Rule 21 – Appeal against decision or order on a Preliminary objection

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1. A decision of the judge-rapporteur allowing the Preliminary objection may be appealed pursuant to Rule 220.1(a). An order of the judge-rapporteur rejecting the Preliminary objection may only be appealed pursuant to Rule 220.2.

2. If an appeal is lodged, proceedings at first instance may be stayed by the judge-rapporteur or the Court of Appeal on a reasoned request by a party.


Case Law:


Court of Appeal


IPPT20240621, UPC CoA, Mala v Nokia
Reasoned request to stay proceedings must be in statement of appeal and lack thereof cannot be remedied at the interim conference (Rule 21.2 RoP). As a general rule, the main proceedings are not stayed pending an appeal because of the principle that proceedings before the Court of First Instance must as far as possible continue unhindered by any (procedural) appeals (Rule 223 RoP, Article 74 UPCA). A stay may be granted under exceptional circumstances, having regard to the relevant circumstances of the case, such as the stage of the revocation proceedings before the Court of First Instance, the stage of the appeal proceedings and the interests of the parties or if the impugned order were manifestly erroneous.


IPPT20240403, UPC CoA, Juul Labs v NJOY Netherlands

Appeal and the appellant’s request to set aside the orders of the Court of First Instance to rectify the name of the defendant (“Juul Labs, Inc”) to read “Juul Labs International, Inc.” rejected [Rule 9 RoP]. Direct appeal of order of judge-rapporteur admissible as explicitly provided for in Rule 21(1) RoP, no prior review by the panel required in this particular case. 


IPPT20240321, UPC CoA, Netgear v Huawei
 If a Preliminary objection is rejected, as an exception to the general principle, leave to appeal may be given by the judge-rapporteur without prior panel review under Rule 333(1) RoP being required (Rule 21(1) RoP). If leave is granted, the unsuccessful party thus has the choice to either file an appeal or an application for review under R.333.1 RoP. If the judge-rapporteur did not grant leave to appeal, a party may apply for a panel review. The resulting panel decision may then subsequently be appealed if leave has been granted by the panel under R.220.2 RoP, or it may be subject to discretionary review under R.220.3 RoP. An Application under Rule 333(1) RoP in the event of a Rule 20(2) RoP notification is not inadmissible due to a lack of a justified interest. 


Court of First Instance


IPPT20240125, UPC CFI, LD Hamburg, Fives v Reel
A decision by the judge-rapporteur granting a preliminary objection that the UPC lacks competence cannot be reviewed by the full panel on the basis of Rule 333 RoP, but may be appealed to the Court of Appeal as a final decision of the Court of First Instance (Rule 21.1 RoP, Rule 220(1)(a) RoP