Despite the use of the words ‘conventions to which the Member States are parties’, which suggests that only the conventions concluded by all the Member States are covered by that article, it is clear from the wording of paragraph 2(a) thereof that the conventions referred to also include those which have been concluded by only some of the Member States. Furthermore, it follows from a combined reading of Articles 69 and 71 of Regulation No 44/2001 that the latter article is not to be interpreted as meaning that it would apply with regard to conventions binding several Member States only on the condition that one or more third countries are also parties to such conventions.

The limitation on the scope of Article 71 of Regulation No 44/2001, as compared with Article 57 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, reflects the settled case-law stating that, as and when common rules come into being, the Member States no longer have the right to conclude international agreements affecting those rules. That limitation also applies with respect to the conclusion by the Member States of agreements between themselves.

Although the relationship between the rules of jurisdiction laid down by Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and those contained in certain conventions concluded between Member States was governed, in favour of those conventions, by Article 71 of Regulation No 44/2001, that provision did not enable the Member States, by concluding new specialised conventions or amending conventions already in force, to introduce rules which would prevail over those of that regulation.

Article 71 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 350 TFEU, does not preclude the rules of jurisdiction relating to Benelux trademarks and designs, laid down in Article 4.6 of the Benelux Convention on Intellectual Property (Trade Marks and Designs) (BCIP) from being applied to those disputes.

In that connection, Article 350 TFEU enables the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands to leave in force, by way of derogation from the EU rules, the rules which apply within their regional union, in so far as that regional union is further advanced than the internal market and that such a derogation is justified as it is indispensable for the proper functioning of the Benelux regime.

As regards the first of those requirements, in the context of Benelux, the trade marks and designs of the three Member States concerned have been replaced by rights with unitary effect. That regime, which exists in parallel to that relating to the unitary rights of the EU, is, while integrating the partial harmonisation achieved by Directive 2008/95 to approximate the laws of the Member States relating to trade marks and Directive 98/71 on the legal protection of designs, more advanced than it. Benelux trade marks and designs are subject to completely uniform rules and common institutional and procedural rules. Among the latter is Article 4.6 of the BCIP.

As regards the second requirement, having regard to the fact that Benelux trade marks and designs fall within a regime in the three Member States concerned which is more advanced than the jurisdictional structure established by Benelux, based on a decentralised system and a mechanism for referring questions for a preliminary ruling to the Benelux Court of Justice and the multilingual character of that regional union, the codified rule in Article 4.6 of the BCIP, which is founded in particular on the defendant’s domicile and thereby ensures that the disputes relating to Benelux trade marks and designs may be dealt by a court of one of those three Member States, instead of being concentrated, pursuant to Article 22(4) of Regulation No 44/2001 and then Article 24(4) of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, before the Netherlands courts where the filing and registration of trade marks is centralised and the register is kept, may be treated as indispensable for the proper functioning of the Benelux regime of trade marks and designs.

Finally, a provision such as Article 4.6 of the BCIP, which is founded on the principle that jurisdiction is generally based on the defendant’s domicile, and supplemented by other forums having a close link with the subject matter of the dispute, is consistent with the principles set out in recitals 11 and 12 of Regulation No 44/2001, of legal certainty for litigants and the sound administration of justice.

(see paras 57, 59, 60, 63-66, operative part)