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 Case Law
Rule 265: Withdrawal

Court of Appeal - Luxembourg (LU), Order dated 15/01/2025, Avago Technologies International Sales Pte. Limited (Case/ Registry number: App_68614/2024, ORD_68790/2024)
Example of decision on the admissibility of withdrawing an action during appeal proceedings: "11. As long as no final decision has been made on an action, the plaintiff may request the withdrawal of his action in accordance with R.265.1 of the Rules of Procedure. The application for withdrawal is not permitted if the other party has a legitimate interest in the court deciding on the action.
Jurisdiction of the court of appeal to decide on the withdrawal
12. The court of appeal is responsible for deciding on the admission of applications for withdrawal. The withdrawal of the action terminates the appeal proceedings in the case in which an appeal has been lodged, as is the case here. Therefore, the Court of Appeal is authorised to declare the proceedings terminated in accordance with R. 265.2 (a) of the Code of Procedure if the withdrawal is allowed and to make a decision on costs.
Admissibility of the withdrawal
13. The decision of the Court of First Instance does not preclude the admissibility of the withdrawal because it has not become final and therefore cannot be regarded as a final decision within the meaning of R.265.1 RoP Withdrawal of the action is only inadmissible after the final decision has become final. Whether a withdrawal after a final decision of the court of first instance that has not become final always requires the consent of the opposing party does not need to be decided here. This is because the relevant consents have been obtained. The withdrawals are therefore admissible."

Court of Appeal - Luxembourg (LU), Order dated 04/06/2024, Nera Innovations Ltd. (Case/ Registry number: UPC_CoA_205/2024, ORD_31569/2024)
Example of decision on the application to withdraw an appeal in relation to two of the respondents: “14. It is clear from the wording of R.265 ROP that it is primarily formulated with a view to a complete withdrawal of the action. The provision does not distinguish between proceedings at first instance and appeal proceedings. Nor does it distinguish between procedural appeals and appeals on the merits. The provision does not exclude the possibility that withdrawal may be requested for each category of action or each stage of the proceedings. The provision is therefore broadly worded, which makes sense in civil proceedings.
15. However, withdrawal is subject to the condition that the rights of the appellant are safeguarded and the proceedings are conducted properly. According to the wording of R.265 ROP, it is at the discretion of the court to decide on an application for withdrawal ("The court shall decide on the application..." and "If the withdrawal is allowed"). It is clearly stipulated that the other party must be heard ("after hearing the other party") and that the interests of the other party must be taken into account ("the application for withdrawal shall not be allowed if the other party has a legitimate interest in the court deciding the action").
16. R.265 ROP does not expressly provide for partial withdrawals, i.e. withdrawals in respect of one or two of several defendants or appellants.
22. For all these reasons, Xiaomi NL and Xiaomi DE have an interest in the present case in defending themselves in relation to the contested application for service. Allowing the partial withdrawal would lead to a denial of Xiaomi DE’s and Xiaomi NL’s right to be heard. The application for withdrawal of the appeal in respect of Xiaomi NL and Xiaomi DE must be rejected.”

Court of Appeal - Luxembourg (LU), Order dated 04/06/2024, Daedalus Prime LLC (Case/ Registry number: UPC_CoA_183/2024, ORD_31567/2024)
Example of decision on the application to withdraw an appeal in relation to two of the respondents: “20. When an appellant applies to withdraw an appeal in relation to one or two of several respondents, the Court of Appeal decides on the admissibility and legal consequences of such an application. Whether an appeal can be withdrawn in relation to one or two of several respondents would depend on the circumstances of the case. Although there may be situations when a withdrawal of an appeal in relation to one or two of several respondents will be of mutual interest and simplify the proceedings, there are other situations when legitimate interests and the proper conduct of proceedings requires that the respondents remain in the proceedings. The view of the respondent itself is of course a factor to consider here.”

Court of First Instance - Nordic Baltic Regional Division, Order dated 08/09/2023, OCADO INNOVATION LIMITED v. AUTOSTORE AS (Case number UPC_CFI_11/2023, ORD_459791/2023)
Example of decision granting withdrawal from the procedure at the applicant’s request: “In these proceedings, the Claimant has withdrawn its action before the closure of the written procedure and the Defendants have confirmed the settlement and their agreement to the withdrawal of the action. Therefore, the proceedings shall be declared closed and the decision shall be entered on the register. Since the parties have agreed to and prefer that the Court does not issue an order as to their costs in these proceedings, the Court will refrain from issuing such an order.”