A-G Emiliou: Article 24(4) of the Brussels I bis does not apply to the validity of a patent registered in a third state

In his opinion, A-G addresses the third question in Zaak C-339/22. BSH Hausgeräte:

3. Is Article 24(4) of the Brussels I Regulation to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

In his opinion the A-G finds that that provision does not apply to the validity of a patent registered in a third State. However, courts of Member States having jurisdiction under another rule of that regulation may refrain from ruling on that question.

A different reading, according to the Advocate General, is contrary to customary international law which delimits the adjudicatory jurisdiction of States in civil and commercial matters. Essentially, a State can claim such jurisdiction only where there is a sufficient connection between it and a given dispute, which may be of a territorial or national nature. The defendant's domicile provides a sufficient connection and thus does not affect the sovereignty of the third State concerned.

It is different when the courts of a Member State rule on certain disputes in civil and commercial matters involving another State, even when the defendant in question is domiciled in the territory of a former State. This applies in particular to the registration or validity of patents.

Indeed, it is a clear principle of common law that a state cannot interfere with the operation of the public services, such as Intellectual Property Offices (IPOs), of another state. Just as a state cannot order a foreign agency through its courts to adopt an measure, neither can it amend or annul the measures originated by that agency.

Opinion A-G Emiliou