What will enforcement actions in the UPC cost?

The costs of an enforcement action (infringement and validity) of a UP across the participating EU Member States will be significantly less than the aggregate costs of individual enforcement in each of even a small number of those Member States. Further, costs will be recoverable from the losing party according to the value attributed to the case. It is proposed that there will be a fixed fee for all actions brought at the UPC, and an additional value-based fee for some actions. In particular, infringement actions:

  • will be subject to a fixed fee of €11,000,
  • with an additional value-based fee ranging from
  • €2,500 (for actions worth more than €500,000) to
  • €325,000 (for actions worth more than €50,000,000)

The value of an action will be assessed by the Court based on the objective interest of the party filing the action and guidelines laid down in the decision of the Administrative Committee (which are yet to be published).

By contrast, revocation actions will be subject only to a fixed fee of €20,000 and, if brought as a counterclaim to an action for infringement, the fee will be the same as that for the infringement action, subject to a €20,000 cap.

Small and micro-enterprises will be entitled to a 40 per cent reduction of the above fees.

It will be possible to receive a refund of a portion of the fees if the action is withdrawn or settled, of 60 per cent if this occurs before the conclusion of the written procedure, 40 per cent if before the conclusion of the interim procedure and 20 per cent if before the end of the oral procedure. The paying party can also get a reduction of 25 per cent of the fees if the action is heard by a single judge.

The UPC also has the discretion to refund the fixed and value based fees, in whole or in part, if a party (other than a natural person) establishes with evidence that payment of the normal fees would threaten its economic existence. It remains to be seen how generous the court will be in applying these provisions.

Recovery of costs – The amount of recoverable costs is also based on the value of the action brought. Recoverable costs range from:

  • up to €38,000 (for actions worth up to €250,000) to
  • up to €2,000,000 (for actions worth more than €50,000,000).

It will be possible to increase the caps on recoverable costs in limited circumstances, such as the particular complexity of the case and the need to use multiple languages, by up to 50% for cases with a value of up to €1 million, 25 per cent for cases between €1 million and €50 million, and up to €5 million in respect of cases with a value of over €50 million.

A party (including natural persons, small and micro-enterprises, non-profit organizations and universities) can also apply to the court to request that the ceilings on recoverable costs be lowered if having to pay the full amount, were the party to be unsuccessful in the litigation, would threaten that party’s economic existence. Any such request will need to be made as soon as possible in the proceedings.

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