Article 75

Decision on appeal and referral back

1.   If an appeal pursuant to Article 73 is well-founded, the Court of Appeal shall revoke the decision of the Court of First Instance and give a final decision. The Court of Appeal may in exceptional cases and in accordance with the Rules of Procedure refer the case back to the Court of First Instance for decision.

2.   Where a case is referred back to the Court of First Instance pursuant to paragraph 1, the Court of First Instance shall be bound by the decision of the Court of Appeal on points of law.

Case law

Court of Appeal

IPPT20260217, UPC CoA, Rematec v Europe Forestry
Revocation decision set aside (Article 65 UPCA), infringement found in appeal (Article 25 UPCA). Final decision in appeal (Article 75 UPCA, R. 242.2(b) RoP). The Court of Appeal, must, in order to issue a final decision, as a rule decide not only on the counterclaim for revocation but also render a final decision on the infringement action. That the Court of First Instance failed to decide an issue which it is necessary for the Court of Appeal to decide on appeal does not normally constitute an exceptional circumstance justifying a referral back. 

IPPT20250712, UPC CoA, Microsoft v Suinno
Impugned order revoked and decision by default dismissing the infringement action given against Suinno for failure to provide security for costs (R. 355.2 RoP, R. 158.5 RoP).

IPPT20250214, UPC CoA, Abbott v Sibio
Impugned order revoked (Article 75 UPCA) – provisional measures granted (Article 62 UPCA). 

IPPT20241210, UPC CoA, NanoString v 10x Genomics
As a general rule revocation in appeal affects penalty payments. Revocation in appeal of a first instance provisional injunction has, as a general rule, retroactive effect (Article 75(1) UPCA, R. 242.1 RoP, Article 3 Enforcement Directive). The order is revoked because it has been established by a final judgment of the Court of Appeal that the order should not have been made. A revoked order must therefore be regarded as never having had any legal effect. It follows that the revocation of an order granting a provisional injunction prohibiting the continuation of infringements subject to a recurring penalty removes the legal basis for any subsequent decision ordering the payment of a penalty, even if that decision relates to alleged breaches of the provisional injunction prior to the revocation.