1. Key takeaways
An application for security for costs may be filed after the summon for oral hearing has been issued
An application for a security for costs may be filed at any time during proceedings (R. 158.1 RoP first sentence) and may equally be filed in first instance and appeal proceedings (UPC_CoA_328/2024, Order of 26 August 2024, Ballinno BV v. Kinexon, para 25 ff). If required, subject to the circumstances of the case and substantiated by compelling reasons, such an application may be filed after the summon for oral hearing has been issued. lt shall nevertheless be requested before an award oncosts has been decided by the Court pursuant to R. 150 RoP since the main purpose of a security for costs in the UPC system is to protect a party from a future risk of not being able to recover its legal costs that the other party may, pursuant to R. 158.1 RoP first sentence, be liable to bear.
That costs awarded by the CFI have not been payed by the debtor (here: Defendant) does not justify a request for security of costs in proceedings before the CoA with regard to these costs already awarded
- The fact that, following the award of costs to Claimant by the Court of First Instance, Claimant has not yet received the corresponding payment is a matter concerning enforcement of the costs decision. This does not justify a request for security for costs in proceedings before the Court of Appeal with respect to these already awarded costs
- Furthermore, ordering a security for costs against Defendant in relation to the costs incurred by Claimant in the CFI proceedings would, unlike the costs incurred in the appeal initiated by Defendant, lead to providing a security for costs against the defendant in an infringement action, which is contrary to the position of the CoA (CoA, order of June 20, 2025, AorticLab srl v Emboline, Inc., UPC_CoA_393/2025).
2. Division
Court of Appeal Luxembourg
(following a decision on costs before CFI LD Milan)
3. UPC number
UPC_CoA_8/2025
4. Type of proceedings
Appeal Proceedings; Application for security for costs
5. Parties
Claimant in CFI proceedings and Respondent before the CoA: Oerlikon Textile GmbH & Co KG
Defendant in CFI proceedings and Applicant before the CoA: Bhagat Textile Engineers
6. Patent(s)
EP 2 145 848
7. Jurisdictions
UPCA
8. Body of legislation / Rules
R. 158,1 RoP, R. 150 RoP
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
