UPC security for costs: role follows the proceedings, not the party (UPC_CoA_21/2026)

UPC Case Law | 15.05.2026

Court docket: Court of Appeal, Order of 07.04.2026
UPC_CoA_21/2026 [EP 2 671 173]

Parties: Suinno v. Microsoft

Headnote

1. Art. 69 (4) UPCA permits an order for security for costs to be made only against the applicant, and not in its favour. An ‘applicant’ within the meaning of Art. 69 (4) UPCA is defined as the person who initiates legal proceedings by filing an application (Court of Appeal, 19 December 2025, UPC_CoA_622/2025, UPC_CoA_623/2025, Hefei v Grundfos, para. 10).

2. This means that, at first instance, there is no legal basis for granting a security for costs at the claimant´s request in an infringement action. The same applies to a claimant in a revocation action pursuant to Art. 32 (1)(d) UPCA (Court of Appeal, Order of 20 June 2025, UPC_CoA_393/2025, AorticLab v Emboline). The fact that the defendant has brought a counterclaim for revocation does not give the infringement claimant the right to request for security in respect of the costs of the counterclaim for revocation. Such a counterclaim for revocation is a direct consequence of the infringement action being brought by the claimant. An order requiring the defendant and the counterclaimant to provide security for costs would unduly prejudice his ability to defend himself (see AorticLab/Emboline, para. 30).

3. As the appellant initiates the appeal proceedings by lodging an appeal, the appellant is the applicant. Consequently, under Art. 69 (4) UPCA, only the respondent is entitled to request security for costs in the appeal proceedings. This generally applies even where the respondent is the claimant (Court of Appeal, 19 December 2025, UPC_CoA_622/2025, UPC_CoA_623/2025, Hefei v Grundfos, para. 12; see Court of Appeal, 30 October 2025, UPC_CoA_8/2025, Oerlikon v Bhagat, para. 17). If both parties lodge an appeal, each party may only request for security for costs in respect of the costs of the other party’s appeal. This also applies in the case of a cross appeal (Hefei v Grundfos para. 12).

4. An exception to this applies where the defendant rightly asserts that there is a manifest error in the decision of the court of first instance. In such cases, only the defendant may require security for costs for the appeal proceedings (see Hefei v Grundfos, para. 13).

5. The conclusion of infringement proceedings does not lead to inadmissibility of a counterclaim for revocation, which was lodged during the pending infringement proceedings, and of a request for security for costs in the latter proceedings.

6. The issuing of a cost decision regarding costs incurred in the CFI proceedings pursuant to R. 150 RoP et seq. renders the request for security for costs inadmissible (see Oerlikon v Bhagat, para. 16).

Relevance of the decision

In its Order of 7 April 2026 in Suinno v Microsoft (UPC_CoA_21/2026), the Court of Appeal consolidated its emerging case law on the procedural question: who can be ordered to provide security for costs at different stages at the UPC?

The answer turns on the meaning of "applicant" under Article 69(4) UPCA. The Court reaffirmed its approach from Hefei v Grundfos (UPC_CoA_622/2025, 19 December 2025): an "applicant" is "the person who initiates legal proceedings by filing an application" (para. 14).

Security for costs can only be ordered against this applicant and not in their favour, unless the appellant is the first-instance defendant who can demonstrate a manifest error in the CFI decision, in which case the appellant may exceptionally request security from the respondent.

At first instance, this means that a claimant who brings an infringement action cannot obtain security for costs from the defendant, even if that defendant subsequently files a counterclaim for revocation. As the Court puts it, a counterclaim for revocation "is a direct consequence of the infringement action brought by the claimant" and ordering security against the defendant "would unduly prejudice his ability to defend himself" (para. 15; see AorticLab v Emboline (UPC_CoA_393/2025, 20 June 2025) and Oerlikon v Bhagat (UPC_CoA_08/2025, 30 October 2025).

On appeal, the "applicant" label shifts: the appellant becomes the new applicant, regardless of who was the claimant in first-instance. It is therefore the respondent (in this case Microsoft) who holds the right to request security, even though Microsoft was the revocation counterclaimant at first instance.

By contrast, under German law, § 110 of the German Code of Civil Procedure ("ZPO"), the claimant's role is fixed at first instance and persists throughout all instances. A first-instance defendant who brings an appeal never becomes "Kläger" (claimant) and therefore never attracts a security obligation. Interestingly, on (other) counterclaims both systems converge. § 110 Abs. 2 Nr. 4 ZPO equally exempts counterclaimants, on the same underlying rationale that the counterclaim was provoked by the claimant's own action.

For practitioners, the UPC's dynamic stage approach demands careful analysis at each procedural level: the party entitled to request security can change with every new set of proceedings.

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