The matter at hand

This matter concerns a request for a preliminary ruling made by the Hoge Raad der Nederlanden (Dutch Supreme Court) regarding the interpretation of Article 90(1) of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs, which provides that “application may be made to the courts of a Member State, including Community design courts, for such provisional measures, including protective measures, in respect of a Community design as may be available under the law of that State in respect of national design rights even if, under this Regulation, a Community design court of another Member State has jurisdiction as to the substance of the matter.”

The request was made following a judgment of the preliminary measures judge of the district court of Amsterdam in summary injunction proceedings concerning the (alleged) infringement of a Community design right. Although in the Netherlands, the district court of The Hague has, as Community design court, exclusive jurisdiction in respect of all actions referred to in Article 81 of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs, the preliminary measures judge held that his court did have jurisdiction to rule on an application for provisional measures (including an injunction) limited to the territory of the Netherlands.

Uncertain as to whether this was in accordance with the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs, the Supreme Court referred a request to the ECJ for a preliminary ruling on whether Article 90(1) of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs must be interpreted as requiring the mandatory granting, to all courts and tribunals of a Member State referred to therein, of jurisdiction to grant provisional and protective measures, or whether Member States may delegate jurisdiction to grant such measures exclusively to the courts designated as Community design courts.

The judgment of the ECJ

The ECJ holds that it follows from the wording of Article 90(1) of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs, in particular from the use of the word ‘including’ before ‘Community design courts’, that “a litigant may apply for provisional measures, including protective measures, in respect of a Community design not only to the Community design courts of the Member State, but also to any court or tribunal in that State with jurisdiction to adopt such measures in respect of national designs” (paragraph 32).

Regarding the word ‘may’ in Article 90(1) of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs, the ECJ holds that that provision does not give Member States a discretionary power as to the attribution of jurisdiction concerning provisional measures, including protective measures, in respect of a Community design. The court finds that the word ‘may’ “refers only to litigants who wish to bring an action before a court for a provisional or protective measure relating to one of the actions listed in Article 81 of Regulation No 6/2002“ (paragraph 33).

As to a reading of Article 90 according to which it only specifies the rules of international jurisdiction with regard to provisional measures, the ECJ finds that it follows from a comprehensive reading and systematic interpretation of that provision that only its second part may be given such a scope.

The ECJ considers that this interpretation meets the objectives of the Community Design RegulationCouncil Regulation [EC] No 6/2002 of 12 December 2001 on Community designs. Although the ECJ admits that the regulation intends “to establish specialisation of the courts with jurisdiction in Community design matters”, it finds that in the case of requests for provisional measures, the requirements of proximity and efficiency should prevail over the objective of specialization, such in the interest of an efficient enforcement throughout the European Union (paragraph 40 and 41). Moreover, the ECJ notes that “the effect of such provisional measures, including protective measures, is, by its nature, limited in time and their grant by the court having jurisdiction in the matter cannot prejudge the outcome of the action for infringement or invalidity brought on the substance, which falls within the exclusive jurisdiction of the Community design courts” (paragraph 43).

The ECJ concludes that “Article 90(1) of [Community Design] Regulation No 6/2002 must be interpreted as meaning that the courts and tribunals of the Member States with jurisdiction to order provisional measures, including protective measures, in respect of a national design also have jurisdiction to order such measures in respect of a Community design” (paragraph 44).