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*PIL Case Law

Published on September 12th, 2017 | by Olga Papadopoulou

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CJEU,C-433/16, Reg. 44/2001 — Intellectual property — Community designs — Reg. 6/2002 — Art.81, 82 Action for a declaration of non-infringement

C‑433/16,

Bayerische Motoren Werke AG v  Acacia Srl,

JUDGMENT OF THE COURT (Second Chamber), 13 July 2017 (*)

(Reference for a preliminary ruling — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Intellectual property — Community designs — Regulation (EC) No 6/2002 — Articles 81 and 82 — Action for a declaration of non-infringement — Jurisdiction of Community design courts of the Member State where the defendant is domiciled)

        In those circumstances, the Corte suprema di cassazione (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Under Article 24 of Regulation No 44/2001, can an action to contest the jurisdiction of the national court seised that is brought before that court as a preliminary matter but in the alternative to other preliminary procedural objections and nevertheless before issues of substance are raised be interpreted as acceptance of the jurisdiction of that court?

(2)      Must the absence of provision in Article 82[(5)] of Regulation [No 6/2002] for alternative jurisdictions to that of the defendant as stipulated in Article 82(1) of that regulation for cases relating to negative declarations be interpreted as implying the attribution of exclusive jurisdiction for such cases?

(3)      Is it also necessary, in order to resolve the [second question], to take account of the interpretation of the rules on exclusive jurisdiction in Regulation [No 44/2001], and in particular in Article 22, which provides for such jurisdiction, inter alia in proceedings concerned with the registration or validity of patents, trade marks and designs but not in cases regarding negative declarations, and in Article 24, which provides for the possibility that the defendant may accept a different jurisdiction, except where jurisdiction is derived from other provisions of the regulation, thereby establishing the jurisdiction of the court seised by the applicant?

(4)      Is the approach adopted by the Court of Justice in the judgment of 25 October 2012 (Folien Fischer and Fofitec (C‑133/11, EU:C:2012:664)) with regard to the applicability of Article 5(3) of Regulation [No 44/2001] of a general and absolute nature applicable to every action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict, including those for a declaration of non-infringement of Community designs, and hence in the present case is it the court referred to in Article 81 of Regulation [No 6/2002] or that referred to in Article 5(3) of Regulation [No 44/2001] that has jurisdiction, or may the applicant opt for one or other of the possible jurisdictions?

(5)      If actions for abuse of a dominant position and unfair competition are brought in the context of a case concerning Community designs with which they are connected, in that their admissibility presupposes prior admissibility of the application for a negative declaration, can they be heard together with that case by the same court in accordance with a broad interpretation of Article 28(3) of Regulation [No 44/2001]?

(6)      Do the two actions referred to [in the previous question] constitute a case of tort, delict or quasi-delict, and, if so, may they affect the applicability of Regulation [No 44/2001] (Article 5(3)) or of Regulation [No 6/2002] to the present case as regards jurisdiction?’

On those grounds, the Court (Second Chamber) hereby rules:

1)      Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted to the effect that a challenge to the jurisdiction of the court seised, raised in the defendant’s first submission in the alternative to other objections of procedure raised in the same submission, cannot be considered to be acceptance of the jurisdiction of the court seised, and therefore does not lead to prorogation of jurisdiction pursuant to that article.

2)      Article 82 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted to the effect that actions for declaration of non-infringement under Article 81(b) of that regulation must, when the defendant is domiciled in an EU Member State, be brought before the Community design courts of that Member State, except where there is prorogation of jurisdiction within the meaning of Article 23 or Article 24 of Regulation No 44/2001, and with the exception of the cases of litis pendens and related actions referred to in those regulations.

3)      The rule on jurisdiction in Article 5(3) of Regulation No 44/2001 does not apply to actions for a declaration of non-infringement under Article 81(b) of Regulation No 6/2002.

4)      The rule on jurisdiction set out in Article 5(3) of Regulation No 44/2001 does not apply to actions for a declaration of abuse of a dominant position and of unfair competition that are connected to actions for declaration of non-infringement, in so far as granting those applications presupposes that the action for a declaration of non-infringement is allowed.

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