EU Commission publishes Proposal of amendend Brussels I Regulation for ensuring Enforcement of UPC Judgements

In this earlier posting we discussed the compatibility of the Unified Patent Court Agreement (UPCA)  with the Acquis Communautaire of the European Union. One of those aspects was an adaption of the Brussels I Regulation (Ref 1215/2012), which ensures recognition and enforcement of national court judgements in other EU member states (see also here and here). Article 89(1) UPCA requires that an adapted Brussels I Regulation entered into force before the UPCA can itself enter into force.

Thus, the task is to implement the Unified Patent Court as a court common to a subset of EU member states and subject to the same obligations under EU law as any other national court. A similar situation applies to the Benelux Court of Justice. As this court up to now only provided preliminary rulings on interpretation of the national law of Belgium, The Netherlands and Luxembourg, it is now receiving new jurisdictional competences from the national courts of those three countries, thus giving cause to an adaptation of the Brussels I Regulation as well.   

As the Brussels I Regulation up to now only relates to EU-wide recognition of civil and commercial judgements of  national courts, it is apparent that a mechanism is required to ensure recognition of UPC judgements among the EU member states.   

Now the EU Commission has issued a proposal for an amendment (COM(2013) 554 final) to clarify how the jurisdictional rules of Brussels I will work in the context of the UPCA and should be applied in relations between EU and UPC Member States (see press release).

The introduction of the proposal summarises the aims as follows:

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 amendet Brussels I Regulation will include new Articles 71a to 71d, where Article 71a subsumes the Unified Patent Court (UPC) and the Benelux Court of Justice (BCJ) under the Brussels I regime:

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 [...]; (b) the Benelux Court of Justice [...]

Proposed Art. 71b(1) ensures that the UPC and BCJ will have jurisdiction if and only if a national court of one of the respective Contracting Member States would have jurisdiction based on the rules of the Brussels I Regulation.

Proposed Art. 71b(2) extends the amended Brussels I Regulation’s jurisdiction rules to disputes involving third State defendants domiciled in third States.

Proposed Art. 71b(3) establishes one additional forum for disputes involving non-EU defendant, which then can be sued at the place where moveable assets belonging to him are located provided their value is not insignificant and that the dispute has a sufficient connection with the EU Member State of the court seized.

Proposed Art. 71c regulates that rules on lis pendens apply between the UPC/BCJ and the courts of non-contracting EU Member States, in oder to prevent parallel pending proceedings and the problems of diverging judgements for the same matter.

Proposed Art. 71d regulates, on the one hand side, the recognition and enforcement of judgments of the UPC and BCJ in EU Members States which are not contracting parties to ther respective agreements and, on the other hand side, the recognition and enforcement of judgments given in EU Member States which are not contracting parties to these agreements in matters which need to be recognised and enforced in EU Member stastes which are contracting parties to theses agreements.