PIL instrument(s)

Case number and/or case name

AG Berlin-Wedding, 07.01.2013 – 70b C 4/11

ECLI

ECLI:DE:AGBEWE:2013:0107.70BC4.11.0A

Publication in law review

NJW-RR 2013, 895; IPRspr 2013, Nr 242, 520-523

Details of the court

Germany, First Instance

Articles referred to by the court

Date of the judgement

07 January 2013

Appeal history

CJEU's case law cited by the court

Summary

The German-based applicant requested the referring court to issue a European payment order against the French defendant due to unsettled claims (Art. 7 EPO). Shortly afterwards the AG Wedding issued the European order for payment requested and unsuccessfully attempted on two occasions to serve the order by post at the addresses provided by the applicant. Subsequently, the applicant provided another address to which the European order for payment concerned was served. More than half a year later, the defendant opposed the European order for payment issued against her. She argued that she had learned of the existence of that order only by chance, and that since 2009 she had no longer lived at the address where it had been served. The AG Wedding informed the defendant that her opposition was out of time and that, at that stage, it was possible only to apply for a review in accordance with Article 20 EPO. The defendant then lodged an application for a review. In those circumstances, the AG Wedding decided to stay the proceedings and to refer the following questions to the CJEU for a preliminary ruling: 1. Must the EPO be interpreted as meaning that a defendant may also apply for a review by the court of the European order for payment where the order for payment was not served on him or not effectively served on him? In those circumstances, may recourse be had, by analogy, in particular to Article 20(1) or Article 20(2) EPO? 2. If Question 1 is answered in the affirmative: If the order for payment was not served on him or not effectively served on him, must the defendant respect the time-limits in bringing his application for review? In that connection, must recourse be had in particular to the scheme established in Article 20(3) EPO? 3. Also if Question 1 is answered in the affirmative: What are the legal consequences for the procedure if the application for review is successful? May recourse be had in that connection, by analogy, in particular to Article 20(3) or Article 17(1) EPO?