Niche Biomedical, Inc. (trading as ANEUVO) v. ONWARD Medical N.V., UPC Local Division Munich, 6 August 2026, Case no. UPC_CFI_1569/2025
A short but practically important cost decision on how, and when, a party must ask for the ceiling on recoverable costs to be raised.
Niche, the successful defendant in preliminary injunction proceedings (UPC_CFI_693/2025), applied for costs exceeding the applicable ceiling by 50%. It argued that it had already sought an interim award of costs in its protective letter, and a higher one in its objection to the application for preliminary measures, expressly stating there that its lawyers’ fees already exceeded the “regulated maximum amount”. To require the word “ceiling”, or to label its request as one under the Administrative Committee’s Decision of 24 April 2023, was, it said, unnecessary formalism.
The judge-rapporteur disagreed. A request to raise (or lower) the ceiling under Art. 2(4) of the Decision is only to be assumed where it is clear and explicit from the request that this is what is sought. This follows from the requirement of clear and specific requests under Art. 76 UPCA, which is not “mere formalism” but an important procedural principle. A request for an interim award of costs of a particular amount is something different from a request to raise the ceiling, and the mere indication that lawyers’ fees of a certain amount have been incurred does not suffice.
The distinction matters because the court is to decide on such a request before deciding the substance, and in any event before the close of the interim procedure. Once the decision on the application for preliminary measures has been given, a request to raise the ceiling is no longer possible. The fact that the applicant had raised the point at the earliest opportunity did not help it, since it had never framed it a request. The judge-rapporteur added that an increase would not have been justified in any event, as the case was neither factually nor legally particularly complex.
On the remaining issues, the hourly rates claimed were not objectionable. They were considered to be at the upper end, but within the range that clients agree and pay. As the applicant had not substantively engaged with those items challenged by ONWARD, those could be treated as conceded. Even after deducting them, the recoverable amount exceeded the ceiling, so the disputed items did not need to be decided. ONWARD’s complaint that the hours spent on the protective letter were excessive failed for want of case-specific submissions. A blanket comparison with the time spent in other proceedings cannot be decisive. An unsolicited submission by the applicant was taken into account because it would have had to be heard in any event, but its representative was reminded that submissions not provided for in the RoP require a court order. ONWARD was ordered to pay the full amount of the ceiling within three weeks.
The Decision (in German) can be read here.
