A guide to the UPC and the UP - Flipbook - Page 94
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Art.71b(3) second sentence provides that, for the Court to have jurisdiction, there must be
property belonging to the defendant in an EU Member State and a sufficient connection with
such Member State. Recital 7 Regulation (EU) No 542/2014 provides more detail on the
requirements set out in the proviso. It states that a dispute has a “sufficient connection”
with an EU Member State if the claimant is domiciled there or the evidence relating to the
dispute is available there. 53 Further, it states that when exercising jurisdiction under art.71b(3)
Brussels I Regulation (recast), the Court should have regard to the value of the property
belonging to the defendant. 54 It should not be insignificant and should be such as to make it
possible to enforce the judgment, at least in part, in a Contracting Member State. Having assets
in the jurisdiction of the Court means that issues of enforcement in ROW is avoided if those
third party states choose not to recognize the jurisdiction of the Court.
Summary of the Court’s jurisdiction
6-39
Drawing all these points on jurisdiction together, table 6-1 summarises when the Court may
have jurisdiction and when it does not in non-Contracting Member States. The question of
whether the Court’s jurisdiction extends beyond the Contracting Member States to other EPC
Contracting States is considered on the basis that the Court will accept jurisdiction in a scenario
similar to that in Solvay v Honeywell where there is a co-defendant domiciled in a Contracting
Member State. If the facts were similar to those in Roche v Primus, the Court’s jurisdiction would
not extend outside the Contracting Member States.
Table 6-1: Does the Court’s Jurisdiction Extend to Non-contracting
Member States?
Relief extends to …
Domicile of
defendant
Basis for Court’s
jurisdiction
EU Member States
not CMS
Lugano Convention
States
Other EPC
Contracting States
CMS
art.4 (domicile)
Y, but subject to
art.24(4)
Y, but subject to
art.22(4) LC
Y, but subject to
policy grounds*
art.35 (provisional
measures)
Y
Y
Y
art.7(2) (place of
infringement)
N
N
N
art.8(1) (joinder)
Y, but subject to
art.24(4)
Y, but subject to
art.22(4) LC
Y, but subject to
policy grounds*
art.35 (provisional
measures)
Y
Y
Y
art.5(3) LC (place of
infringement)
N
N
N
art.6(1) LC (joinder)
Y, but subject to
art.24(4)
Y, but subject to
art.22(4) LC
Y, but subject to
policy grounds*
EU not
CMS
Lugano
States
53
54
Following what is said in Wintersteiger AG v Products 4U Sondernmaschinenbau GmbH (C-523/10) ECLI:EU:C:2012:220 [33].
The travaux préparatoires refer to “assets” and “moveable assets” rather than property. The term should therefore probably
be given a broad meaning which could also include intellectual property.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 84
