UPC: Publication of a decision by default can constitute good service

In two recent decisions handed down by the Munich Local Division of the UPC (UPC_CFI_508/2023, UPC_CFI_509/2023), the Court deemed that the publication of a decision by default on its website constituted good service on the defendant in the underlying infringement proceedings. The decision in question related to granting an application for provisional measures against the defendant, who had failed to respond to the initial application within the set time limit.

Previously, service of the application for provisional measures had been attempted under the Hague Service Convention as the defendant is domiciled in China. Despite every effort to obtain proof of service by this method, no reply regarding the status of service was received. Further, service by electronic means was equally not possible, and no other alternative method or alternative place was known. The Court therefore ruled that the unsuccessful attempts to serve the application themselves constituted good service. 

Given the historical difficulty in establishing service, the Court anticipated that any attempts to serve the decision by default by means of the Hague Service Convention or otherwise would be futile. The Court considered that it was not compatible with the principal of effective legal protection to force a claimant to effect service in this manner, especially in proceedings for interim relief. It was therefore held that the only way to establish service was by publication of the decision and notification to the defendant by email, which was itself deemed good service in this instance. This decision underscores the UPC’s pragmatic approach to service requirements, particularly in cases where traditional methods prove ineffective. By recognising publication as good service, the Court prioritises effective legal protection and expedient enforcement of provisional measures—an important consideration for claimants seeking urgent relief in cross-border disputes.