Penalty payment (astreinte)

The astreinte is an ancillary financial penalty by which the court attaches to an obligation to do or not to do a sum payable for each period of delay or each breach established. Articles L. 131-1 et seq. of the Code of Civil Enforcement Procedures allow any court to order it, even of its own motion, and make it independent of damages.

Penalty payments in patent litigation

An order to cease the allegedly infringing acts is almost always accompanied by a penalty payment, both in interim proceedings under Article L. 615-3 of the Intellectual Property Code and on the merits. The measure also accompanies the recall of products, the disclosure of information and the publication of the decision. Its amount is set per day of delay or per product sold, which requires a carefully drafted operative part: the wording of the obligation determines what can later be liquidated.

Liquidation

A provisional astreinte is liquidated by the enforcement judge, who takes into account the debtor's conduct and the difficulties encountered in complying. A definitive astreinte, which must have been announced as such, can no longer be modified as to its rate. The creditor proves each breach, often through a bailiff's report, and the debtor may plead an external cause. An obligation framed in vague terms is difficult to liquidate, however serious the conduct.

Penalty payments before the UPC

The Unified Patent Court has an equivalent mechanism. An injunction granted under Article 63 of the Agreement may be accompanied by a penalty payment, and Article 82 allows failure to comply with a decision to be sanctioned by a penalty payable to the Court. The territorial reach of the measure, extending to all the States covered, makes it a heavier lever than its national equivalent, particularly when it accompanies a preliminary injunction.

Key points

A penalty payment is only as effective as the precision of the obligation it secures. The claimant is well advised to draft the operative part it seeks itself, product by product. The defendant, for its part, should document the steps taken from the moment the decision is handed down, since liquidation turns on its conduct.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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