LG Hamburg; 2020-07-10; 416 HKO 31/20
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2020:0710.416HKO31.20.00
Date: 2020-07-10
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE0710(52)_ENG_SUMJURE
JURE summary
JURE summary
A pharmaceutical company domiciled in Germany (hereinafter ‘the plaintiff’) demanded the issuance of a preliminary injunction against two companies from Switzerland (hereinafter the ‘defendants’) belonging to the same group of companies.
The defendants were to be prohibited from making six advertising statements about a drug for the treatment of an eye disease with the active ingredient brolucizumab with regard to the approval of the drug in the USA. In studies in the USA, the efficacy and safety of brolucizumab were investigated in direct comparison to aflibercept - the active ingredient of a drug for which the plaintiff has marketing authorisation in Germany.
The Landgericht Hamburg (hereinafter ‘the Court of First Instance’), as the court seised, issued the required preliminary injunction.
In their appeal, the defendants challenged the international jurisdiction of the Court of First Instance. They argued that the statements did not have the intended effect on the German market. The publication of financial results and the presentation for investors were not aimed at the German market, but rather directed at investors and analysts in the USA.
The plaintiff's claim was already inadmissible due to the lack of jurisdiction of the Court of First Instance. According to Article 2(1) of the new Lugano Convention (1), legal persons must, in principle, be sued at their registered office. The defendant's focus on the German market could not be recognised. The 128-page presentation for investors described the development of the Group's latest products. This is not precluded by the fact that the statements objected to in some cases concerned the mode of action or benefits of the drug. The possibly indirect reference to a competitor product not mentioned by name did not harm the plaintiff. It is certainly relevant for investors and analysts how the new medicinal product can position itself on the market in comparison to competing products. In the present case, these are not statements that investors and analysts familiar with the pharmaceutical market could not understand or categorise. Irrespective of this, the challenged statements clearly related to the American market. This was not affected by the fact that some of the statements were made in German. German is also a national language in Switzerland and is used in communication between companies.
The Court of First Instance annulled the interim injunction and dismissed the plaintiff's request for the issuance of an interim injunction.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.