A Protective letter is in its essence a statement of reasons why an application for provisional measure(s) should be rejected. Hence, lodging a Protective letter is relevant, if you consider it likely that your business will be met with an application for an ex parte provisional measure.

The possibility of filing a Protective letter to the UPC follows from Rule 207 of the UPC Rules of Procedure. Pursuant to this rule, any natural or legal person who considers it likely that in the near future an application for provisional measures will be lodged against him as a defendant, may file a Protective letter.

Where an application for exparte provisional measure(s) is in fact lodged, the Protective letter will be presented to the judge(s) handling the application. The judge(s) will be obligated to consider the Protective letter in determining, if the application can be processed and the case continue without informing the defendant. In this regard, it is worth noticing that a copy of the Protective letter will be forwarded to the applicant.

Consequently, Protective letters provide potential defendants with the chance of defence in cases where provisional measures are pursued ex parte. Compared to the nature of ex parte decisions, where the defendants’ fundamental right to be heard is basically neglected, Protective letters provide defendants with a right of defence, although limited, in ex parte cases.