The European Court of Justice terminated Dutch cross-border decisions with two judgments of July 13, 2006: Roche v Primus and GAT v LuK.
In short, GAT v LuK rules that the national court has no jurisdiction for crossborder claims if the validity of the invoked patent, consisting of national patents stemming from a European patent, is contested. This means that as long as no validity arguments are raised, a cross-border procedure can continue. It follows from Roche v Primus that cross-border jurisdiction based on Article 6 of Brussels-I, which grants foreign jurisdiction over connected cases, is not easily accepted.
The EJC stated that the separate cases concerned different defendants that related to different infringing activities and therefore would not concern one and the same case. Also the legal findings would be different since the national patents would be governed by national laws. The argument that this would lead to separate actions in separate jurisdictions and therefore to ‘irreconcilable judgments’ was rejected.
Both decisions were thought to have signalled the end of cross-border injunctions, until the Dutch court did grant a cross-border injunction in summary proceedings shortly after these EJC decisions. The Netherlands was, and is, unique in its judgments in interlocutory proceedings and repeatedly gave similar decisions; for example, in Bettacare v H3 and Fort Vale Engineering ltd v Pelican Worldwide B.V.
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cross-border injunctions, ECJ
