CoA Luxemburg, August 21, 2024, Order concering an application for a discretionary review by the CoA under Rule 220.3 RoP, UPC_CoA_454/2024

A discretionary review by the Court of Appeal pursuant to R.220.3 RoP is only admissible if leave to appeal against the impugned order is required (R.220.2 RoP (1)) and the Court of First Instance refused to grant leave within 15 days of the order (R.220.3 RoP (2)). In case of an order made solely by the judge-rapporteur or the presiding judge, it also depends on whether it may be appealed directly. Unless otherwise provided, R.220.3 ROP provides for the grant of leave to appeal by the standing judge only if the subject-matter of the appeal, in case leave is granted, is an order issued by a panel (see Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023, APL_595643/2023 para 21).

The order denying a R.361 RoP request is a case management order as meant in R.333.1 RoP. The notion of a ´case management decision or order´ is a broad concept that calls for a broad interpretation. All case management orders and decisions, notably those mentioned in R.334 RoP, can be subject to review under R.333 RoP (Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023 APL_595643/2023, para 35). According to R.334 (h) RoP, to dismiss a claim summarily if it has no prospect of succeeding is a proper use of case management powers. A fortiori this includes the rejection of a R.361 RoP request.