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CJEU – Bayer / Art. 9 (7) Enforcement Directive / “appropriate compensation”

18 Sep 2019

CJEU preliminary ruling judgment in C-688/17 (Bayer) provides interpretation on Art. 9 (7) of the Directive 48/2004/EC (Enforcement Directive) based on a referral from the Hungarian court

On September 12, 2019 the Court of Justice laid down its decision in C-688/17 (Bayer) in a preliminary ruling proceeding coming from the Metropolitan Court, Budapest, about the interpretation of Art. 9 (7) of the Enforcement Directive, particularly regarding the term “appropriate compensation” that is due to defendants in the event a preliminary injunction is subsequently lifted.

In the decision the CJEU ruled that the term “appropriate compensation” is a sui generis notion of EU law and shall be interpreted in a uniform manner throughout the EU. Also the court highlighted that the subsequent revocation of the patent in suit does not as such render the earlier granted preliminary injunction unfounded.

In the response given to the questions referred by the Hungarian court the CJEU ruled that Article 9 (7) of the Enforcement Directive, and in particular the term ‘appropriate compensation’ in that provision, must be interpreted as not precluding national legislation which provides that a person is not to be compensated for the damage suffered as a result of failure to behave as generally expected to avoid or reduce his or her loss, and which, in circumstances such as those in the basic case, cause the national court not to oblige the applicant who earlier requested preliminary injunction to compensate for the damage caused by those measures, even though the patent on the basis of which those measures were sought and granted was subsequently revoked; provided that this rule allows the court to consider all the objective circumstances of the case, including to duly consider the behavior of the parties, in particular to verify that the applicant has not misused those measures.

The decision of the CJEU is available here.

Headnote: Eszter Szakács, Danubia Legal | Szakács & Tálas Law Firm