UPC: the CoA on the filing of annexes to the statement of claims

In an order dated 13 October 2023, the UPC Court of Appeal ruled that the defendant’s deadlines for the submission of its preliminary objection and statement of claim shall be calculated from the date when the annexes to the statement of claim were made available to the defendants, and not from the earlier date in which the statement of claim – without those annexes – was served on the defendants (APL_572929/2023 – UPC_CoA_320/2023, Sanofi v. Amgen).

Specifically, Sanofi appealed against a procedural order by the Munich local division (MLD). The MLD had rejected Sanofi’s request to order that the statement of claim was deemed to have been served on the date on which the relevant annexes were made available on the CMS (10 August 2023) rather than the actual date of service of the sole statement (11 July). This would, in turn, lead to an extension of one month of the terms granted to Sanofi for lodging its preliminary objection and statement of defence.

The Court, in partially upholding the appeal, noted that:

i)                 in line with the EU Service Regulation no. 2020/1784/EU and the CJEU case-law in C-14/07, “under Rule 271 RoP, a Statement of claim, even if it refers to or announces the later submission of Annexes, can be validly served on a defendant, provided that the Statement of claim without the Annexes enables the defendant to assert its rights in legal proceedings before the courts of the UPC. (…) Only annexes that are indispensable for the understanding of the subject matter and the cause of action must be served (and where necessary translated) on a defendant, together with the Statement of claim”. Therefore, “the fact that the annexes were not served on Sanofi together with the Statement of claim is irrelevant to determining the date of service in this case”;

ii)               however, under Rule 13.2 RoP, when serving the statement of claim, the claimant shall contextually supply a copy of its annexes. This “serves the purpose of enabling the defendant to prepare a Statement of defense on the basis of all the arguments brought forward in the Statement of claim and all supporting Annexes”. Thus, failure to comply with Rule 13.2 “in itself is sufficient to constitute a reasoned request by a defendant for an extension of the terms mentioned in Rules 19.1 and 23 RoP for lodging a Preliminary objection and the Statement of defense, regardless of the nature and/or content of the Annexes. (…) The extension of these terms shall compensate for and thus be equal to the period during which the Annexes have not been available after service of the Statement of claim”.

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