2025-12-04 - LD Brussels - CooperSurgical v. European Distribution Center MOTIVA BVBA et al. - UPC_CFI_415/2025

ENGLISH: As the Court previously held (cf. LD Düsseldorf - UPC_CFI_355/2025 and UPC_CFI_186/2025 – Fujifilm/Kodak), the focus of appropriateness “is primarily on the amount of costs incurred” and this from an ex ante perspective. When assessing these costs, elements which could be taken into consideration (having regard to the specifical circumstances of a withdrawal of an action) are inter alia: the value in dispute together with the ceiling, the significance of the case, the moment of withdrawal in the procedural agenda and the difficulty and complexity of the relevant legal and factual issues. Such an approach should indeed be favoured as it focuses on objectified elements without the necessity for the Court to assess more subjective elements which could interfere with the right of defence and, specifically, the freedom to strategically organize such defence. Assessing the “costs” as such from an “ex ante” starting point by applying objectified elements (dependent on the circumstances of the case) to assess “reasonability and proportionality” safeguards the access to the UPC (as a claimant or a defendant).

Brussels LD permitted withdrawal under R. 265 and established ex ante objectified cost assessment framework: focus on costs incurred from ex ante perspective using objectified elements (value, ceiling, significance, timing, complexity). Avoids subjective defence strategy assessments.