LD Mannheim, January 30, 2026, Order by the Panel on application for the imposition of penalties, UPC_CFI_365/2023

It is noted that Defendants’ opinion, that an Order issued by the Judge-rapporteur alone was not allowable, is not supported. The Panel has seen the Order of the CoA, to which Defendants refer. However, the Panel respectfully invites to reconsider such reading of R. 354.4. RoP. Rather, Rule 354.4 RoP makes clear in its last sentence, that , “after having heard both parties the Court may make an appropriate order which may be subject to an appeal pursuant to Rule 220.2.”

Where the Rules of Procedure refer to “the Court”, Rule 1.2(a) RoP states that the respective act may be performed by the presiding judge or the judge-rapporteur of the panel. An exception only applies where such act is “exclusively reserved for a panel of the Court”. R. 354.4. RoP is not such a case as its last sentence makes clear.

The Panel sees that R. 354.4 RoP, in its first sentence reads that in case of non-compliance “the first instance panel of the division in question” may decide. This does not mean, however, that such act was exclusively reserved to the “panel of the Court” in the sense of R.1.2 RoP.

First, Rule 354.4. RoP does not speak of the “panel of the Court” but of the “first instance panel of the division”. In the whole Rules of Procedure, Rule 354.4 RoP is the only place, where the Rules refer to “first instance panel of the division”. In contrast, in all other cases, the Rules of Procedure, refer to the “panel of the Court”, where the Rules want to reserve a decision for the whole Panel (see e.g. R. 320(1) RoP) or just to “the panel” (see e.g. R. 37.1 to .5 RoP, R. 75.3 to .6 RoP, 76.3 RoP, R. 96 RoP, R. 102 RoP, R. 135.2 RoP, R. 254 RoP, R. 321.2 RoP, R. 322 RoP, R. 333.4 RoP, R. 363.1 RoP.

In contrast, the terminology “panel of a division” is only used, where the respective Rule deals with the court-internal distribution of cases (see R. 17.2 RoP, R. 92 RoP). This is the meaning of Rule 354.4 RoP first sentence. The rule wants to make clear, that an enforcement application is to be handled by the same Panel – in the sense of organizational unit of the CFI – which dealt with the decision on the merits or the PI as the case may be. The ratio legis is that the resources of the CFI have to be used efficiently and therefore the division and of that division the panel, which already knows the case, should deal with eventual follow-up enforcement questions. Therefore, the rule was introduced in the final 18th draft of the RoP (the rule was not included in the 17th draft of 2014) to ensure that a party may not file an application for enforcement in a different division, arguing that it is “one CFI” and therefore enforcement proceedings can be brought before any convenient division or if more than one panel exists at a division, with a different panel. The provision therefore solely has an organizational purpose.

There also is no reason, why an application for enforcement should always be dealt with by the whole panel. If that is the case, the CFI will need even more judges to deal with its cases appropriately as the caseload is multiplied, if all judges of the panel have to get involved for potential consecutive steps, which may or may not follow. The question, whether the operative part of the panel decision or order has been complied with, can also adequately and more efficiently be dealt with, if the Judge-rapporteur decides upon the application first and if the Panel only gets involved upon application for review under R. 333 RoP. Moreover, the Court of Appeal is relieved of unnecessary appeals, if there is a first instance review by the panel.

Also the fact that R. 354.4 RoP refers to R. 220.2 RoP does not justify a different result. This makes clear that any enforcement order may be reviewed by the CoA, but does not exclude a panel review under R. 333 RoP beforehand. Also, the wording of R. 333 RoP does not militate against this reasoning. R. 333 RoP does not have to be restricted to “case management decisions or orders” in a sense that only orders, which are of organizational purpose or which move the proceeding to a further stage can be subject to a review by the panel. Rather “case management” can be understood broadly so that it also encompasses orders, which deal with the question, if a decision or order has been complied with.

Finally, also the aspect that, at the enforcement stage, compliance with the order or decision of the whole panel is subject to examination, does not mandate an immediate decision by the full panel. Where a follow-up part of the CFI procedure, which does not necessarily follow, but is subject to a respective application is concerned, the Rules of Procedure explicitly state it, if such procedure is to be run and decided by the whole Panel as it is the case for the determination of damages., R. 135.2 RoP. No such rule is in place for enforcement proceedings.

LD Mannheim, January 20, 2026, application for the imposition of penalties, UPC_CFI_365/2023 » UPC Law