2026-04-07 - CoA - Suinno v. Microsoft - UPC-COA-0000021/2026

ENGLISH: "1) Art. 69 (4) UPCA permits an order for security for costs to be made only against the applicant, and not in its favour. An ‘applicant’ within the meaning of Art. 69 (4) UPCA is defined as the person who initiates legal proceedings by filing an application (Court of Appeal, 19 December 2025, UPC_CoA_622/2025, UPC_CoA_623/2025, Hefei v Grundfos, para. 10). 2) This means that, at first instance, there is no legal basis for granting a security for costs at the claimant´s request in an infringement action. The same applies to a claimant in a revocation action pursuant to Art. 32 (1)(d) UPCA (Court of Appeal, Order of 20 June 2025, UPC_CoA_393/2025, AorticLab v Emboline). The fact that the defendant has brought a counterclaim for revocation does not give the infringement claimant the right to request for security in respect of the costs of the counterclaim for revocation. Such a counterclaim for revocation is a direct consequence of the infringement action being brought by the claimant. An order requiring the defendant and the counterclaimant to provide security for costs would unduly prejudice his ability to defend himself (see AorticLab/Emboline, para. 30). 3) As the appellant initiates the appeal proceedings by lodging an appeal, the appellant is the applicant. Consequently, under Art. 69 (4) UPCA, only the respondent is entitled to request security for costs in the appeal proceedings. This generally applies even where the respondent is the claimant (Court of Appeal, 19 December 2025, UPC_CoA_622/2025, UPC_CoA_623/2025, Hefei v Grundfos, para. 12; see Court of Appeal, 30 October 2025, UPC_CoA_8/2025, Oerlikon v Bhagat, para. 17). If both parties lodge an appeal, each party may only request for security for costs in respect of the costs of the other party’s appeal. This also applies in the case of a cross-appeal (Hefei v Grundfos para. 12). 4) An exception to this applies where the defendant rightly asserts that there is a manifest error in the decision of the court of first instance. In such cases, only the defendant may require security for costs for the appeal proceedings (see Hefei v Grundfos, para. 13). 5) The conclusion of infringement proceedings does not lead to inadmissibility of a counterclaim for revocation, which was lodged during the pending infringement proceedings, and of a request for security for costs in the latter proceedings. 6) The issuing of a cost decision regarding costs incurred in the CFI proceedings pursuant to R. 150 RoP et seq. renders the request for security for costs inadmissible (see Oerlikon v Bhagat, para. 16)."

The CoA ordered Suinno to provide 600K EUR security for costs in the appeal proceedings, denied Microsoft's request for a stay, and extended the response deadline. The CoA systematically clarified the security for costs framework under Art. 69(4) UPCA: only the respondent (not the appellant) may request security in appeals, because the appellant is the 'applicant' who initiates proceedings. Exception: where the appellant demonstrates a manifest error in the CFI decision. The CoA also confirmed that a counterclaim for revocation retains autonomous existence after the conclusion of the underlying infringement proceedings (R. 265.2 RoP), and that a CFI cost decision renders security for those CFI costs inadmissible in appeal.