Appellant v Amycel (CoA, UPC_CoA_935/2025, 2 November 2026)

Dhenne Avocats · 4 November 2026

Our analysis

Summary

In a decision of 2 November 2026 (UPC_CoA_935/2025), the Court of Appeal, presided over by Klaus Grabinski, sets aside the decision by default given on 21 October 2025 by The Hague Local Division against a defendant established in Poland, together with the order of 9 December 2025 declaring his application to set it aside inadmissible. It allows the application under Rule 356 and refers the case back to the same panel for the written procedure to continue. Service of the statement of claim, however, is held valid.

Facts and procedure

Amycel, proprietor of EP 1 993 350 on a brown mushroom strain, alleges that the defendant markets the “Cayene” strain. After a preliminary injunction granted in 2024, it brought the action on the merits on 30 August 2024. The Registry’s registered letters having been returned unopened, the judge-rapporteur recognised as good service, by order of 19 December 2024 (Rule 275), delivery by a private carrier instructed by a Dutch bailiff, and deemed the statement of claim served on 25 November 2024, the date on which the package was refused.

The statement of defence, filed on 4 March 2025 with an application for re-establishment based on the representative’s illness, was disregarded on 1 April 2025. The decision by default of 21 October 2025 granted a permanent injunction and an interim award of EUR 50,000. On the application to set it aside, the Division declared it inadmissible on 9 December 2025, holding that the defendant had already been put on notice, and of its own motion rectified the information on remedies so as to refer to an appeal.

Question

Was service valid, should the defendant have been relieved from the late filing, and could the application to set aside the decision by default be declared inadmissible or dismissed?

Decision

The Court first upholds service. The Registry’s attempts by registered letter, a method provided for by Regulation (EU) 2020/1784, opened the way to Rule 275. An alternative method authorised by the Court need not be one prescribed by the internal law of the State of destination, it must merely not be contrary to that law, and delivery by a private postal operator is permitted by Article 18 and Recital 29 of the Regulation. Deemed service and actual service are distinct concepts, but delivery to the defendant’s residence suffices to establish the latter under Rule 277(b), and a later refusal outside Article 12 of the Regulation does not undo it.

The late filing of the statement of defence fell under Rule 9.3(a), not Rule 320 (Angelalign v Align). The Division therefore erred, without consequence, since the Court itself refuses a retrospective extension: neither the Court nor the other party was informed without delay of the representative’s illness, although he had known the deadline since December 2024.

By contrast, the rectification under Rule 353 substituted a new legal assessment for the one expressed in the decision, which goes beyond clerical mistakes and obvious slips. An application complying with Rule 356.2 must be allowed, the explanation for the default not being a condition of excusability. Only an express and clear notice, given in an earlier decision by default, can make a further decision by default final, which the general warnings in the earlier orders did not do. As the written procedure was never conducted inter partes, the Court exceptionally refers the case back to the same Hague panel and reserves costs.

Key points for practice

• Delivery of a statement of claim to the defendant’s residence in another Member State, with translations and Form L, amounts to actual service even if the package is later refused outside Article 12 of Regulation 2020/1784.
• Late filing of a written pleading in pending proceedings is governed by the extension mechanism of Rule 9.3(a), which requires the Court to be informed of the impediment without delay.
• A first decision by default can always be set aside by an application complying with Rule 356.2, without proof of absence of fault.
• To close that route for the future, the claimant must obtain an express notice that any further decision by default will be final.

Provisions applied

UPC Agreement

Article 75(1) and Article 37 of the Statute

Rules of Procedure

Rules 9.3(a), 23, 242.2(b), 243.1, 274, 275, 277, 320, 353 and 356

Regulation (EU) 2020/1784

Articles 12, 18 and 22, Recital 29

Case law cited

NEC v TCL (Court of Appeal, UPC_CoA_69/2024 and UPC_CoA_70/2024, 29 July 2024), Microsoft v Suinno (Court of Appeal, UPC_CoA_363/2025, 21 August 2025), Angelalign v Align Technology (Court of Appeal, UPC_CoA_37/2026, 10 March 2026), Fujifilm v Kodak (Court of Appeal, 13 July 2026).

Related decisions

• The Hague Local Division, 21 October 2025, Amycel: decision by default set aside
• Court of Appeal, 16 January 2026: first application for suspensive effect rejected
• Court of Appeal, 24 March 2026: second application for suspensive effect inadmissible
• Court of Appeal, 10 March 2026, Angelalign v Align: interplay between Rules 9.3(a) and 320

Prepared by Dhenne Avocats from the official decision, consulted on 4 November 2026. The database is updated every week, on Friday. Only the official text is authoritative.