Court of Appeal, May 21, 2025, order on application for suspensive effect, UPC_CoA_365/2025

Pursuant to Article 74(1) UPCA, an appeal does not have suspensive effect unless the Court of Appeal decides otherwise upon a reasoned request by a party. The Court of Appeal may therefore only grant such a request if the circumstances of the case justify an exception to the principle that an appeal does not have suspensive effect. In this context, it must be assessed whether the appellant’s interest in maintaining the status quo until a decision on the appeal outweighs, in exceptional cases, the respondent’s interest (continutation fo the Court’s established case law: UPC Court of Appeal, Order of 18 January 2024, UPC_CoA_4/2024, App_100/2024 Meril/Edwards, p. 5; Order of 19 June 2024, UPC_CoA_301/2024, App_35055/2024, para. 7; Order of 19 August 2024, UPC_CoA_388/2024, APL_39884/2024, Sibio et al/Abbott, para. 6).

The granting of suspensive effect is particularly considered when the order being appealed is manifestly erroneous (see also UPC Court of Appeal, Order of 18 January 2024, UPC_CoA_4/2024, App_100/2024, Meril/Edwards, p. 5; Order of 19 August 2024, UPC_CoA_388/2024, APL_39884/2024, Sibio et al/Abbott, para. 7) or when enforcement of the contested decision would render the appeal largely moot (continuation of UPC Court of Appeal, Order of 6 November 2023, UPC_CoA_407/2023, App_584588/2023 Ocado/Third Party; Order of 2 May 2024, UPC_CoA_177/2024, APL_20002/2024, Progress Maschinen & Automation, para. 10).

Furthermore, a violation of fundamental procedural rights, such as the right to be heard, may also justify the granting of suspensive effect if it cannot be ruled out from the outset that the court might have reached a different conclusion in the absence of the violation (continuation of UPC Court of Appeal, Order of 29 October 2024, UPC_CoA_549/2024, App_53031/2024, Philips/Belkin, para. 61).

As a rule, an application for suspensive effect cannot be based on the argument that the opponent’s financial situation necessitates the imposition of security if this could already have been asserted in the first instance and if the applicant, in the first instance, has not brought forward facts with regard to plaintiff’s poor financial situation. It is the party’s responsibility to present, during the proceedings before the Court of first instance, the facts that justify the imposition of security, such as the opponent’s poor financial situation. The same applies if the defendant tries to justify an application for suspensive effect with the opponent’s financial situation.