility to tailor penalties to the seriousness, duration and wilfulness of the infringement.
The amount of penalty set by the Court of Appeal is not merely indicative. Were that interpretation correct, the Court of Appeal would have issued an order devoid of practical effect and therefore unenforceable, which would run counter to the very purpose of the order issued.
