In(k)control B.V. v. Esko-Graphics BV & Esko Software BV, UPC Brussels Local Division, 3 September 2026, Case No UPC_CFI_871/2026
Introduction
On 3 September 2026, the UPC Brussels Local Division rendered a decision on the resumption of proceedings after a stay under R. 295(d), in particular on the effect of a stay on the procedural time limits that are running at the moment that the stay takes effect.
Background
On 10 March 2026, In(k)control BV (“In(k)control”) initiated infringement proceedings against Esko-Graphics BV & Esko Software BV (“Esko”) in relation to EP 3841735 titled “Method and system for improving the print quality” with the Dutch language as the language of proceedings. Esko applied for a change of language of proceedings, which was denied by decision of 27 April 2026. On 12 May 2026, Esko also applied for security.
On 29 May 2026, the parties informed the Court of their intent to find an amicable solution and submitted a request under R. 295(d) RoP for a stay of proceedings for an indefinite term. By a decision of 1 June 2026, the Court granted a stay of proceedings in both the infringement proceedings and the application for security until 1 September 2026.
On 31 August 2026, the parties informed the Court that no amicable solution had been reached and requested for the proceedings to be resumed. The parties differed in their view as to what such resumption practically meant for the time limits for the upcoming procedural actions under R. 296.3 RoP, which reads:
“While proceedings are stayed, time shall cease to run for the purposes of procedural periods. Time shall begin to run afresh for the purposes of procedural periods from the date on which the stay of proceedings comes to an end.”
In(k)control took the position that under R. 296.3 time limits are suspended and thus continue from where they were when the proceedings were stayed. Esko took the position that the time limits were to start anew and that it should thus have three months for submission of its statement of defence from the day that the stay came to an end.
Interpretation of R. 296.3 RoP
The Court began by assessing the three official language versions of the Rule, as machine-translated into Dutch and notes that of the current official language versions, only the English version appears to have been officially approved by the Administrative Committee.
Moving on, the Court assessed previous UPC Divisions’ decisions on Rule 296.3 RoP in which it was interpreted in different ways and concludes that the wording of the rule was deliberately vague in order to allow the Court to take the specific circumstances of the case, procedural economy and flexibility into account in its interpretation.
Analysing the text of R. 296.3 RoP as a whole, and the first sentence in particular, the Court considers the Court of Appeal’s order of 1 July 2025 (UPC_COA_542/2025 (Easee v. Visibility)) in which it indicated that “during a stay of proceedings all time limits are automatically suspended”. The term ‘suspended’ indicates a temporary pause after which the running timelines are resumed. The interpretation as advocated by Esko would render the first sentence meaningless.
Adding the linguistic ambiguity of the term ‘afresh’, as included in the Cambridge Dictionary, into the mix, the Court concludes that the procedure is to be resumed, while taking into account the time that already passed on current procedural time limits. It sees this interpretation confirmed by the French and German language versions of the Rule.
The Court then proceeds with the calculation of the days remaining on the current time limits when the stay was ordered and applies these numbers practically to the calendar from the moment that the stay is lifted.
Although the Court states that it has not identified circumstances or principles of fairness that would warrant deviation from the thus established timelines, it does open the door for the defendants to still make applications for an amendment of such timelines under R. 9.3 RoP.
Key takeaways & practical implications
The parties should be mindful of procedural timelines, even if settlement discussions are on the horizon or even underway. A Court-ordered stay of proceedings is, in principle, a clock-stop and, unless there are special circumstances that would warrant a different approach, the clock will continue counting down when the stay ends.
While procedural timelines are still running, a ‘pens down’ on the material litigation because a potential stay or even a settlement might dawn on the horizon will amount to lost time and should be taken into consideration in the overall strategy and timing. A stay does present parties with the opportunity to work on a potential settlement while taking stock of their position in the proceedings themselves. Hope for the best, but be prepared to immediately pick up the proceedings where they left off in case a settlement is not reached.
The Order (in Dutch) can be read here.
The Order (in English) can be read here.
