2026-09-16 - LD Brussels - In(k)control v. Esko-Graphics et al. - UPC-CFI-0000871/2026

1. Whilst Article 2(2) of the Scale of Recoverable Costs provides for an adjustment to the applicable ceiling on recoverable costs “in the event that the requesting party is unsuccessful”, the Court must also take this provision into account when assessing an application for security, since in such an assessment the Court assumes ab initio that the “requesting party … will be unsuccessful” (cf. Article 69(4) of the UPCA “may be liable to bear”). 2. The value of the dispute is definitively determined in the context of the Interim Conference (see R.104(i) of RoP in conjunction with R. 370.6 RoP). An assessment of the value of the dispute in the context of an assessment regarding an application for security is provisional in the sense that it is not binding on either the Court or the Judge-Rapporteur when it comes to the final determination of the value of the claim or the setting of the ceiling (including the manner in which that ceiling was calculated).

The Brussels Local Division ordered security for costs and set out how the amount is reached in two steps: the value of the dispute first, then the applicable ceiling of recoverable costs. It held that the value assessment made for a security application is provisional, because the value is definitively determined at the interim conference, and that an announced revocation counterclaim counts towards the value, since R. 158.1 RoP covers costs still to be incurred and such a counterclaim is a defensive consequence of the infringement action. Valuing infringement and counterclaim at EUR 500,000 each gave a ceiling of EUR 112,000. The Court held that Art. 2(2) of the Scale of Recoverable Costs must be considered when a security application is assessed, because that assessment assumes from the outset that the party providing security will be unsuccessful, but refused the reduction: the provision protects economic existence in the sense of operational activity or employment, and the claimant had neither. The ceiling is not automatically the security, there is no customary reduction to 50 per cent, and the amount follows the risk of non-recovery, here set at EUR 75,000.