For the introduction of the case, please refer to the blog entry Roku I.
In the present case, we will discuss the decision of the CoA UPC.
In this decision, the CoA considered the compatibility of the UPC’s jurisdiction with EU law and the replacement of London by Milan.
The decision of the CoA UPC has been taken in a composition of 3 LQJ.
The order UPC_CoA_288/2025, is same for all the cases at stake.
Roku’s requests before the UPC CoA
Roku reiterated its requests before the first instance and merely expanded the reasons given there.
Aspects relating to the allocation of jurisdiction will not be discussed here.
The CoA’s decision
In the prder UPC CoA 288/2025, the CoA decided the following:
On the grounds for a Preliminary objection
R 19.1 RoP contains an exhaustive list of admissible grounds for preliminary objections and referred to the oder of 03.09.2024, UPC_CoA_188/2024, APL_21943/2024, Aylo v Dish, § 32. This order includes the jurisdiction of the court, cf. R 19.1(a) RoP, and thus also the question of the validity of the relevant jurisdiction rules.
An alleged violation of Art 47(2) EU CFR and Art 6 ECHR does not concern any of the grounds for preliminary objections listed in R 19.1 RoP. A preliminary objection based thereon is therefore without merit.
The UPC is to be considered like a court of a EU member state
To support its allegation, the present panel referred first to the order of 03.09.2024, UPC_CoA_188/2024, APL_21943/2024, Aylo v Dish, § 10.
However, the present panel has expanded on those reasons.
The panel added that for the UPC to be classified as a court common to several Member States, it is sufficient that the UPC has the task of ensuring the uniform application of the legal provisions common to the Contracting States and has sufficient links with the court system of the Contracting States.
For the panel, a connection with the court system does not require the UPC, like the Benelux Court, to rule as an intermediate instance in proceedings pending before national courts.
It further added that, the opposite does not follow from the Achmea, C-284/16, and Miles, C 196/09, decisions of the ECJ. In those cases, the ECJ denied the existence of a court common to several Member States because there was nothing comparable with the Benelux Court of Justice.
The connection of the UPC with the court system of the Member States is established by virtue of Art 1 UPCA, as it is subject to the same obligations under Union law as any national court of the contracting Member States. A further reason for the UPC to be a court of the contracting Member States is to be found in Art 22, 23 and 24(1) UPCA.
The UPC is thus, from a functional point of view, an inherent part of the court system of the Member States, even though it was established by a treaty outside the Union.
No referral to the ECJ
For the panel, it is not necessary to refer the question of the compatibility of the allocation of jurisdiction to the UPC with Art 19 TEU and Art 267 TFEU to the ECJ.
The panel referred to a series of judgments of the CJEU and to the Opinion C 1/09 and concluded that there is no doubt as to the compatibility of the allocation of jurisdiction to the UPC in Articles 71a and 71b of the Brussels Ia Regulation with Article 19 TEU and Article 267 TFEU and cited further judgements of the ECJ.
Violation of Art 47(2) E CFR and Art 6(1) ECHR-Setting up of the Milan Section of the CD
Since the rules on jurisdiction in the EPCA are compatible with Art 19 TEU and Article 267 TFEU, no violation of the right to a lawful judge can be established from this perspective.
Nor is there any objection to the LD Munich considering the objections not admissible insofar as Roku justifies a violation of the right to a lawful judge on the grounds that, contrary to Art 7(2) UPCA, there is no London Section of the CD.
Contrary to Rokus’ opinion, the Administrative Committee of the EPCA was also authorized, by analogy with Art 87(2) EPCA, to provide, that Milan would replace London as a section of the CD in London with the responsibilities set out in Annex II UPCA.
The authorization to amend the EPCA pursuant to Art. 87(2) EPCA does not merely concern adjustments in the event of legal changes after the Convention has entered into force. The wording “in order to bring it into line with an international treaty (…) or with Union law” suggests rather that, in particular, any incompatibility with Union law that already existed when the Agreement entered into force authorized the Administrative Committee to make a corresponding amendment. No contracting state raised an objection pursuant to Art 87(3) UPCA.
Only in this way can it be ensured that there are no obstacles to the implementation of the Agreement and that the Administrative Committee can respond to any incompatibility with Union law that has been identified. Nothing else can apply in the case of an analogous application of Art 87(2) UPCA due to factual obstacles.
Comments
Roku had certainly a point, but the CFI-LD and the CoA played the three monkey game, as they saw that their future could be endangered. The decision can be criticised for different aspects.
On R 19(1) RoP
R 19(1,a) RoP states merely that “Within one month of service of the Statement of claim, the defendant may lodge a Preliminary objection concerning the jurisdiction and competence of the Court,….
It is difficult to see here all the reservations the CFI-LD and the CoA have built in. All grounds brought forward are simply there to find a good excuse and to justify the dismissal of Roku’s objection.
Be it in the present case or in the Aylo/Dish case, it is an interpretation of R 19(1,a) ROP which has been given, but those reasons are not convincing. They are no more than a pro-domo plea.
The UPC is to be considered like a court of a EU member state
Art 1 UPCA is no more than a declaration. The ECJ has never endorsed this position with respect to the UPCA and this point has never been clarified, as the UPCA has never been subject of a consultation by the ECJ, contrary to the EPLA.
All the argumentation of the CoA in the Aylo/Dish case, is based on an interpretation of various decisions of the ECJ. The same applies when the present panel alleges that the UPC is comparable to the Benelux Court in that the UPC has sufficient links with the court systems of the Contracting States. There again, it is no more than a pro-domo plea.
No referral to the ECJ
Only the CJEU should decide whether the UPC is a court common to member states like the Benelux Court, certainly not the jurisdiction itself. Where has it be seen that a jurisdiction has decided by itself that it is in conformity with the legal rules on which it is based. This is no more than a tautology.
Setting up of the Milan Section of the CD
This was a weak argument from Roku, although it is manifest that the replacement of London by Milan is problematic.
In my comment under Roku I, I have given reasons why the decision is lacking any basis, since the VCLT has carefully been ignored.
The present panel has attempted to give a legal blessing to the decision of the Administrative Committee to fiddle with the UPCA. The decision of said committee is no
It is only by analogy that the present panel has considered Art 87(2) UPCA applicable. This is a very weak reason, which does not resist a serious examination.
Art 87(2) UPCA has never been designed as means to overcome the problems created by the Brexit. When the UPCA was signed and ratified, Brexit has never been envisaged, as the UPCA does not contain an exit clause. Brexit was unthinkable, but it nevertheless happened.
That no objection under Art 87(3) has been raised, is simply due to the fact that the decision of the Administrative Committee is a political decision, in a desperate attempt to save the UPCA.
If the promoters of the UPC wanted to save the UPCA after Brexit, there was one correct legal way to do it: renegotiate Art 7(2) and Annex II UPCA. There would have been ample time to do so, and at the same time apply the VCLT in various decisions of the UPC and the Administrative Committee.
Manifest violation of Art 47(2) EU CFR and Art 6 ECHR
That the present decision has been taken by a composition of three LQJ is as such a scandal on its own, as it is in manifest breach of Art 9(1) UPCA which provides that “Any panel of the Court of Appeal shall sit in a multinational composition of five judges”, i.e. 3 LQJ and 2 TQJ. At least the Alyo/Dish decision was taken by a properly composed panel of the CoA UPC.
Where has it been seen that a court can disregard the text forming its legal basis and interprets it at its convenience or as a matter of efficiency. For this reason alone, the present panel is in breach of Art 47(2) EU CFR and/or Art 6(1) ECHR, whatever the present panel of the UPC CoA might allege.
I have asked once a LQJ of a CFI-LD what could the be legal basis of the decision according to which only 3 LQJ can sit as a CoA panel. The reply was simple: ask the chairperson of the second chamber.
A referral to the ECJ is badly needed
To sum it, the legal blessing given by the present panel of the CoA UPC to the fiddling with Art 7(2) UPCA, alone deserves a referral to the ECJ.
Only the ECJ is in a position to say whether the decisions of the presidium, of the Administrative Committee of the UPCA, and the legal blessing given to the amendment of Art 7(2) UPCA by the present panel, are in conformity with Union law, especially with Art 47(2) EU CFR.
What matters is not a mere allegation that the UPC is a court common to member states and is following Union law. This position has to be vetted by the ECJ.
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