expert e-Commerce GmbH & expert klein GmbH v. Seoul Viosys Co., Ltd, UPC Court of Appeal, Standing Judge Ingeborg Simonsson, 20 August 2025, Case no. UPC_CoA_380/2025
expert sought leave to appeal and requested preliminary questions to the CJEU (Art. 267 TFEU), challenging Rule 151 RoP’s (one-month deadline for applying for cost recovery) compatibility with Art. 69 UPCA, the Charter, and EU law. Viosys opposed, arguing Rule 151 provides a clear procedural framework, not a substantive bar.
Standing Judge Ingeborg Simonsson finds that there is no reason to refer questions to the CJEU, refers to UPC_CoA_618/2024, Hanshow v. VusionGroup and denies the appeal:
“Based on these considerations, the standing judge concludes that (i) the question about R. 151 RoP raised by expert has already been resolved by the Court of Appeal, including the non-applicability of R. 9 RoP, and (ii) there is no reason to refer any questions to the CJEU for a preliminary ruling pursuant
to Art. 267 TFEU. For these reasons, the application for leave to appeal shall be denied.”
HEADNOTES:
1. A need for interpretation of EU law in the context of application of the UPCA and/or the RoP can arise when, for instance, a provision of the UPCA or the RoP implements or relates to a directive, a regulation, or to an international agreement such as the Lugano Convention where the EU is a contracting party, whether the UPCA and/or the RoP make specific reference thereto or not. The EU legislation referred to in the UPCA and the RoP is by no means exhaustive.
2. Similarly, if the UPC applies EU law, questions of interpretation of EU law can come into play.
3. The UPC must interpret its own substantive and procedural law in a manner that is consistent with EU law, and in the rare cases when such interpretation is impossible, ultimately disapply, of its own motion, any rule or practice, which is contrary to a provision of EU law with direct effect. This obligation can open up questions on interpretation of EU law.
4. By contrast, the UPC cannot ask the CJEU to interpret the UPCA. As is clear from a reading of the case-law of the CJEU, the UPCA is an international agreement. It forms part of international law.
5. It also results from EU law that the UPC cannot ask the CJEU to interpret the RoP.
6. There is no need for a preliminary ruling where established case-law of the CJEU already resolves the point of law in question. The same applies where there is no scope for any reasonable doubt about the application of the principles
A copy of the Order (in German) can be read here.
A copy of the Order (in English) can be read here.
