Art. 69(4) UPCA permits an order for security for costs only against the applicant
Art. 69(4) UPCA permits an order for security for costs only against the applicant, but not in the applicant’s favour. “Applicant” is the party that initiates the relevant proceedings by lodging the procedural act by which those proceedings are commence (see orders of 28 April 2026, UPC_CoA_21/2026, Suinno v Microsoft; 9 December 2025, UPC_CoA_622/2025, Hefei v Grundfos; 30 October 2025, UPC_CoA_8/2025, Oerlikon v Bhagat; 20 June 2025, UPC_CoA_393/2025, AorticLab v Emboline). Accordingly, at first instance, there is no legal basis for granting security for costs at the request of a claimant in infringement proceedings or in a revocation action.
In appeal proceedings, the appellant initiates the proceedings by lodging the appeal and is therefore to be regarded as the “applicant” within the meaning of Art. 69(4) UPCA. Consequently, as a general rule, only the respondent may request security for costs in appeal proceedings.
Requirements of Art. 69(4) UPCA and R. 158 RoP
Security for costs may be ordered where the financial position of the claimant gives rise to a legitimate and real concern that such a
risk exists (see also CoA orders of 17 September 2024, UPC_CoA_218/2024, Volkswagen v NST, and UPC_CoA_217/2024, Audi v NST). The burden of substantiation and proof why an order for security for costs is appropriate in a particular case is on the applicant.
In this context, non-payment of previously ordered amounts does not necessarily demonstrate inability to pay. It may also reflect a party’s litigation strategy or disagreement with the underlying order. However, continued non-payment constitutes a significant factor in the Court’s assessment, especially if the appellant has relied on alleged financial hardship.
A party seeking security is not required first to undertake enforcement measures in respect of existing claims and to demonstrate their failure as the purpose of a security for costs is preventive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
