Key takeaways
Representation of parties in proceedings before the UPC, Art. 48 UPCA: No corporate representative of a legal person or any other natural person who has extensive administrative and financial powers within the legal person, whether as a result of holding a high-level management or administrative position or holding a significant amount of shares in the legal person, may serve as a representative of that legal person.
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- The interpretation of the term “represented” under Art. 48(1) and (2) UPCA and “representatives” in Art. 48(5) and (6) UPCA aligns with the interpretation of Art. 19(3) of the Statute of the Court of Justice of the European Union (CJEU Statute) by the CJEU.
- The CJEU has adopted an autonomous and uniform interpretation of Art. 19(3) CJEU Statute. It follows from the wording, in particular from the use of the term “represented”, that a “party”, irrespective of that party’s standing, is not authorized to act on its own behalf before a Court of the European Union (see CJEU, 4 February 2020, C-515/17 P and 561/17 P, para 57 f., cited above) and that a legal person cannot be properly represented before the Courts of the EU by a lawyer who has, within the body which he represents, extensive administrative and financial powers, holds a high-level management position within or holds shares in the legal person, or is the president of the board of administration of the company (CJEU, 4 February 2020, C-515/17 P and 561/17 P, para 65; 5 September 2013, C-573/11 P, para 12 – ClientEarth/EU Council, also cited in the impugned Order, para 36). One of the objectives of parties being represented by a lawyer is to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents (CJEU, 4 February 2020, C-515/17 P and 561/17 P, para 61; CJEU, 5 September 2013, C-573/11 P, para 14).
Independence of exercise of the duties of a representative as required by Art. 48(5) UPCA is not undermined by the fact that the lawyer or European patent attorney, qualified as a representative under Art. 48(1) or (2) UPCA, is employed by the party he or she represents (in deviation to CJEU).
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- This interpretation of Art. 48(5) differs from the CJEU’s interpretation of the term “independent exercise of duties” in Art. 19(5) CJEU Statute. The Court was aware of this deviation and the settled case law of the CJEU that a lawyer who is employed by a legal entity is not entitled to represent the legal entity as a party in proceedings before the CJEU and the EU Courts (CJEU, 14 September 2010, C-550/076, para 43 f.; April 2017, C-464/16 P, para 29 – PITEEE/EU Commission; 4 February 2020, C-515/17 P and C-561/17 P, para 63).
- The Court considered the deviation admissible since the CJEU’s case law relates only to proceedings of EU Courts, not to proceedings before the national courts of the Member States. The UPC is not an EU court and like national courts of its Contracting Member States not bound by the CJEU’s interpretation of Art. 19 (5) CJEU Statute.
- The Court’s interpretation also complies with the Rules of Procedure. R. 287.2 RoP explicitly provides that the attorney-client privilege laid down in R. 287.1 RoP applies also to communications between a client and a lawyer or a patent attorney employed by the client and instructed to act in a professional capacity, whether in connection with proceedings before the Court or otherwise. R. 288.1 RoP concerns litigation privilege and refers equally to R. 287.1 and 2 RoP regarding the addressees of that privilege.
- This interpretation is also in line with the Code of Conduct: A representative who is employed by a party must act towards the Court as an independent counsellor by serving the interests of his or her client in an unbiased manner without regard to his or her personal feelings or interests, see Art. 2.4.1 of the Code of Conduct and R. 290.2 RoP.
Division
Court of Appeal
UPC number
UPC_CoA_563/2024, APL_53716/2024, ORD_68946/2024
Type of proceedings
Appeal R. 220.2 RoP
Parties
Appellant (Defendant in the R. 333 RoP Application, Claimant in the main infringement action): Suinno Mobile & AI Technologies Licensing Oy
Respndent (Applicant in the R. 333 RoP Application, Defendant in the main infringement action): Microsoft Corporation
Patent(s)
EP 2 671 173
Jurisdictions
Place jurisdictions
Body of legislation / Rules
Art. 48 UPCA, R. 290 RoP, Art. 2.4.1 of the Code of Conduct for Representatives
