On 2 May 2024, the Court of Appeal heard its first case in relation to a stay application pursuant to Rule 295(a) RoP (APL_3507/2024; UPC_CoA_22/2024).  In this matter, the appellant, Carrier Corporation, was represented by Dehns.

Our commentary on the principles for granting stay applications is here.

In this Order, the Court also responded to arguments regarding composition of the Court of Appeal.  This is the first time the Court of Appeal has heard arguments on the matter since the Court of Appeal Order of 10 April 2024.



The claimant/respondent, Bitzer Electronics, initiated a revocation action (UPC_CFI_263/2023) against the defendant/appellant, Carrier Corporation, at a similar time as filing a parallel opposition at the EPO.  The defendant/appellant, represented by Dehns, applied for a stay of proceedings.

Following rejection of the stay application, the defendant/appellant filed an appeal.

Following the earlier CoA decision of 10 April 2024 (UPC_CoA_404/2023), the appellant/defendant filed comments on 19 April 2024 relating to the composition of the panel of the Court of Appeal in its own appeal.  The appellant/defendant requested that two technically-qualified judges be appointed to the panel or, if the Court was unwilling to do so, that the question be referred to the CJEU.


Same as it ever was

At paragraph 16, the Court refers to a raft of previous UPC case law, including the decision of 10 April 2024.  The Court states that, in line with this case law, if there are no technical issues at stake then the appeal can be adjudicated by a panel of three legally-qualified judges only.

The Court goes on to state that the issues of the appeal at hand relate to opposition proceedings and their duration, which are not technical in nature.

The Court also dismisses the defendant/appellant’s request to refer to the CJEU the question of whether the Court of Appeal can determine its own composition.  In its judgement, the Court takes the view that the defendant/appellant did not raise any question concerning the interpretation of EU treaties or acts by its institutions that the Court deems relevant in deciding the case at hand.


Same as it ever was

As I stated in my commentary on the decision of 10 April 2024, it appears incorrect to me for the Court to follow the letter of the law when determining which documents in the written proceedings are defined as pleadings and evidence, only to ignore it entirely when it comes to composition of a Court of Appeal panel.  Even if a panel composition of three judges is more convenient and efficient for the Court, that is not sufficient reasoning to disregard the wording of Article 9.1 UPCA.

With this order, the Court of Appeal has done nothing to change my mind.

What I do note that is different here is that the panel issuing this order is different from the one of the 10 April order.  That means that the two Court of Appeal panels are united in their view.

By stating that no question was raised in respect of EU treaties or acts by its institutions, the Court reminds us that, although the UPC is a court within the EU, the UPCA and RoP are not EU treaties and the UPC itself is not an EU institution.  It would then seem that the Court will avoid referring questions to the CJEU under Article 21 UPCA unless they specifically relate to application of Union law or acts of EU institutions.  The question of whether the CJEU would be willing to decide on how the UPC conducts itself is open.

So, without a Damascene conversion, only a decision from the CJEU would shift the Court’s position.  The question then is whether anyone is willing and able to take it that far.