Amendments to Brussels 1 Regulation proposed, but questions remain


The Commission has now released the draft amendments to the Brussels I Regulation required to make the Regulation compatible with the UPC:  Commission’s press release, draft amending Regulation.  As we have discussed previously, some immediate questions arise.  Is the simple application (new Art 71(c).2 of Brussels I) of the lis pendens rules of Arts 29-32 Brussels I to Art 83(1) UPC adequate?  What happens if a national revocation action is brought nationally (perhaps in response to a national infringement suit), and the same party then brings a UPC central revocation action?  Is the second action permitted to continue in respect of the parts of the EP not put in issue in the national proceeding? If so, how does Art 34 UPC then apply (decisions of the UPC to have effect for all parts of the EP in question)?  If the newly released draft is not expanded to deal specifically with this and other parallel situations, the CJEU will ultimately have to rule on the ambiguities created, and will almost inevitably in the process, interpret Art 83. In that case, the possibilities discussed in our article of the CJEU coming to an unexpected conclusion as to the meaning of Art 83 arise.

Richard Pinckney


Alan Johnson


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