All systems go for Dutch cross-border injunctions

It almost goes without saying that the Dutch courts have always been very lenient when it comes to assuming jurisdiction and granting cross-border injunctions. As we have mentioned before, the court in The Hague had been seemingly thwarted in the Solvay v Honeywell case.

The admissibility of this practice was questioned again and the Court of Justice of the European Union (CJEU) had the opportunity to rule on new questions. From the outset it was evident that the outcome of the case could either put an end to this practice or rule in favour of the Dutch courts and strengthen their competence. Either way, this decision would set clear lines.

The key facts of the case were as follows. Solvay, wishing to put an end to infringements of its European patents by the three Honeywell companies, sought provisional relief in the form of a cross-border injunction. Honeywell in turn raised the defence of invalidity of the national parts of the patent.

The court in The Hague found itself stuck on a spider’s web and referred questions to the CJEU for a preliminary ruling. Of particular relevance is the CJEU’s reasoning that the court before which the interim proceedings have been brought does not make a final decision on the validity of the patent invoked—it only makes an assessment as to how the court, which has jurisdiction under Article 22(4), would rule.

If there is a likelihood that the patent would be declared invalid, the court before which the interim proceedings have been brought will refuse to adopt the sought provisional measure

"if there is a likelihood that the patent would be declared invalid, the court before which the interim proceedings have been brought will refuse to adopt the sought provisional measure."

According to the court, a situation where two or more companies from different member states are separately accused of infringing the same national part of a European patent, could indeed lead to irreconcilable judgments. It also emphasised that it is for the referring court to assess the existence of such a risk, taking into account all the relevant information. The second question was rather more interesting. It is this question that determines the ambit of the competence of the Dutch court with regard to cross-border injunctions.

In essence, the CJEU had to answer whether Article 22(4) EEX would preclude Article 31 of that regulation. Article 22 determines that:

“Member states shall have exclusive jurisdiction [...] in proceedings concerned with the registration or validity of any European patent granted for that state”.

In fact, Article 31 has a different subject matter. It applies to member states other than those over which the courts have jurisdiction over the substance, whereas Article 22 concerns courts with jurisdiction over the substance.

If there is a likelihood that the patent would be declared invalid, the court before which the interim proceedings have been brought will refuse to adopt the sought provisional measure. In this way there is no risk of conflicting decisions, so Article 31 can be applied in these cases.

The CJEU also pointed out that “in circumstances such as those at issue”, Article 22(4) must be interpreted as not precluding Article 31.

This leaves room for discussion and further interpretation, although the outcome of this case is still striking. It has been clarified that even in cases where the defendant raises the invalidity of the national parts of a patent the Dutch court may still adopt the sought provisional relief. Therefore The Netherlands remains a highly attractive forum when seeking cross-border injunctions.