A guide to the UPC and the UP - Flipbook - Page 122
Brussels I Regulation (recast) on the Recognition and
Enforcement of Judgments
7-43
To give effect to the Court, the Brussels I Regulation (recast) was amended in May 2014 by
Regulation (EU) No 542/2014 so as to make the Court a “court common to the Member States”.
It applies as of 10 January 2015. The Brussels I Regulation (recast) is important as it is one of the
bases on which international jurisdiction of the Court is established, 62 it sets out the rules on lis
pendens and related actions as between the Court and national courts and ensures that
decisions of the Court are enforceable against parties in Member States which are not
Contracting Member States such as, most notably, Croatia, Poland and Spain.
Enforcement Directive
7-44
The Enforcement Directive is also relevant in relation to applicable law. Although the Directive is
not directly applicable, the Contracting Member States have already largely harmonised the
legal consequences of patent infringement and therefore the provisions in this Directive have,
or should have, become part of the national law. Likewise, arts 54 to 64, 67, 68 and 80 UPCA
comply with the Enforcement Directive. Although the Enforcement Directive will not be applied
directly, it may be used for interpretation of these articles of the UPCA. 63
7-45
It is likely that that the interpretation of such provisions will be consistent with the current
understanding of the provisions of the Enforcement Directive as interpreted by the CJEU. If the
CJEU construes any aspect of the Directive, this would seem also to be relevant in relation to the
equivalent provisions in the UPCA.
Other EU Directives mentioned in art.27 UPCA
7-46
Generally, art.27 UPCA concerns the limitations to the rights conferred by a patent. 64 Some of
the passages specifically refer to further directives, which thus have to be applied:
– Art.27(d) UPCA refers to the Directive on veterinary medicinal products, 65 specifically
art.13(6), and the Directive on medicinal products for human use, 66 specifically art.10(6)
establishing a defence to patent infringement for certain clinical trials; and
– Art.27(k) UPCA refers to the Directive on computer programs, 67 despite this being a measure
solely relating to copyright, specifically arts 5 and 6 relating to the provisions on
decompilation and interoperability.
62
63
64
65
66
67
art.31 UPCA. The other basis is the Lugano Convention, see paragraph 7-62. For further information on the jurisdiction of the
Court see chapter 6 (Jurisdiction, Competence and Forum Shopping).
See chapter 15 (Remedies) and chapter 16 (Provisional and Protective Measures).
See chapter 10 (Infringement of Unitary Patents (and European Patents Subject to the Court) – Substantive Law) paragraphs
10-44 to 10-66.
Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to
veterinary medicinal products, OJ No. L 311, 28.11.2001, p.1, including subsequent updates.
Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to
medicinal products for human use, OJ No. L 311, 28.11.2001, p.67, including subsequent updates.
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer
programs, OJ No. L 111, 5.5.2009, p.16.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 112
