RULE 10 - Stages of the proceedings (inter partes proceedings)
1- Rule 10 is based on Article 52 of the Agreement. More precisely, the Agreement provides in Art 52-1 for the basics of the proceedings before the Court, including therefore the Court of First Instance and defines three stages of this proceedings consisting of a written procedure, an interim procedure and an oral procedure.
2- Even if Art 52-1 of the Agreement also states that « all procedures shall be organized in a flexible and balanced manner », it seems clear that the proceedings must include the three stages indicated. It also seems reasonable to assume that the chronological order of those three stages will follow the enumeration given in art 52-1. Therefore, an exchange of written pleadings will be followed by an « interim » procedure, the details of which are defined in the Rules. And the oral procedure will be the last stage.
3- However, when it comes to the third stage of the oral procedure, some confusion is found in the Agreement since Art 52-3 provides that the Court may, with the agreement of the parties, « dispense with the oral hearing ». This statement seems to introduce a difference between a compulsory oral procedure and an optional oral hearing. The oral procedure would then include more than an oral hearing ? This should best be interpreted in that any procedure following the end of the interim procedure and up to the issuance of the decision on the merit is defined by the Agreement as « the oral procedure », even if no oral hearing is finally organized.
4- Confirmation and precisions for the interim and oral procedures in inter partes proceedings are given in Rule 10, which is directed exclusively to inter partes proceedings (ex parte proceedings is defined in Rule 85).
5- Concerning the interim procedure, Rule 10(b) provides that an « interim conference » may be held with the parties. This opens a possibility of oral presentation of arguments and evidence by the parties before the Court, even if this possibility remains an option (at the discretion of the Court as stated in Rule 101-1).
6- Concerning the oral procedure, Rule 10(c) mentions only two possibilities of dispensing from the oral hearing :
The first possibility is where both parties have informed the Registry that they do not wish to be present at the oral hearing (Rule 116-1). In such a situation, an oral hearing will be held and the Court shall take a decision on the merits on the basis of the pleadings and evidence submitted beforehand by the parties (Rule 117).
The second possibility is where both parties agree not to have an oral hearing. In such a situation, according to Art 52-3 of the Agreement, the Court may dispense with the oral hearing. This second possibility to dispense with the oral hearing necessitates therefore the agreement of all the parties and of the Court. If no oral hearing is held, the Court will most probably take a decision on the merits on the basis of the pleadings and evidence submitted beforehand by the parties, in a similar way as when an oral hearing is held without the presence of the parties.
7- Rule 10 also mentions the procedure for the award of damages and the procedure for cost decisions.
Since those additional procedures are not expressly mentioned in Art 52 of the Agreement, they must be considered as optional procedures. Rule 125 provides that the determination of the amount of damages may be the subject of separate proceedings, which therefore also means that such separate proceedings is an option.
8- In fact, the plaintiff in an infringement action may request that the decision on the merits include an order for payment of damages (as indicated in Rule 118-1). This in practice would be highly preferable to the separate proceedings for the determination of damages as defined in Rules 125 to 140. A separate proceedings for the determination of damages should only be provided in complex cases and particularly if the laying open of the books of one party is felt necessary (in which case the procedure should follow Rules 141 to 143).
9- In a similar way, it would be appropriate in many cases that the decision on the merits would include an order for reimbursement of costs, thus avoiding a separate proceedings for cost decision defined in Rules 150 to 157. Rule 150 provides that a cost decision may be the subject of separate proceedings, which therefore also means that such separate proceedings is an option.
10- Rule 118-5 relating to the decision on the merits, is somewhat unclear on this point and only mentions « the principle on the obligation to bear legal costs » on which the Court should take a decision.
Legal costs are defined in Article 69 of the Agreement. The Court may order that costs be apportioned equitably or that the parties bear their own costs. A party should bear any unnecessary costs it has caused to Court or another party.
At the request of the defendant, the Court may order the applicant to provide adequate security for the legal costs, in particular in the cases referred to in Articles 59 to 62 (Order to produce evidence, Order to preserve evidence and to inspect premises, Freezing orders or Provisional and protective measures).