Replace 05 03 2024 see in the meantime concurring views by Lydia Lundstedt right here.
Emiliou AG opined the day earlier than yesterday in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB. I flagged the case and mentioned its context right here.
The case in essence issues two points: the extent of the unique jurisdiction of the Article 24(4) courtroom in infringement (versus direct invalidity actions); and the query whether or not A24 works reflexively: ie whether or not the give up of jurisdiction must also be utilized in circumstances the place the A24(4) courtroom isn’t in an EU Member State.
The AG’s in depth contextualisation has the advantage of summarising established authority on Article 24(4). This enables the AG for example to replicate on the oddity of GAT v Luk. Regardless of the ‘object of the proceedings’ usually being infringement of mental property rights, the CJEU held in that case that the second the validity of the patent (or different related mental property rights) is at subject, unique jurisdiction of the A24(4) courtroom is triggered. The CJEU moderately unsuccessfully tried to justify the excellence with its strategy on the rest of A24 eg in CJEU BVG.
The AG justifiably indicators his disapproval with the fall-out of the GAT v Luk authority, seeing ia that (54)
the judgment in GAT makes the consolidation of infringement claims regarding the totally different ‘components’ of a European patent earlier than these courts an unattractive possibility. It encourages patent holders to begin separate proceedings within the varied States of registration of these ‘components’ as a substitute, since, not less than, it’s sure that the courts of these States are competent to rule on each the infringement and validity of ‘their half’ (as defined in factors 26, 28 and 29 above). This creates, in flip, a danger that totally different courts take contradictory views on the identical infringement dispute.
Additionally word (59) the robust rebuke of the GAT v LUK line when it comes to the very nature of personal worldwide regulation
…such concerns don’t reveal why, with respect to proceedings involved with the registration or validity of patents, these courts ought to have jurisdiction to the exclusion of all others. Specifically, the patent regulation of the State of registration isn’t so distinctive that solely the courts of that State would have the flexibility to grasp it. Whereas it might be more durable for them to take action, the courts of one other Member State are completely able to making use of such a overseas regulation. To suggest the opposite can be tantamount to questioning the very foundations of the Brussels regime (and the complete discipline of personal worldwide regulation). …
Ia (64) the AG nonetheless factors out that sadly any name for the CJEU to reverse is futile seeing as Brussels Ia has codified it.
The extent of the unique jurisdiction of the Article 24(4) courtroom in infringement proceedings.
Ia (37) the remaining unclarity subsequently lies within the GAT v Luk penalties. Nationwide apply varies. Some courts apply a keep of the infringement proceedings till the A24(4) courtroom holds on validity, after which insist on a return to the ‘infringement’ courtroom: the “slender studying” of GAT v LUK. Others perform an entire referral of the case, together with infringement, to the A24(4) courtroom: the “broad” studying”.
In each of those situations the keep or referral determination is precarious (73) for there isn’t a process below EU regulation for such referral or mutually revered short-term keep: there isn’t a assure the courtroom referred to will act as the primary seized courtroom may choose.
The AG is in favour of the slender studying: (69) this suits with the distinctive nature of A24; (71) it serves predictability (an echo of A24(2) in BVG): within the broad studying the attain of the jurisdiction of the courtroom seized would rely upon the invalidity raised or not raised as a defence; (73) the chance below nationwide civil process guidelines to lift an invalidity defence even for the primary time upon enchantment would result in a continuing risk of torpedoing and as soon as the proceedings stayed, the courtroom first seized loses all grip on the declare and (74) by the point the case returns in any respect, claimant’s case in infringement proceedings began afresh could meet with statutes of limitation.
(77) ff bifurcation or because the AG calls it the ‘cut up’ within the proceedings is way from ideally suited, as (78) is the overall implication of GAT v LUK that it types an exception to the precept that factors of defence ought to not affect on jurisdiction, or the reliance on nationwide CPR, the delays and so forth. But the AG calls this route even when ‘lower than ideally suited’, the ‘lesser of two evils’.
He then presents sensible tips, in search of to provide these a basis in (88) the TRIPS Settlement, the discovering in CJEU C‑365/88 Hagen that nationwide CPR should not affect the effet utile of EU regulation, the TRIPS Settlement, Directive 2004/48, on the patent holder aspect the appropriate to an efficient treatment and, on the alleged infringer’s aspect, the rights of defence, each protected below Article 47 of the Constitution.
(92) the AG suggests specifically that courts ought to solely think about granting a keep the place that problem has a real prospect of success (making an allowance for the presumption of validity following the patent workplace’s evaluation).
Basically I’ve a lot sympathy for the AG’s slender studying of GAT v LUK (and one would have hoped the overview of Brussels Ia may set off a proposal to solidify it within the Regulation). I’m additionally genuinely curious to see how far the CJEU will go in choosing up a few of the tips.
The reflexivity subject.
The CJEU 3 decide chamber in IRNova f FLIR was very transient on this query and answered it promptly within the unfavorable. The AG (97) agrees the reply is clear within the sense that BIa can’t instruct third States courts to listen to particular circumstances.
Not like the AG nonetheless in my opinion the reply to the query that ‘in essence’ (98) is implied (whether or not A24(4) deprives Member State courts of the ability to adjudicate the validity of third-State patents in the identical means that these courts are disadvantaged with respect to patents registered in different Member States) is, rebus sic stantibus, additionally apparent. Particularly that except the circumstances of Articles 33-34 (the discussion board non conveniens “mild” regime) are fulfilled, Article 4 domicile jurisdiction merely stands. Or because the Fee places it (113), the Courts are “certain” to train A4 jurisdiction save in a slender set of circumstances (i.e. the A33-34 set).
The AG (108) refers to IRNova to counsel A24-25 BIa can’t apply, as such, to dispute having connections of the type envisioned therein with third States.
The AG posits ia that (117) BIa was not designed to bear in mind circumstances comparable to these and that the CJEU subsequently ought to fill the hole. Initially I consider that is incorrect. A4 BIa arguably is a effectively documented specific coverage selection to simply accept EU courts jurisdiction in precept even over issues prima facie strongly linked with territory and so forth out off the EU. Additional, that solely A33-34 (after which solely within the recital of the Regulation) entertain the chance to bear in mind unique non-EU courts jurisdiction is a really robust a contrario statutory argument in opposition to CJEU freewheeling. The suggestion (118) borrowed from Briggs and Mills that “nothing within the wording of these provisions or within the associated recitals signifies that they’re meant to manage exhaustively the chance for Member State courts to say no jurisdiction in favour of the courts of third States”, echoes Ferrexpo and imho is just flawed, and neither Coreck Maritime (121) nor Mahamdia (122) have displaced Owusu.
The AG’s hyperlink (128) to public worldwide regulation and the overall enchantment of the Moçambique rule are attention-grabbing however actually simply too distant in my opinion from Brussels Ia’s travaux and statutory provisions and the AG doesn’t I consider correctly current A33-34’s travaux or intention (139) ff.
The “implicit derogation from the necessary impact of Article 4(1)” BIa which the AG posits (147) ff for each A24 and A25 (selection of courtroom) jurisdiction, even construed as a “slender discretion” (159) ff, is a most optimistic view on inviting the CJEU to rewrite Brussels Ia.
In conclusion, whereas the CJEU is prone to observe the AG on the slender studying of A24(4), I might wager it’ll succinctly reject the arguably contra legem reflexive impact development. However then as I’ve stated earlier than, I’m not a betting man.
Geert.
EU Personal Worldwide Regulation, 4th ed. 2024, 2.217 ff.
