Be quick to file an application for a cost decision at the UPC - or it could be a costly mistake

🎂Short and Sweet 

The UPC Court of Appeal (CoA) has recently confirmed (UPC_CoA_380/2025 of 20 August 2025 in expert e-Commerce GmbH & expert klein GmbH ("expert") v. Seoul Viosys Co., Ltd) that failure to meet the time limit for cost applications can only be remedied through re-establishment of rights and that the one-month period for cost applications begins with service of the decision in the proceedings on the merits.   

This decision adds to a previous decision from the CoA earlier this year (UPC_CoA_618/2024 6 June 2025, Hanshow vs VusionGroup) that considered the deadline for filing an application for a cost decision after provisional measure applications. In that case, the CoA held that the one month for lodging an application for a cost decision pursuant to R. 151.1 RoP begins with the service of the decision in the proceedings on the merits, not with the service of an order on provisional measures. 

🤷‍♀️Issues considered

Issues Presented

The central legal questions before the Court of Appeal were:

1. Whether the one-month time limit in Rule 151 RoP for lodging cost applications was properly applied
2. Whether certain questions should be referred to the CJEU 
3. Whether leave to appeal should be granted against the LD's decision regarding the application for a cost decision. 

Background

Viosys brought an action against expert before the UPC's Düsseldorf Local Division (LD) for infringement of patent EP 3 223 320. Expert disputed infringement and, in addition, expert klein GmbH lodged a counterclaim for revocation of the patent at issue.

On 10 October 2024, the LD declared the patent at issue invalid and revoked it for the territory of Germany, France, Italy and the Netherlands in response to the counterclaim for revocation. The requests for amendment of the patent in suit were dismissed, the action for infringement was dismissed and Viosys was ordered to pay expert's costs.

On 12 December 2024, expert lodged an application for a cost decision for the infringement proceedings and the counterclaim for revocation. (Under Rule R.151 RoP, an application for a cost decision must be filed by a successful party “within one month of service of the decision"). 

On 14 April 2025, the LD dismissed the application as inadmissible, holding that the decision on which the application was based was uploaded in the CMS on 10 October 2024 and therefore served on expert on this date. The cost application as submitted by expert on 12 December 2024 was therefore filed too late.

Court's Reasoning

On the Time Limit Issue

The Court confirmed that where the successful party wishes to seek a cost decision, it shall within one month of service of the decision lodge an application for a cost decision. Upon expiry of the one month time limit in R. 151 RoP the substantive right of the successful party to seek a cost decision elapses.  The time limit in R. 151 RoP is not a time limit in ongoing proceedings, but a preclusive period within which proceedings can be initiated at all. 

On CJEU Referral Obligations

The Court determined that the UPC cannot ask the CJEU to interpret the UPCA. The UPCA is not a regulation, a directive, a decision, a recommendation or an opinion. It is not an act of the institutions, bodies, offices or agencies of the Union. As is clear from a reading of the case-law of the CJEU, the UPCA is an international agreement. It forms part of international law.

Similarly, the UPC cannot ask the CJEU to interpret the RoP. A request for a preliminary ruling must concern the interpretation or validity of EU law, not the interpretation of rules of national law or issues of fact raised in the main proceedings. The RoP are procedural rules that can be equated with national procedural law in this respect.

On EU Law Compatibility

The CoA applied established EU law principles regarding procedural autonomy, noting that national legal orders may establish procedural rules provided they are not less favourable than similar domestic situations (principle of equivalence) and do not make it impossible in practice or excessively difficult to exercise EU law rights (principle of effectiveness). The Court found that procedural requirements do not deny effective judicial protection unless they are so complex and onerous that they go beyond what is necessary to achieve their objective.

The Court concluded that the one-month time limit in R. 151 RoP begins with service of the decision on the merits, was set out in advance, is not complex, does not go beyond what is necessary to achieve its objective, and clearly does not disproportionately affect the party's right to effective judicial protection. Additionally, R. 320 RoP provides for re-establishment of rights.

Result

The standing judge concluded that (i) the question about R. 151 RoP raised by expert has already been resolved by the Court of Appeal (see Hanshow above), including the non-applicability of R. 9 RoP, and (ii) there is no reason to refer any questions to the CJEU for a preliminary ruling pursuant to Art. 267 TFEU.

Leave to appeal was denied. The Court of Appeal upheld the CFI's dismissal of the cost application as time-barred and rejected all requests for preliminary rulings to the CJEU.

🫵What does this mean for you? 

Don't delay filing an application for a cost decision - better too early than too late

• Once you have the decision, an application for a cost decision can be filed. 
• The one-month period for cost applications begins with service of the decision in the proceedings on the merits
• Failure to meet the time limit for cost applications can only be remedied through re-establishment of rights pursuant to R. 320 RoP.  To succeed, a party must be able to show that it took “all due care” to meet the initial deadline 

You are the successful party in an application for provisional measures - when should you file an application for a cost decision?  

• This depends on who you are - if you are a successful claimant in an application for provisional measures, and start proceedings on the merits, then you can file an application for a cost decision up until one month from the service of the decision in the proceedings on the merits, rather than the service of the first instance order on provisional measures (this was set out in the CoA Hanshow decision referred to above).
• If you are a successful defendant in an application for provisional measures, however, the picture is less clear: 
  • if no proceedings on the merits are already pending and the applicant for provisional measures does not start proceedings on the merits of the case, the one month counts from the service of the first instance order on provisional measures. 
  • if proceedings on the merits are started, then you can file an application for a cost decision up until one month from the service of the decision in the proceedings on the merits. 
• The safest course of action, if you are the successful party, is to file an application for a cost decision within one month of the service of the first instance order on provisional measures, whichever party you were. If proceedings on the merits are then started, and an application for a cost decision has already been made by the successful party in the provisional measures application, these proceedings may continue.

Referrals by the UPC to the CJEU are likely to be rare  

• The UPC cannot ask the CJEU to interpret the UPCA or the RoP, as these are international agreements and procedural rules respectively, not EU law instruments
• A need for interpretation of EU law can arise when UPCA or RoP provisions implement or relate to EU directives, regulations, or international agreements where the EU is a contracting party. The UPC must interpret its own law consistently with EU law and disapply any rule contrary to EU law with direct effect

This decision adds to the previous decision of the CoA (UPC_CoA_618/2024 6 June 2025, Hanshow vs VusionGroup). The one month for lodging an application for a cost decision pursuant to R. 151.1 RoP begins strictly with the service of the decision and failure to meet the time limit can only be remedied through re-establishment of rights. 

This decision also establishes important precedent regarding the UPC's relationship with EU law and the limits of CJEU referral obligations in the Unified Patent Court.