Rule 245 – Lodging of an Application for rehearing

1. An Application for rehearing may be lodged by any party adversely affected by a final decision (hereinafter "the final decision") of the Court of First Instance for which the time for lodging an appeal has expired or of the Court of Appeal (hereinafter "the petitioner").

2. The Application for rehearing shall be lodged at the Court of Appeal within the following periods:

(a) where the Application for rehearing is based on the ground of a fundamental procedural defect, within two months of the discovery of the fundamental defect or of service of the final decision, whichever is the later;

(b) where the Application for rehearing is based on an act which has been held, by a final court decision, to constitute a criminal offence, within two months of the date on which the criminal offence has been so held or service of the final decision, whichever is the later;

(c) but in any event no later than ten years of service of the final decision.

Relation with Agreement: Article 81

Case Law

Court of Appeal

IPPT20260224, UPC CoA, Suinno v Microsoft
Application for rehearing rejected (Article 81(1) UPCA; R. 245 RoP). Only fundamental procedural defects can be the basis for a rehearing. What Suinno has brought forward in its Applications is not sufficient to conclude that the Court of Appeal made an error, let alone one that must be considered a flaw of such a serious nature that it would constitute a fundamental error without which the same decision or order would not have been taken. According to R. 248.1 RoP, an Application for rehearing based on the ground of a fundamental procedural defect is only admissible where an objection in respect of the procedural defect was raised during the proceedings before the Court of First Instance or the Court of Appeal and dismissed by the Court, except where such objection could not have been raised during the proceedings before the Court of First Instance or the Court of Appeal. Non-compliance with order to pay security must lead to default judgment (R. 158.5 RoP). It is only under exceptional circumstances that the Court may derogate from this general rule. 

IPPT20250619, UPC CoA, Alexion v Amgen
Application for rehearing (R. 245 RoP, Article 81 UPCA)) rejected as not allowable. The legislator has explicitly chosen that decisions by the Court of Appeal are to be final. The literal wording of Art. 81(1) UPCA makes clear that a rehearing may exceptionally be granted only if the decision suffers from one of these serious deficiencies. A rehearing is thus not a regular appeal proceeding, but an extraordinary legal remedy. Only fundamental procedural defects can be the basis for a rehearing. Mere errors of any kind cannot be a ground for an application for rehearing. A defect may only be considered fundamental if it can be established that without the defect the same decision would not have been taken. The Court must consider all arguments brought forward by the parties, but it is, however, not required to explicitly and exhaustively address in its order or decision each and every argument advanced by a party in detail in the order or decision.