Breaking news from IPCopy (with a shout-out to the eagle-eyed Giles Parsons of Browne Jacobson for the heads-up): The European Commission has adopted the Proposal for a Regulation amending Regulation No 1215/2012 (the ‘Brussels I’ regulation). This amendment has been eagerly anticipated by Unitary Patent spotters, and is necessary to bring the Agreement on the Unified Patent Court into effect.
The full proposal, 2013/0268 (COD), can be found here. IPCopy notes that the Proposal states that ‘Regulation (EU) No 1215/2012 will enter into application on 10 January 2015′. Whatever else may happen with ratification of the Unitary Patent Court Agreement in the next couple of years, the Unitary Patent certainly can’t kick in until 10 January 2015, so anyone who had any lingering thoughts of getting a unitary patent in 2014 can abandon them once and for all here!
The proposed amendments aim to achieve the following objectives:
1. Clarify in the text of the Regulation that the Unified Patent Court and the Benelux Court of Justice are ‘courts’ within the meaning of the Brussels I Regulation;
2. Clarify the operation of the rules on jurisdiction with respect to the Unified Patent Court and the Benelux Court of Justice insofar as defendants domiciled in Member States are concerned. Create uniform rules for the international jurisdiction vis-à-vis third State defendants in proceedings against such defendants brought in the Unified Patent Court and Benelux Court of Justice in situations where the Brussels I Regulation does not itself provide for such rules but refers to national law;
3. Define the application of the rules on lis pendens and related actions in relation to the Unified Patent Court and the Benelux Court of Justice on the one hand and the national courts of Member States which are not Contracting Party to the respective international agreements on the other hand. Define also the operation of these rules during the transitional period referred to in Article 83(1) UPC Agreement; and
4. Clarify the operation of the rules on recognition and enforcement in the relations between Member States which are and Member States which are not Contracting Parties to the respective international agreements.
The actual amendments proposed are:
1) An addition to Article 1 as follows:
“Uniform jurisdiction rules should also apply regardless of the defendant’s domicile in cases where courts common to several Member States exercise jurisdiction in matters coming within the scope of application of this Regulation“
2) New Articles 71 a, b, c and d that address each of the above objectives in turn:
1. For the purposes of this Regulation, a court common to several Member States (a “common court”) shall be a court of a Member State when, pursuing to the agreement establishing it, it exercises jurisdiction in civil and commercial matters within the meaning of this Regulation.
2. For the purposes of this Regulation, the following shall each be a common court:
(a) the Unified Patent Court established by the Agreement on a Unified Patent Court signed on 19 February 2013 (the “UPC Agreement”);
(b) the Benelux Court of Justice established by the Treaty of 31 March 1965 concerning the establishment and statute of a Benelux Court of Justice (the “Benelux Agreement”).
The jurisdiction of a common court shall be determined as follows:
1. The common court shall have jurisdiction where, under this Regulation, the courts of a Member State party to an agreement establishing a common court have
jurisdiction in a matter governed by that agreement.
2. Where the defendant is not domiciled in a Member State, and this Regulation does not otherwise confer jurisdiction over him, the provisions of Chapter II shall apply as if the defendant was domiciled in a Member State. Article 35 shall apply even if the courts of non-Member States have jurisdiction as to the substance of the matter.
3. Where the defendant is not domiciled in a Member State and no court of a Member State has jurisdiction under this Regulation, the defendant may be sued in the common court if:
a) property belonging to the defendant is located in a Member State party to the agreement establishing the common court;
b) the value of the property is not insignificant compared to the value of the claim;
c) the dispute has a sufficient connection with any Member State party to the agreement establishing the common court.
1. Articles 29 to 32 shall apply when proceedings are brought in a common court and in a court of a Member State not party to the agreement establishing that common court.
2. Articles 29 to 32 shall apply where during the transitional period referred to in Art. 83(1) of the UPC Agreement proceedings are brought in the Unified Patent Court and in a court of a Member State party to the UPC Agreement.
In matters of recognition and enforcement, this Regulation shall apply to the recognition and enforcement of
a) judgments given by the Unified Patent Court or the Benelux Court of Justice which need to be recognised and enforced in Member States which are not Contracting Parties to the UPC or Benelux Agreements; and
b) judgments given by the courts of Member States which are not Contracting Parties to the UPC or Benelux Agreements which need to be recognised and enforced in Member States Contracting Parties to such Agreements.
IPCopy will be keeping an eye out on developments, and will let you know when there is more to report!
Emily Weal 31 July 2013