GC Aesthetics Parentco Limited & Others v. Establishment Labs S.A., UPC Brussels Local Division, 18 march 2026, UPC CFI_1357/2025 & UPC_CFI_0629/2026
Introduction
On 18 March 2026, the Brussels Local Division (“LD”) at the UPC clarified the relevant criteria on which there are grounds for a security for costs order in a non-EU/EEA state in a dispute involving GC Aesthetics (“GC”) and Establishment Labs (“Labs”), with the latter entity being incorporated and registered in Costa Rica.
Labs was ordered to provide security in the amount of 600,000 EUR within a period of 21 days following the order for the costs of the proceedings as the LD found there were legitimate concerns that the future costs may not be recoverable.
Decision
In the main infringement action, Labs, a Costa Rican domiciled company, asserted EP 3 107 487 B1 relating to soft tissue body implants against GC, which counterclaimed for revocation. GC submitted a request for security for costs under Rule 158 of the UPC Rules of Procedure (“RoP”).
The LD applied Article 69(4) of the Unified Patent Court Agreement (“UPCA”) and Rule 158.1 RoP, and relevant UPC case law, notably including Aarke v Sodastream (UPC_CFI_548/2024) and Syntorr v Arthrex (UPC_CoA_889/2025), which has confirmed that the key issues to be considered in exercising the court’s discretion under Article 69(4) UPCA and Rule 158.1 RoP are: (1) the likelihood that enforcement of a UPC costs order is “unduly burdensome” (in this case in Costa Rica); and (2) the legitimate concerns that any future costs order (if awarded) might not be recoverable.
The LD noted it disregarded any arguments regarding expected voluntary or involuntary compliance with an Order.
Unduly Burdensome Enforcement
GC argued that as there is no precedent for enforcement of a UPC costs order in Costa Rica, the LD must examine the likelihood of successful enforcement on the basis of the facts and circumstances outlined by the parties. GC highlighted that Costa Rica is neither a member of any other international agreement governing the recognition and enforcement of UPC decisions and orders (such as The Hague Convention) and actual enforcement of a cost decision could take four years or even longer.
From evidence provided by the parties, the LD noted that Costa Rica adheres to a well-known two stage process when recognising and enforcing foreign judicial decisions. At the first stage, the UPC costs order should be recognized by the First Chamber of the Supreme Court of Costa Rica and at the second stage, the enforcement proceedings should be initiated before the relevant district court in Costa Rica. The LD noted that if a legal framework is in place and it is correctly applied by the competent non-EU/EEA court, then caution should be exercised when assessing whether enforcing a UPC costs order to be “unduly burdensome”. The actual assessment to be made is whether “similar or identical” guarantees are in place for enforcing UPC costs orders in non-EU/EEA states.
The LD did not consider the enforcement proceedings in Costa Rica to be “unduly burdensome” regarding UPC costs orders and noted it requires a standard or reference to assess this, as assessing whether the duration of the enforcement proceedings is “unduly” implies a standard in the sense of proceedings being “duly”.
As GC could not provide sufficient proof of such a standard, despite the long enforcement time, the LD concluded that enforcement in Costa Rica is not unduly burdensome.
Recoverability of Costs
GC raised concerns as to whether Labs would be able to reimburse costs, and noted that the legal costs and expenses from the infringement action and the counterclaim for revocation will exceed the costs permitted under the UPC Administrative Committee’s scale of ceilings for recoverable costs. GC therefore sought security limited to the maximum amount (EUR 1.2 million).
The LD confirmed that only the financial situation of Labs in assessing recoverability, not that of its parent company.
Further, the LD also noted is the statement made by Lab’s expert witness Mr Denhoy in support of its financial stability was not in line with Rule 175.2 RoP. Whilst it did not result in the statement being invalid, it would have an implication on the weight attributed to the evidence.
The LD held that the duration of the enforcement procedure could be a “relevant factor” in determining whether Lab’s actual financial position gives rise to legitimate concerns about recoverability.
When assessing legitimate concern, the LD should assess the ceiling for recoverable costs in order to set them off against the financial means of Labs to comply with a UPC costs order. The LD held that the costs likely to be incurred by introducing the counterclaim for revocation should be considered when setting the security amount, as even though a counterclaim for revocation is considered to be a separate action in Article 32(1)(e) UPCA, it is intrinsically linked to the infringement action, and there were no indications that GC would have introduced a stand-alone revocation action if the infringement action had not been initiated.
The LD also referred to case law of the UPC Court of Appeal (Oerlikon v Bhagat (UPC_CoA_8/2025) with reference to Ballinno BV v Kinexon) which stated that the determination of an adequate amount of security for costs for first instance proceedings can be assessed once the existence and scope of the proceedings can be seen (in this case, it is the infringement action and revocation action).
The LD set the ceiling for recoverable costs at the maximum of 1.2 million EUR (according to the Guidelines for the determination of court fees and the ceiling of recoverable costs), taking into account the value which Labs attributed to the case (8 million EUR), the value of the counterclaim for revocation which the LD believed should be 8 million EUR + 50%, and the value of the combined actions which according to the above, amounts to 20 million EUR.
Given the ceiling was reached, and factoring in the long time for enforcement in Costa Rica, the LD held that the financial situation of Labs gives rise to a legitimate concern on recoverability.
Labs was ordered to provide security in the amount of 600,000 EUR (50% of the maximum amount) within 21 days following the order for the costs of the proceedings as the LD found there were legitimate concerns that the future costs may not be recoverable.
Conclusions
This decision provides important clarity for security for costs cases at the UPC when the claimant in the main proceedings is incorporated in a non-EU/EEA state. It is clear that although the place of incorporation and registration of an entity may be a relevant factor in assessing whether to grant a request for security, emphasis should be placed on whether there are “similar or identical” guarantees for enforcing UPC costs orders in a foreign non-EU/EEA state.
In addition, when arguing that the enforcement of a UPC costs order is “unduly burdensome” based on the potential duration of the enforcement proceedings, the court requires a standard reference point on which to base their decision from. On a more practical note, practitioners should expect that UPC will want to see detailed evidence of timelines for enforcement in the non-EU/EEA state, however a lengthy enforcement does automatically mean recovery of costs will be “unduly burdensome”, and practitioners should review the UPC RoP with regards to witness statements to ensure crucial financial evidence is not disregarded.
The Order can be read here.
