Article 82
Print this pageEnforcement of decisions and orders
1. Decisions and orders of the Court shall be enforceable in any Contracting Member State. An order for the enforcement of a decision shall be appended to the decision by the Court.
2. Where appropriate, the enforcement of a decision may be subject to the provision of security or an equivalent assurance to ensure compensation for any damage suffered, in particular in the case of injunctions.
3. Without prejudice to this Agreement and the Statute, enforcement procedures shall be governed by the law of the Contracting Member State where the enforcement takes place. Any decision of the Court shall be enforced under the same conditions as a decision given in the Contracting Member State where the enforcement takes place.
4. If a party does not comply with the terms of an order of the Court, that party may be sanctioned with a recurring penalty payment payable to the Court. The individual penalty shall be proportionate to the importance of the order to be enforced and shall be without prejudice to the party's right to claim damages or security.
Case Law
IPPT20240213, UPC CFI, LD The Hague, Plant-e v Arkyne
Defendant’s request for security for costs (“cautio iudicatum solvi”) rejected (Article 69(4) UPCA; Rule 158 RoP, Article 24 UPCA). [...]. UPC decisions and orders are directly enforceable in the Netherlands in accordance with Art. 82 UPCA, Art. 71d Brussels and R. 354.1 RoP. A cautio in this case is hence not justified because of the risk that a possible cost order in favour of Bioo will not be directly enforceable. This contrasts with the situation decided by the CD Munich [IPPT20231030] – [....] – on which Bioo relies. In that case the relevant claimant was domiciled outside the EU and no treaty regarding the execution of judgments was in place.
IPPT20231205, UPC CFI, LD Munich, 10x Genomics v Nanostring
Recurring penalty payments not subject to enforcement requirements under national law nor notification by the claimant (Article 82(4) UPCA, Rule 118(8) RoP, Rule 354 RoP). Non-compliance with the terms of a UPC order (article 62 UPCA) is sanctioned with a penalty payment on the basis of article 82(4) UPCA alone and not subject to further enforcement requirements existing under national enforcement laws of contracting member states. (see also Local Division Düsseldorf, IPPT20231018, myStromer v Revolt Zycling). Rule 118(8) RoP – “orders shall be enforceable only after the claimant has notified the Court which part of the orders he intends to enforce” – does not apply to orders under Article 62 UPCA (provisional and protective measures). According to its clear wording ("The orders referred to in paragraphs 1 and 2(a)..."), Rule 118.8 of the Rules of Procedure does not apply to orders under Art. 62 UPCA. Dual purpose penalty payment: (a) to reliably deter the debtor from future infringements and violations (coercive function) and (b) also a penalty-like sanction for the violation of the court prohibition, which is why the imposition of a penalty payment also requires fault on the part of the debtor as an unwritten element of the offence. (see also Local Division Düsseldorf, IPPT20231018, myStromer v Revolt Zycling). € 100.000 penalty payment for which the defendants are jointly liable. Each of the defendants is individually obliged to pay the penalty payment imposed; the payment is deemed to have been settled for all defendants as soon as the total amount has been received by the Unified Patent Court.
IPPT20231018, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling
Recurring penalty payments are imposed on the basis of article 82(4) UPCA and not governed by provisions of national enforcement law (Article 82(4) UPCA, Rule 354 RoP). Provision of article 82(3) UPCA is superseded by Art. 82 (4) UPCA in conjunction with R. 354.3 and .354.3 RoP. € 26.500 awarded in recurring penalty payment to the UPC because of non-compliance with ex parte provisional injunction (article 82(4) UPCA). If a court order is not complied with by one of the parties, the UPC may – either at the request of the other party or ex officio – decide on the imposition of the periodic penalty payments provided for in the order. The decisive criterion for determining the amount of the penalty payment is the significance of the order and thus ultimately the interest of the creditor in enforcing it, which may consist, for example, in distributing the patented products. The recurring penalty payment has a dual purpose: primarily a punitive function as well as a penalty for violation of the court order. It presupposes fault on the part of the debtor. The dual purpose requires that primarily the debtor and his conduct is considered. In particular, the type, scope and duration of the infringement, the degree of fault, the infringer's advantage from the infringing act and the harms of the committed and possible future infringing acts for the infringed party must be taken into account. The debtor's past conduct is a decisive, although not necessarily the sole, indicator for the amount of the penalty payment to be imposed. The more frequently and intensively the debtor has violated the restraining order imposed on him, the more clearly he has expressed his unwillingness to comply with the restraining order. The assessment of the penalty payment must take this into account: If the debtor has already violated the cease-and-desist order several times in the past, the necessary pressure increases in order to force him to comply with the order in the future. Therefore, the respective penalty payment must be correspondingly higher. If, on the other hand, the debtor has made a serious effort to comply with the injunction, this must be taken into account in his favour.
