Hoge Raad, arrest van 19/12/2003 Roche Nederland BV e.a. / Frederick James Primus en Milton David Goldenberg
Decision by national courts in the field of European Union law — ECLI:NL:HR:2003:AF9714
Date: 2003-12-19
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82003NL1219(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Two American plaintiffs commenced proceedings in the Rechtbank 's-Gravenhage (NL) against several defendants belonging to one group of companies. The defendants are seated in the Netherlands, in several other Member States, in Switzerland and in the US. The claims are for injunctions for infringement of a European patent. The Rechtbank accepted jurisdiction vis-à-vis the European defendants by virtue of Article 6 (1) Brussels and Lugano Conventions. Although the European patent is split up into national patents, these patents should be interpreted uniformly according to Article 69 European Patent Treaty. Therefore, a sufficient connection exists between the claims for the application of Article 6 (1). This might have been different if the claim against some of the defendants would have been made with the sole purpose of removing other defendants from the jurisdiction of the courts of their domicile. After the Rechtbank accepted jurisdiction and dismissed the claims, the plaintiffs appealed and the defendants made no counter-appeal, not even against the decision on jurisdiction. Therefore, the Gerechtshof 's-Gravenhage (NL) concluded that, in the end, the defendants had tacitly submitted to the jurisdiction of the Dutch courts in the sense of Article 18 Brussels Convention. The Gerechtshof did not allow them anymore to raise the issue of jurisdiction at the occasion of the pleadings.
The Hoge Raad (NL) rejects this reasoning. The Gerechtshof should have examined the defence with regard to the jurisdiction, unless the defendants had abandoned it unequivocally, which was not the case. As regards Article 6 (1) Brussels Convention, the Hoge Raad refers the case to the ECJ for a preliminary ruling (Pending case C-539/03, OJ 2004/C 59/18).