2025-11-28 - CoA - Barco v. Yealink Network Technology - UPC_CoA_317/2025

1. For reasons of efficiency (see RoP preamble 4) and in view of the urgency of an application for interim measures, R. 19.5 RoP shall apply mutatis mutandis to proceedings for provisional measures. A referral to the competent division is therefore also possible in such proceedings (R. 19.5 RoP). 2. If the division seised considers that a defence raised on the competence of the local division is well-founded and the applicant for provisional measures indicated another division that is competent, it shall refer the Application to that division. 3. Competence of the divisions of the Court of First Instance, regulated in Art. 33 UPCA, is a UPC internal matter. Internal competence is not governed by the Brussels I Recast Regulation. 4. For the purpose of establishing the competence of a local division, there is no hierarchy between competence based on the place where the actual or threatened infringement has occurred or may occur in Art. 33(1)(a) UPCA, and competence based on the residence or principal place of business of the defendant in Art. 33(1)(b) UPCA. 5. There is no need to look for connecting factors in the territory of the local division seised in relation to each defendant to establish competence. To determine competence under Art. 33(1)(a) UPCA, the existence of infringing activities, for example an offer or the possibility to obtain the allegedly infringing devices through a website accessible in the Contracting Member State hosting the local division, needs to be established. 6. The establishment of whether a first instance division is competent should not be based on a comprehensive evaluation of the evidence in relation to disputed facts that are relevant both to the question of competence and to the existence of the claim, since such an assessment would improperly anticipate the outcome. Rather, the Court will take a cursory look at the parties' allegations and evidence as provided, if any. 7. As a rule, potential changes of products on the market do not justify a delay within the meaning of R. 211.4 RoP. 8. An interim award of costs may also be ordered in favour of the defendant in proceedings for provisional measures. 9. In proceedings for provisional measures, there will often be reasons to allow the successful party an interim award of costs. This allows the successful party to recover, on an interim basis, at least part of the costs incurred from the unsuccessful party, pending the subsequent start and final conclusion of separate proceedings for cost decision as set out in R. 150 et seq RoP. 10. An interim award of costs up to the applicable ceiling for cost compensation effectively makes the procedure for cost decision pursuant to R. 150 et seq RoP largely redundant. While the Scale of ceilings for recoverable costs only applies to representation costs (see R. 152.2 RoP and Article 1(2) of the Scale of ceilings), and there can be additional costs in the form of recovery of court fees, costs of witnesses, costs of experts, and other expenses (see R. 151(d) RoP), representation normally forms the bulk of the costs. Even though the Court of First Instance has broad discretion in this matter, the Court of Appeal considers that an interim costs award of up to equal to half of the ceiling is generally more appropriate. 11. A different consideration may apply if parties have submitted and discussed cost specifications during the proceedings or agreed on the costs to be reimbursed.

Landmark CoA order: Art. 33 UPCA competence is UPC-internal, not governed by Brussels I Recast. No hierarchy between Art. 33(1)(a) and (b). Cursory evidence assessment for competence. PI dismissed for urgency failure — 4-month delay unreasonable. Product changes don't justify delay. Interim costs of 50% ceiling is general standard; full ceiling makes R. 150 redundant.