Transfer of costs application from Court of Appeal to Court of First Instance rejected

Rematec GmbH & Co KG v Europe Forestry B.V.

UPC_CoA_302/2025; UPC_CoA_305/2025; PR-UPC-CFI-952/2026; PR-UPC-CFI-951/2026, order of 30 March 2026 ^[1]

The Court of Appeal (CoA) held that it did not have jurisdiction to assess a costs application filed at the CoA rather than the Court of First Instance (CFI), and rejected a transfer of the costs application to the CFI.

Background

The costs application relates to the Rematec (claimant) v Europe Forestry (defendant) litigation, ^[2] most recently reported here. Rematec’s patent EP 2 548 648 B1 was found valid and infringed at the CoA, overturning the CFI’s decision.

Costs were awarded substantially to the claimant – in their entirety for the counterclaim for revocation in both instances, and split 80/20 in favour of the claimant for the infringement action in both instances.

Costs applications should be submitted to the Court of First Instance

The claimant then filed an application for an assessment of these costs at the CoA. The CoA stated that it did not have jurisdiction to assess this application. Instead, it emphasised that the assessment of costs is a specific and separate procedure (R150 Rules of Procedure), which includes a specific appeals procedure (R157 RoP), and must begin at the CFI.

The Court held that this applies equally where the application is made following an order or decision of the CoA and thus relates exclusively or in part to the costs of the appeal proceedings. It was noted that the RoP do not provide for a specific procedure for the assessment of costs following an order or decision of the CoA, so the general procedure of R150 applies. The justification provided was that if, instead, the costs proceedings were to begin before the CoA, no appeal would be possible against the decision on costs as provided for in R157 RoP.

No transfer permitted

The claimant, following a request from the Court to address deficiencies with its application (in that it should have been submitted to the CFI), requested that its application be transferred to the CFI. The claimant also resubmitted the costs application to the CFI, but this was filed a day later than the deadline set by R151 RoP.

This transfer application was dismissed as the present case was not one of the situations where a transfer is explicitly provided for in the UPC Agreement. Nor were there any exceptional circumstances which might have justified ordering a transfer. While a transfer was permitted in a previous case ^[3] (reported here) cited by the claimants, the previous case was the first determination of costs following an order of the CoA. At that point it was not clear from the UPCA and the RoP where the application should be filed in such a situation. Given the CoA has since clarified that applications for costs should be filed at the CFI, the application for a transfer of the costs proceedings was rejected.

Whether the date of filing the costs application with the CoA could be treated as the effective submission date of a re-filed costs application at the CFI was left as a question for the CFI to decide. This has important implications for the present proceedings, because it could determine whether the costs application was filed in time in accordance with R151 RoP, or if the claimant is left resorting to re-establishment of rights to recoup their costs – which, if not granted, would preclude the costs being recovered at all.

[1] https://www.unifiedpatentcourt.org/en/node/182936

[2] https://www.unifiedpatentcourt.org/en/node/160497

[3] https://www.unifiedpatentcourt.org/en/node/160970

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