€ 75.000 security for costs against Chinese domiciled applicant.
Even if the party is solvent, enforcement difficulties alone justify security.
An order for security for costs can only be made against applicants, not in their favour (Article 69(4) UPCA).
An ‘applicant’ is the party who initiates legal proceedings by filing an application.
This means that, at first instance, an application by the claimant for an order to provide security for costs is not admissible. Nor does the infringement claimant’s right to make such an application arise from the fact that the defendant has brought a counterclaim for annulment. Such a counterclaim for annulment is a direct consequence of the infringement action brought by the claimant. An order requiring the defendant and counter-claimant to provide security for costs would unduly impair the defendant’s ability to defend himself.
The party entitled to make an application under Art. 69(4) UPCA in the appeal proceedings is the respondent. This generally also applies where the respondent on appeal is the claimant.
If both parties lodge an appeal, each party may only require security for costs in respect of the other party’s appeal costs. This also applies in the case of a cross-appeal.
An exception applies where the defendant in the appeal proceedings rightly asserts a manifest error in the first-instance decision. In such cases, only the defendant may require security for costs for the appeal proceedings.
