Article 74

Effects of an appeal

1.   An appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Rules of Procedure shall guarantee that such a decision is taken without delay.

2.   Notwithstanding paragraph 1, an appeal against a decision on actions or counterclaims for revocation and on actions based on Article 32(1)(i) shall always have suspensive effect.

3.   An appeal against an order referred to in Articles 49(5), 59 to 62 and 67 shall not prevent the continuation of the main proceedings. However, the Court of First Instance shall not give a decision in the main proceedings before the decision of the Court of Appeal concerning an appealed order has been given.

Case Law:

Court of Appeal

IPPT20240819, UPC CoA, Sibio v Abbott
Manifestly erroneous that Ireland is a Contracting Member State of the UPC (Article 84.2 UPCA) and  thus cannot be considered to be covered by Abbott’s request for a preliminary injunction. The Court of First Instance therefore awarded more than was requested for, which is contrary to Art. 76 UPCA. Suspensive effect granted insofar as the impugned order extends to the territory of Ireland. Application for suspensive effect admissible (Rule 223 RoP, Article 74 UPCA). Not a requirement that a request for suspensive effect is lodged in a separate workflow in the Court’s case management system

IPPT20240726, UPC CoA, OrthoApnea
Request for suspensive effect of appeal, regarding a decision not to extend a time period and to allow amendment of infringement claim with equivalency, admissible but unfounded (Art. 74(1) UPCA, Rule 223 RoP, Rule 263 RoP). Parties submit their statements in the written procedure without knowing how their allegations will be assessed by the Court of First Instance or the Court of Appeal. That entails the risk that part of their allegations will not be relevant for the outcome of the case.

IPPT20240621, UPC CoA, Mala v Nokia
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.

IPPT20240619, UPC CoA, ICPillar v ARM
No suspensive effect given to appeal from order to provide security (Rule 220 and 223 RoP, Article 74 UPCA) and request to expedite appeal rejected (Rule 9(3) RoP). Granting suspensive effect to an order pursuant to R.220.2 RoP, is possible under Article 74 UPCA notwithstanding R.223.5 RoP. Suspensive effect only to be given under exceptional circumstances. An example of such exceptional circumstances would be where the appeal is devoid of purpose or would render the appeal largely ineffective if the impugned order were not given suspensive effect, because the consequences of enforcement of the impugned cannot be effectively reversed if the order is later set aside (see UPC_CoA_407/2023, order of 6 November 2023; UPC_CoA_177/2024, order of 2 May 2024). Other exceptional circumstances that could justify suspensive effect would be where the impugned order is manifestly wrong (See UPC_CoA_2/2024, order of 18 January 2024). No suspensive effect given to appeal from order to provide security for costs. ICPillar not unable to comply with the order, nor would it lead to extreme detriment if it complies. 

IPPT20240502, UPC CoA, PMA v AWM
Suspensive effect given to appeal of restitution order (that that shall take place from 5 June 2024) to ensure that there is time to decide on the appeal before the impugned order is enforced (Article 74 UPCA). No decision on the costs since this order is not a final order or decision concluding an action (Rule 242.1 RoP).

IPPT20240118, UPC CoA, Meril v Edwards Lifesciences
Application to order suspensive effect to appeal of order to bear the (to be assessed) costs of the proceedings up to a maximum of € 200.000 dismissed (article 74 UPCA, Rule 223 (1) RoP). Admissible application: A decision under Rule 360 RoP by which the court has dismissed an action because there is no need to adjudicate on the merits and includes the decision on the costs of the proceedings is to be be regarded as a final decision within the meaning of Rule 220.1(a) RoP and not as a decision within the meaning of Rule 223.5 RoP. Application unfounded: Interest of the plaintiff regarding further costs for cost assessment procedure does not generally outweigh the interest of the successful party within the meaning of Rule 151 RoP in a quick decision on the costs of the proceedings. Suspensive effect also not justified because if there are errors in the appealed order, they are in any case not errors that led to a manifestly erroneous order.

IPPT20231106, UPC CoA, Ocado
Appeal from the order to grant a third party access to documents (Rule 262 RoP) shall have suspensive effect, to ensure that there is time to adjudicate Ocado’s appeal on the merits from the Order to grant a third party access to documents, which will be enforceable on 7 November 2023 and would make the appeal devoid of purpose. (Article 74 UPCA, Rule 223 RoP, Rule 262 RoP) Application ex officio handled as having extreme urgency by the standing judge (Rule 223(4) RoP).

Court of First Instance

IPPT20240408, UPC CFI, LD Milan, PMA v AWM
No access to written report and any other outcome of the measures to inspect premises and to preserve evidence and revocation of the measures to preserve evidence because applicant did not timely start proceedings on the merits (Article 60(9) UPCA, Rule 198 RoP, Rule 9(4) RoP). Restitution of all evidence gathered through the execution of the revoked measures is to take place from 05.06.2024 on, unless the Court of Appeal decides otherwise (Article 74 UPCA, Rule 223 RoP). It is quite clear that an appeal could not be effective if this Court’s order for the return of the evidence gathered were given immediate effect.