Article 37
Print this pageDecision by default
1. At the request of a party to an action, a decision by default may be given in accordance with the Rules of Procedure, where the other party, after having been served with a document instituting proceedings or with an equivalent document, fails to file written submissions in defence or fails to appear at the oral hearing. An objection may be lodged against that decision within one month of it being notified to the party against which the default decision has been given.
2. The objection shall not have the effect of staying enforcement of the decision by default unless the Court decides otherwise.
Case law
IPPT20241011, UPC CFI, LD Munich, i-mop v Arcora
Default judgment, including injunction and provisional damages (Article 37 UPC Statute, R. 355 RoP). Express provision in Article 37(1) of the UPC Statute that failing to file written submissions in defence after having been served with a do
Court of Appeal
IPPT20240927, UPC CoA, Volkswagen v NST
Information meant in R. 158.4 RoP – that if the party fails to provide adequate security within the time stated, a decision by default may be given in accordance with Rule 355 – does not necessarily have to be given in the Order to provide security for costs. In its Statement of appeal and grounds of appeal, Volkswagen had not requested that this information be included in the Order itself either. The Court thus does not see the necessity for rectification of the Order (R. 353 RoP). It therefore suffices that the information as meant in R.158.4 RoP is provided to NST by this separate order.
Court of First instance
IPPT20250109, UPC CFI, LD Munich, air up v Guangzhou Aiyun
Provisional measures ordered - decision by default (R. 211 RoP, R. 355 RoP, Article 37 Statute). The application was served to the defendant in accordance with Rule 275.2 RoP (App_64018/2024). Within the letter of service, defendant was informed that a decision by default may be issued, if within the time limit foreseen by the Court defendant fails to take a step. Defendant did not respond.
IPPT20241011, UPC CFI, LD Munich, i-mop v Arcora
Default judgment, including injunction and provisional damages (Article 37 UPC Statute, R. 355 RoP). Express provision in Article 37(1) of the UPC Statute that failing to file written submissions in defence after having been served with a document instituting proceedings is sufficient. Not necessary that this express provision is also present in the Rules of Procedure. The UPC Statute takes precedence over the Rules of Procedure.
IPPT20240221, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Claimants’ requests for a decision by default against the defendants in the main proceedings pursuant to Rule 355 (1)(a), 277 RoP and for a rejection of the Counterclaims for revocation is rejected. Time limits for filing the Statement of defence and the Counterclaim for revocation extended to 7 February 2024, as it was not possible to upload the Counterclaim for revocation on 6 February 2024 for internal technical reasons (Rule 9(3) RoP, Rule 25(1) RoP). Although the Statement of defence shall include a Counterclaim for revocation, the parties shall make use of the official forms available online (Rule 4(1) RoP). In practice, this means that the Counterclaim for revocation must also be filed in the workflow provided for this purpose by the CMS. Only when this requirement has been met is the Counterclaim for revocation properly filed. Where the defendant has filed a Statement of defence in due time in accordance with the requirements of Rule 25.1 RoP, the time limit for filing the Counterclaim for revocation in the dedicated workflow of the CMS may be extended retrospectively upon request (Rule 9.3 (a) RoP) and subject to the following conditions: Firstly, the defendant must have already made a first attempt to file the Counterclaim for revocation in due time in the workflow provided for this purpose before the expiry of the time limit. Secondly, the defendant must have uploaded the Counterclaim for revocation to the correct workflow without culpable delay after the expiry of the deadline.
IPPT20240226, UPC CoA, Nanostring v 10x Genomics II
A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). Formal requirements shall be examined by the Registry as soon as possible (Rule 208(1) RoP, Rule 16(2) RoP). If deficiencies are not corrected within 14 days a decision by default may be issued (Rule 16(5) RoP, Rule 355(1)(a) RoP).cument instituting proceedings is sufficient. Not necessary that this express provision is also present in the Rules of Procedure. The UPC Statute takes precedence over the Rules of Procedure.