Because the UPC is a court common to the contracting Member States party to the UPC Agreement, the issue of the language of proceedings is indisputably important.
Indeed, the UPC’s language regime has become a political football in the negotiation process of the UPC Agreement—with Italy and Spain (unsuccessfully) seeking to have the Court of Justice of the European Union rule against Council Decision 2011/167/EU of 10 March 2011 authorizing the use of the “enhanced cooperation” procedure to create the unitary patent and Regulation (EU) 1260/2012 establishing the language regime of the UPC. Despite Spain’s and Italy’s objections, the UPC Agreement contains a complex set of applicable rules dealing with language. In the following, we provide an overview of the main rules concerning the language of UPC provisions.
In a nutshell, pursuant to Articles 49 and 50 UPC Agreement, in the Court of First Instance, before the Local and Regional Division, the main rule will be to use the official language or one of the official languages of the Contracting Member State where the Local Division is located or the official language(s) designated by the Contracting Member States sharing a Regional Division.
The language of proceedings in the Central Division shall be the language in which the patent was granted (English, French, or German).
The language of proceedings before the Court of Appeals shall be the language of the proceedings before the Court of First Instance.
However, there are exceptions to the main rule:
1. Before Local and Regional Divisions:
- a Contracting Member State may designate one or more of the official languages of the European Patent Office in addition to or in place of its official language(s) as the language of proceedings of its Division;
- the parties may agree to use the language in which the patent was granted, subject to approval by the competent panel. If the panel does not approve the parties’ choice, the parties may request that the case be referred to the Central Division;
- with the agreement of the parties, the competent panel of the Court of First Instance may decide, “on grounds of convenience and fairness” to use the language of the patent; and
- at the request of one of the parties and after having heard the other parties and the competent panel, the President of the Court of First Instance may decide “on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant” to use the language of the patent.
2. Before the Court of Appeals:
- the parties may agree to use the language in which the patent was granted as the language of proceedings;
- In exceptional cases and to the extent deemed appropriate, the Court of Appeals may decide that another official language of a Contracting Member State shall be the language for all or part of the proceedings, subject to agreement by the parties.
And what about translations? Generally, every document will need to be translated into the language of the proceedings. The party submitting the document will bear the translation costs. However, the cost may be reimbursed by the losing party (Rule 150 para. 1 of the Rules of Procedure of the Unified Patent Court, as entered into force on September 1, 2022—full text of the Rules of Procedure is accessible here). Any panel of the Court of First Instance and the Court of Appeals may, to the extent deemed appropriate, dispense with translation requirements (see Article 51 para. 1 UPC Agreement).
In certain circumstances when an infringement action is brought before the Central Division of the Court of First Instance, a defendant with residence or place of business in a Contracting Member State shall have the right to obtain translations of relevant documents in the language of the Member State of residence or place of business. The costs shall be covered by the plaintiff (see Article 51 para. 3 UPC Agreement).
Article 49.5 UPC Agreement provides that when the President of the Court of First Instance (at the request of one of the parties and after having heard the other parties and the competent panel) has decided to use the language in which the patent was granted as the language of the proceedings, the president shall also assess the need for specific translation and interpretation arrangements.