The Council agreed on a general approach on a proposal for a regulation amending Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast).

On 19 February 2013, 25 Member States signed an Agreement on a Unified Patent Court (UPC). The creation of such a court was made necessary by the adoption of two regulations with a view to implementing enhanced cooperation in the area of the creation of unitary patent protection and its translation arrangements.

The main objective of the proposal is to regulate the relationship between Regulation 1215/2012 and the UPC Agreement, it also takes into account the existence of the Benelux Court of Justice and the international jurisdiction to be exercised by that Court in specific matters which are covered by Regulation 1215/2012.

The main amendments introduced by the general approach were as follows:

• The Unified Patent Court and the Benelux Court of Justice should be considered common courts within the meaning of Regulation (EU) No 1215/2012 in order to ensure legal certainty and predictability for defendants who may be sued before those two courts at a location situated in a Member State other than the one designated by the rules of Regulation (EU) No 1215/2012.
• The common court shall have jurisdiction where, under this Regulation, the courts of a Member State party to the agreement establishing the common court would have jurisdiction in a matter governed by that agreement.
• Where the defendant is not domiciled in a Member State, and this Regulation does not otherwise confer jurisdiction over him, provisions of the Regulation 1215/2012 shall apply as appropriate regardless of the defendant's domicile.
• Where a common court has jurisdiction over a defendant in a dispute relating to an infringement of a European patent giving rise to damage within the Union, that court may also have jurisdiction in relation to damage arising outside the Union from such an infringement.

Such jurisdiction may only be established if property belonging to the defendant is located in a Member State party to the agreement establishing the common court.

• The rules of this Regulation shall apply to the recognition and enforcement of:
• 1. judgments given by a common court which are to be recognised and enforced in a Member State not party to the agreement establishing the common court; and
  2. judgments given by the courts of a Member State not party to the agreement establishing the common court which are to be recognised and enforced in a Member State party to that agreement.
• The rules of this Regulation shall not apply to the recognition and enforcement of judgments given by a common court where such recognition and enforcement is sought in a Member State party to the agreement establishing the common court.

It should be noted that the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation. Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

This general approach will constitute the basis for negotiations with the European Parliament in order to agree the final text of the regulation.

PURPOSE: to amend Regulation (EU) No 1215/2012 (the so-called Brussels I Regulation) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation (recast)), recasting Regulation (EC) No 44/2001, was adopted. Regulation (EU) No 1215/2012 will enter into application on 10 January 2015.

In December 2012, an agreement was reached on the so-called “patent package”:

• two Regulations on the unified patent (Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012). These were adopted in enhanced cooperation involving 25 Member States (all Member States except Italy and Spain); and
• an international Agreement (the "Unified Patent Court Agreement" or "UPC Agreement"), laying the ground for the creation of unitary patent protection in the European Union. This was signed on 19 Februrary 2013 by the majority of Member States.

Article 89(1) of the UPC Agreement provides that the Agreement cannot enter into force prior to the entry into force of the amendments to the Brussels I Regulation (recast) regulating the relationship between both instruments.

On 15 October 2012, the three Member States (Belgium, Luxembourg and the Netherlands) who are Contracting Parties to the Treaty of 31 March 1965 concerning the establishment and statute of a Benelux Court of Justice signed a Protocol modifying the said Treaty creating the possibility to extend the competences of the Benelux Court of Justice to include jurisdictional competences in specific matters which come within the scope of the Brussels I Regulation.

As a result, similar to the UPC Agreement, the Protocol to the Benelux Treaty requires an amendment to the Brussels I Regulation (recast) with the aim (i) to ensure compliance between the revised Treaty and the Brussels I Regulation (recast), and (ii) to address the lack of common jurisdiction rules vis-à-vis defendants in non-European Union States.

IMPACT ASSESSMENT: the matter of jurisdictional rules vis-à-vis State defendants was extensively assessed in the Commission's impact assessment accompanying the legislative proposal amending Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I"). The conclusions of that assessment are a fortiori relevant for the limited harmonisation foreseen in this proposal.

LEGAL BASIS: Article 67(4) and points (a), (c) and (e) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: this proposal aims, firstly, at allowing the entry into force of the UPC Agreement. Article 89(1) of the UPC Agreement makes the entry into force of the Agreement dependent on the amendment of Regulation (EC) No 1215/2012. In addition, the proposal aims at ensuring compliance with the Brussels I Regulation of this Agreement as well as the Protocol to the Benelux Treaty of 1965.

In order to ensure the combined and coherent application of the Agreement and Protocol and the Brussels I Regulation (recast), it is necessary to address the following issues in the Brussels I Regulation (recast):

• clarify in the text of the Regulation that the Unified Patent Court and the Benelux Court of Justice are ‘courts’ within the meaning of the Brussels I Regulation;
• clarify the operation of the rules on jurisdiction with respect to the Unified Patent Court and the Benelux Court of Justice insofar as defendants domiciled in Member States are concerned;
• create uniform rules for the international jurisdiction vis-à-vis third State defendants in proceedings against such defendants brought in the Unified Patent Court and Benelux Court of Justice in situations where the Brussels I Regulation does not itself provide for such rules but refers to national law;
• define the application of the rules on lis pendens and related actions in relation to the Unified Patent Court and the Benelux Court of Justice, on the one hand, and the national courts of Member States which are not Contracting Party to the respective international agreements on the other;
• clarify the operation of the rules on recognition and enforcement in the relations between Member States which are and Member States which are not Contracting Parties to the respective international agreements.

BUDGETARY IMPLICATION: the proposal has no implications for the European Union’s budget.