As has been demonstrated repeatedly and all parties involved in UPC proceedings should be aware, the UPC sticks strictly to its deadline regime and is very hesitant to grant any extensions of procedural deadlines.
Such deadlines or missing such deadlines does come with consequences. In numerous cases the UPC has found that late filed submission and any included factual or legal argument may and will be disregarded for its final decision.
But besides simply disregarding a late filed argument, the UPC in certain circumstances can also issue decisions by default against either party covering the full extent of the respective request on the merits of the other side, even without an oral hearing.
LEGAL FRAMEWORK
The relevant provision for issuing a decision by default is Rule 355 of the Rules of Procedure (RoP). R. 355.1 RoP mentions two alternatives when a decision by default may be issued. For one a decision by default can be issued when specifically provided for in the RoP or in case a party does not take a specific step within the applicable time limit and secondly a decision by default can be taken when a party fails to appear at the oral hearing.
Besides the default, depending on who the decision by default is to be issued against, certain other requirements need to be met for the court to issue such a decision. In case the decision is to be issued against the respective claimant of the action, no additional requirement needs to be fulfilled. Conversely, if a decision by default is to be issued against the defendant, effectively granting the requested remedy, R. 355.2. and 3 RoP specify that a decision by default may only be given where the facts submitted by the claimant are sufficient to justify the remedy and at least the time limit for filing a defence has expired.
If the aforementioned requirements have been met and there are no other abnormal procedural circumstances, then issuing the decision still requires the court to exercise its discretion based on the specifics of the case.
To this end the Court of Appeal has already decided that exercising discretion must be based on the principle of fairness and equity and be reflective of the goal of conducting proceedings in the most efficient and effective manner as well as balance the interests of the parties. In this context, the Court of Appeal takes into account to the benefit of the party against whom the decision is taken, that the RoP provide for a special appeal against decisions by default in R. 356 RoP (CoA, UPC_CoA_363/2025, para. 23 and 25).
In the context of exercising discretion, the Paris Central Division has previously decided that, since the facts put forward by the claimant justified the remedy sought and generally the non-defaulting party is entitled to a speedy procedure without delay. The court more generally held that expeditious decisions are one of the aims of the UPC Agreement and that the legal framework of the UPC gives the defendant adequate means to justify the default and to appeal an unfavorable decision (CD Paris, UPC-CFI_412/2023, para 12). Thus, suggesting that in most cases there should be a strong indication in favor of granting the decision by default provided the relevant requirements are met.
Examples of relevant Defaults
- Failure to submit Statement of Defense / Appeal Response
The Düsseldorf and Munich Local Divisions have both previously decided that a default judgment can be issued in principle if the defendant fails to file a written statement of defense within the applicable (LD Düsseldorf, UPC-CFI_318/2025, para. 18; LD Munich, UPC_CFI_193/2024, p. 10, the finding was in part based on Article 37.1 of the Statute of the UPC explicitly mentioning this possibility).
The Court of Appeal has followed similar proceedings albeit based on R. 235.3 RoP. Thereby finding that a reasoned decision can be given on appeal if the respondent fails to lodge a statement of response. The Court of Appeal found that this reasoned decision is effectively a default decision. Hence, the possibility to file an application to set aside the decision according to R. 356.1 RoP (i.e. the remedy provided for default judgments under R. 355 RoP) also applies to reasoned decisions (CoA, UPC_CoA_363/2025, para. 23).
- Failure to provide Security for Costs
Another, quite important, example of decisions by default being issued by the UPC is where the court has requested the claimant to provide a security for costs (R. 158.5 RoP). Such a request can be filed by defendants in case the financial situation of the claimant is unclear, and any potential reimbursement claim thus potentially de facto unenforceable.
Several divisions of the UPC have already issued decisions finding that if such a security is not provided by the claimant in the set time limit, then a decision by default dismissing the complaint generally has to be issued. Since in those cases the decisions by default are issued against the claimant no assessment of the facts submitted will be necessary, but the default itself is already sufficient to justify the decision (R. 355.2 and 3 RoP are only applicable in case a decision by default is to be issued against the defendant, cf. CoA, UPC_CoA_363/2025, para. 16 subs; see also CD Milan, UPC_CFI_597/2024).
If at the same time a decision by default regarding a counterclaim by the defendant is requested, then failing to provide a security will also be sufficient default for that purpose. However, since for the purposes of the counterclaim the roles of defendant and claimant are reversed, in order for a decision by default to be issued for the respective counterclaim as well, the facts submitted by the defendant will have to be sufficient to justify the requested remedy.
For such cases the Court of Appeal held that issuing decisions by default ensures the effectiveness of security for costs ordered under R. 158 RoP. It is only under exceptional circumstances that the Court may derogate from this general rule, effectively making the exercise of discretion less relevant in such cases. The reference to the status quo or merits of the action is not sufficient to deviate from that general rule (CoA, UPC_CoA_363/2025, para. 24).