Security deposit for the costs of the proceedings for UK Plaintiffs after Brexit – an Update

I. Update Federal Court of Justice

In the meantime, the first judgement of the Federal Court of Justice (BGH) on the subject of “security deposit for costs of proceedings UK” has been issued. In its judgement of 1 March 2021 (Ref. X ZR 54/19), the BGH ruled that plaintiffs from the United Kingdom must provide security deposit for the costs of the proceedings pursuant to section 110 of the German Code of Civil Procedure (ZPO).

The Federal Court of Justice ruled that the requirements under section 110 (2) no. 1 of the Code of Civil Procedure (ZPO) were not met, i.e. that no international treaty released a party from the obligation to provide security deposit for the costs of the proceedings. Regrettably, the Federal Court of Justice did not comment on possible treaties in its decision.

II. Update Federal Patent Court

In its decision of 15.03.2021 (Ref. 3 Ni. 20/20 (EP)), the Federal Patent Court also ruled on the question of whether an plaintiff from the United Kingdom must provide security deposit for the costs of the proceedings. In the decision, the Federal Patent Court, in contrast to the Federal Court of Justice, examined several treaties under international law, with the same result that the plaintiff is not exempt from providing security deposit for the costs of the proceedings under Section 110(2)(1) ZPO.

The Federal Patent Court held that although the Hague Convention on Civil Procedure (HZPÜ) of 1 March 1954 provides for an exemption from the obligation to furnish security deposit for the costs of the proceedings, it did not enter into force in relation to the United Kingdom for lack of ratification. In addition, the German-British Convention on Legal Relations of 20 March 1928 was only applicable to parties with their headquarter in Germany. Furthermore, the Federal Patent Court stated that although the European Convention on Establishment of 13 December 1955 applied in relation to the United Kingdom, it only provided for an exemption for natural persons under Articles 9 and 30. The exemption therefore did not apply to plaintiff companies, as in the present case.

In addition, the Federal Patent Court dealt with the Trade and Cooperation Agreement between the EU and the United Kingdom. IP.6(2) of this agreement provides for equal treatment of nationals, which according to the Federal Patent Court is generally not sufficient to exempt an plaintiff from the obligation to provide security deposit for the costs of the proceedings. In doing so, the Federal Patent Court refers to the case law of the Federal Court of Justice (BGH, decision of 23.10.2018 – XI ZR 549/17), which has meanwhile also been at least predominantly followed by the commentary literature. Plaintiffs can therefore not assume in the future that they are exempt from the obligation to provide security deposit for the costs of the proceedings on the basis of the Trade and Cooperation Agreement.

The Federal Patent Court did not comment on the withdrawal agreement between the EU and the United Kingdom. This is regrettable. According to the reference number, the plaintiff filed the action in 2020 and thus in the transitional period, so that the provisions of Art. 67 of the Withdrawal Agreement are relevant. Consequently, companies would not have to provide security deposit for the costs of the proceedings in so-called old cases where the action (in the present case a nullity action) was filed by 31 December 2020. It remains unclear why the withdrawal agreement is not taken into account by the courts.

Temporal urgency for preliminary injunctions on a modified embodiment

02.08.2021|Comments Off on Temporal urgency for preliminary injunctions on a modified embodiment

Temporal urgency for preliminary injunctions on a modified embodiment In a recent decision (HRC Düsseldorf (2. Zivilsenat), decision of 27 May 2021 – 2 U 2/21; GRUR-RS 2021, 13946 - Insulinpumpe), [...]

Dr Peter Kather is panelist at the Federal Ministry of Justice and Consumer Protection Symposium on the topic “Patentability of Plants and Animals: Scope for Action and Need for Reform?”

20.07.2021|Comments Off on Dr Peter Kather is panelist at the Federal Ministry of Justice and Consumer Protection Symposium on the topic “Patentability of Plants and Animals: Scope for Action and Need for Reform?”

Dr Peter Kather is panelist at the Federal Ministry of Justice and Consumer Protection Symposium on the topic "Patentability of Plants and Animals: Scope for Action and Need for Reform?" On [...]

Federal Constitutional Court: Urgent applications against the Implementation Act on the Agreement on a Unified Patent Court dismissed: Constitutional complaints are inadmissible in the main proceedings

13.07.2021|Comments Off on Federal Constitutional Court: Urgent applications against the Implementation Act on the Agreement on a Unified Patent Court dismissed: Constitutional complaints are inadmissible in the main proceedings

Last Friday (09.07.2021), the German Federal Constitutional Court published its decision, which had been awaited for weeks, on the further constitutional complaints against the ratification of the UPC, the final building block for the [...]

Federal Constitutional Court clears path for UPC

12.07.2021|Comments Off on Federal Constitutional Court clears path for UPC

Federal Constitutional Court clears path for UPC In its decision of June 23, 2021 (Ref. 2 BvR 2216/20 and 2 BvR 2217/20), the Federal Constitutional Court rejected the applications for a [...]