Realchemie Nederland BV v Bayer CropScience AG.
Date: 2011-10-18
38. As a preliminary point, it must be recalled that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, with the exception of the Kingdom of Denmark, an interpretation given by the Court concerning that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent (see, inter alia, Case C‑292/08 German Graphics Graphische Maschinen  [2009] ECR I‑8421, paragraph 27 and case-law cited). Furthermore, it is clear from recital 19 in the preamble to Regulation No 44/2001 that continuity in interpretation between the Brussels Convention and that regulation should be ensured.
39. In that connection, it must be stated that the scope of Regulation No 44/2001 is, like the Brussels Convention, limited to ‘civil and commercial matters’. That scope is determined essentially according to the factors characterising the nature of the legal relationships between the parties to the action or the subject-matter of the action (see, in particular, to that effect, Case C‑420/07 Apostolides  [2009] ECR I‑3571, paragraphs 42, 45 and 46 and the case-law cited).
40. More particularly, as regards interim measures, the Court considers that their inclusion in the scope of the Brussels Convention is determined not by their own nature but by the nature of the rights that they serve to protect (see, in particular, Case 143/78 de Cavel [1979] ECR 1055, paragraph 8, and Case C‑391/95 Van Uden  [1998] ECR I‑7091, paragraph 33).
41. In the present case, even if, according to Paragraph 890 of the ZPO, the fine at issue in the main proceedings is punitive and the reasoning in the order imposing it explicitly mentions the penal nature of that fine, the fact remains that, in those proceedings, there is a dispute between two private persons, the object of which is the authorisation of enforcement in the Netherlands of six orders from the Landgericht Düsseldorf, by which the latter, hearing an application lodged by Bayer and based on an allegation of patent infringement, prohibited Realchimie from importing into, possessing and marketing certain pesticides in Germany. The action brought is intended to protect private rights and does not involve the exercise of public powers by one of the parties to the dispute. In other words, the legal relationship between Bayer and Realchimie must be classified as ‘a private law relationship’ and is therefore covered by the concept of ‘civil and commercial matters’ within the meaning of Regulation No 44/2001.
42. It is true, as is apparent from the order for reference, that the fine imposed on Realchimie pursuant to Paragraph 890 of the ZPO, by order of the Landgericht Düsseldorf must be paid, when it is enforced, not to a private party but to the German State, that the fine is not recovered by the private party or on its behalf but automatically, and that the actual recovery is made by the German judicial authorities. Those specific aspects of the German enforcement procedure cannot however be regarded as decisive as regards the nature of the right to enforcement. The nature of that right depends on the nature of the subjective right, for infringement of which enforcement was ordered, that is, in the present case, Bayer’s right to exploit exclusively the invention protected by its patent which is clearly covered by civil and commercial matters within the meaning of Article 1 of Regulation No 44/2001.
48. As regards Article 14 of Directive 2004/48, that provision aims to strengthen the level of protection of intellectual property, by avoiding the situation in which an injured party is deterred from bringing legal proceedings in order to protect his rights.