Court of Appeal confirms that internal UPC competence is independent of Brussels I recast

Court of Appeal confirms that internal UPC competence is independent of Brussels I recast

Barco v Yealink — Court of Appeal, 28 November 2025 (UPC_CoA_317/2025; UPC_CoA_376/2025)

Introduction

In an order issued on 28 November 2025, the Court of Appeal addressed two central issues in provisional-measures practice: the territorial competence of the seised local division and urgency under R. 211.4 RoP.
The judgment provides some interesting statements on the relationship between UPC internal competence (Art. 33 UPCA) and international jurisdiction under Brussels I Recast – and holds that Art. 33 UPCA (only) governs the internal allocation of cases within the UPC, and that Brussels I Recast plays no role in determining which division of the Court of First Instance is competent.

The Brussels Local Division had held itself competent under Art. 33(1)(a) UPCA and dismissed the application for provisional measures for lack of urgency. Both competence and urgency were challenged on appeal. The Court of Appeal upheld the Local Division’s findings and clarified several fundamental principles.

Internal competence under Art. 33 UPCA is not governed by Brussels I Recast

One central issue in the appeal concerned whether Art. 33(1) UPCA must be interpreted in light of the restrictive CJEU case law on Art. 7(2) Brussels I Recast. Yealink argued that competence based on the place of infringement should be construed restrictively as a “special jurisdiction rule”, mirroring the CJEU’s approach.

The Court of Appeal rejected this argument and held that Art. 33 UPCA regulates only the internal allocation of proceedings among UPC divisions. It is not derived from, nor constrained by, Brussels I Recast:

“Competence of the divisions of the Court of First Instance, regulated in Art. 33 UPCA, is a UPC internal matter.”

Yealink argued further, that competence based on the defendant’s domicile should take precedence over competence based on the place of infringement. The Court rejected this categorically:

“For the purpose of establishing the competence of a local division, there is no hierarchy between competence based on the place where the actual or threatened infringement has occurred or may occur in Art. 33(1)(a) UPCA, and competence based on the residence or principal place of business of the defendant in Art. 33(1)(b) UPCA.”

Competence under either alternative is fully valid; the claimant is free to choose.

No need for defendant-specific connecting factors

An important practical clarification concerns multi-defendant proceedings. Yealink argued that each defendant must individually be shown to have committed infringing acts in the territory of the local division.

The Court disagreed:

“There is no need to look for connecting factors in the territory of the local division seised in relation to each defendant to establish competence.”

It is sufficient that the alleged infringing products can be obtained in the Contracting Member State hosting the seised local division, e.g. through an accessible website or test purchase. Questions of which corporate entity is responsible are matters for the merits stage, not competence.

The Court emphasised that competence inquiries must not pre-decide the case:

“The establishment of whether a first instance division is competent should not be based on a comprehensive evaluation of the evidence… Rather, the Court will take a cursory look at the parties’ allegations and evidence.”

This reinforces that competence assessments must avoid prejudging infringement or validity.

Urgency: unreasonable delay between grant and application

The Court of Appeal upheld the Local Division’s finding that Barco had not acted with the necessary urgency.

Key points include:

• Delay begins when the proprietor becomes aware of the alleged infringement and has, or should have obtained, sufficient evidence to file an application under R. 206.2 RoP.
• Barco knew of the allegedly infringing devices on 12 June 2024, the date of publication of the mention of grant.
• Barco could – and should – have purchased the devices immediately, analysed them, and filed the application by 15 July 2024, “or a few days later”. Filing on 2 October 2024 constituted an unreasonable delay.
• Potential product changes do not justify delaying a provisional-measures request.

The application was therefore correctly dismissed.

Our key takeaways

• Art. 33 UPCA governs only the internal competence of UPC divisions; Brussels I Recast plays no role in determining which division is competent.
• No hierarchy exists between competence based on place of infringement and defendant’s domicile; the claimant may choose either.
• Test purchases and product availability in the Contracting Member State suffice to establish competence; no defendant-specific infringement evidence is required at that stage.
• Competence assessments rely on a cursory review, avoiding any preliminary decisions on the merits.
• Urgency remains strict: delays between grant and filing can be fatal. 

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