I reviewed Emiliou AG’s first Opinion in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB right here. Seeing because the case was now reassigned to Grand Chamber (evaluate with CJEU IRnova the place a 3 member chamber rejected reflexivity en stoemelings) and as a brand new listening to was held solely on the difficulty of reflexivity, the AG obtained a second go on the situation.
As I reported in my earlier publish I don’t assume his views on the reflexivity situation (versus his strong views on the A24(4) patent jurisdiction situation) are convincing. This second Opinion is a superb useful resource for the conceptual considering on reflexive impact (incl its relation to public worldwide regulation problems with comity) nonetheless it doesn’t sway me and neither do I imagine will it persuade the court docket.
Lydia Lundstedt has summarised and reviewed the Opinion right here and (amongst others as a result of I’m swamped at Melbourne the place time period is in full swing) I’m blissful to refer.
The essence of the Opinion is that within the AG’s view below residual personal worldwide regulation (and civil process) guidelines, Member States could refuse to train Article 4 (or different) Brussels Ia derived jurisdiction if the declare engages with the validity of third States patents or, as Lydia summarises it: Member States could (1) decline to adjudicate a declare that has as its object the validity of a third-State patent (erga omnes) and (2) refuse to rule (inter partes) on an invalidity defence raised in an infringement motion and keep that motion whereas ready for the authorities within the third State to rule on validity.
I’ve in truth advocated a change to the principles, de lege feranda. I don’t imagine reflexive impact exists de lege lata nonetheless, even below the roundabound means of letting Member States impact it below their residual guidelines.
Geert.
EU personal worldwide regulation, 4th ed. 2024, 2.218.
