Service of written pleadings, orders, decisions and other documents before the UPC
An action according to Article 32(1) of the UPC Agreement is introduced when the plaintiff lodges a corresponding Statement or Application at the UPC Registry (Rule 4 RoP). Then, Chapter 2 of Part 5 of the Rules of Procedure (RoP) provides for a number of provisions related to the service by the Registry of all documents related to this action (Rule 6 RoP). This Chapter 2 (Rules 270-279 RoP) is subdivided in four sections.
The first to third sections (Rules 270-275 RoP) concern the service of originating pleadings, while the fourth section (Rules 276-279 RoP) deals with service of the other documents, such as orders, decisions and other written pleadings. An originating pleading is a written pleading introducing an action, such as a Statement of claim (Rule 13 RoP) in case of an infringement action, a Statement for revocation (Rule 44 RoP) in case of a revocation action, a Statement for declaration of non-infringement (Rule 63 RoP), an Application for appropriate compensation (Rule 80 RoP) in case of an action for compensation for licences under Article 8.1 of Regulation (EU) No 1257/2012, an Application to annul or alter a decision of the European Patent Office (Rule 88 RoP), or an Application for provisional measures (Rule 206 RoP).
More specifically, the first section (Rules 270-272 RoP) relates to the service of originating pleadings within the Contracting Member States, i.e. within the UPC jurisdiction. It is first stated that both the rules set out in this Section and the EU Service Regulation shall apply (Rule 270 RoP). This explicit reference to the EU Service Regulation was introduced to ensure that certain fundamental rights of the parties must always be respected, in particular provisions related to the possible refusal to accept a document under Article 8, the date of service under Article 9 and the case of a defendant not entering an appearance under Article 19 of this EU Service Regulation.
Further, Rule 271 RoP provides for electronic service – and in particular a secured electronic service – as the default method of service. Additionally, the service is preferably done at the electronic address of the representative. This first section also broadly provides for any other method of service compatible with the EU Service Regulation, such as registered letter with advice of delivery, fax or – where service could not be done by registered letter or by fax –by any method permitted by the law of the receiving Member State or authorised by the Court.
The second section (Rules 273-274 RoP) concerns the service outside the Contracting Member States, i.e. outside the UPC jurisdiction, and the methods of service provided for service outside the UPC jurisdiction are the ones provided by the EU Service Regulation, by the Hague Convention or any other applicable convention or agreement, and at last resort to the extent that there is no such convention or agreement in force, either by service through diplomatic or consular channels from the Contracting Member State in which the sub-registry of the relevant division is established.
The third section (Rule 275 RoP) still deals with the service of an originating pleading and provides for service by an alternative method, which shall in this case be provided by way of a Court order.
Lastly, the fourth section (Rules 276-279 RoP) relates to the service of documents other than the originating pleading, such as orders, decisions and other written pleadings. The service of other documents is generally in accordance with the provisions for serving the originating pleading. In addition, this section deals with request of a decision by default and states that the Court shall in this case check that the party – against who the decision by default might be given – was correctly served (Rule 277 RoP). Finally, each party shall notice the Registry and every other party of any change of its electronic address for service as soon as the change has taken place (Rule 279 RoP).
Thus, for an efficient service, this Chapter 2 provides for electronic service wherever it is possible, while not prohibiting for other methods of service wherever electronic service cannot be carried out.