2026-05-22 - CoA - Suinno v. Microsoft - UPC-COA-0000021/2026

ENGLISH: For the purposes of R. 355.2 RoP the appellant is regarded as the claimant in the appeal proceedings. This means that R. 355.2 RoP does not apply in appeal proceedings when a decision by default is requested by the respondent against the appellant because the appellant failed to take a step within the time limit foreseen in the RoP or set by the Court or failed to appear at an oral hearing pursuant to R. 355.1 (a) and (b) RoP.

The Court of Appeal gave a decision by default against the appellant Suinno and dismissed its appeal against the Paris Central Division's revocation of EP 2 671 173, because Suinno failed to provide the EUR 600,000 security for costs ordered on appeal (R. 158 RoP) within the time set, having also failed to pay an earlier costs award. By way of headnote, the Court held that for the purposes of R. 355.2 RoP the appellant is regarded as the claimant in the appeal: R. 355.2 RoP — which, before a default decision against a defendant, requires the claimant's facts to justify the remedy — does not apply where the respondent seeks a default decision against an appellant who failed to take a step or appear (R. 355.1(a)/(b) RoP). The rationale is that it is the appellant who seeks the order/remedy (setting aside the impugned decision); requiring the respondent (the first-instance claimant) to present facts supporting the judgment would defeat the very purpose of security for costs in the appeal, since the respondent would still have to file a Statement of response and incur costs that may be unrecoverable. R. 357 RoP applies R. 355/356 mutatis mutandis on appeal, and although R. 357.2 RoP allows the Court to consider the merits, that does not mean R. 355.2 RoP applies (Meril v SWAT Medical). The effectiveness of security for costs is ensured by the R. 158.5 RoP power to give a default decision, from which the Court may derogate only in exceptional circumstances; Suinno advanced no such reason. The appeal was dismissed and Suinno ordered to bear the appeal costs, with the option to apply to set aside within one month (R. 356.1 RoP).