UPC’s First Reference to the CJEU on Brussels I bis

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University and Linköping University.

On 6 March 2026, the Court of Appeal (CoA) of the Unified Patent Court (UPC) made the UPC’s first-ever reference to the Court of Justice of the European Union (CJEU), including questions on the interpretation of  the Brussels I bis Regulation.

As a court common to several Member States, the UPC is bound by EU law. Article 31 of the UPC Agreement (UPCA) provides that its international jurisdiction is determined by the Brussels I bis Regulation or, where applicable, the Lugano Convention.

Articles 71a–d of the Brussels I bis Regulation were introduced to adapt the Regulation to the UPC, particularly where a defendant is not domiciled in an EU or Lugano state, raising novel and complex jurisdictional issues.

Background

Dyson Technology Ltd. owns a European patent for a hair care appliance with unitary effect across UPC Member States and also validated in Spain, which is not a party to the UPCA.

Dyson brought infringement proceedings before the Hamburg Local Division of the UPC (CFI) seeking provisional measures against several defendants, including Dreame International (Hong Kong), which sells hair appliances via country-specific webshops, and Eurep GmbH (Germany), Dreame’s EU authorised representative. Dyson alleged that several Dreame products infringed its patent and requested a preliminary injunction covering both the UPC territory and Spain.

The CFI granted a preliminary injunction against Dreame International and other defendants for the UPC territory, and against Eurep for providing services facilitating infringement. The injunction also covered Spain with respect to Dreame International and Eurep.

As regards Eurep, the CFI held it had jurisdiction under Article 4 in conjunction with Article 71b(1) of the Brussels I bis Regulation, based on Eurep’s domicile in Germany. Relying in particular on the CJEU’s judgment in BSH Hausgeräte GmbH, the CFI considered this jurisdiction to extend to acts of infringement in Spain.

For Dreame International, the CFI relied on Article 8(1) in conjunction with Article 71b(2) of the Brussels I bis Regulation. It held that the phrase “as appropriate” in Article 71b(2) does not restrict the application of Article 8(1), but merely requires that the conditions of Article 8(1) are met apart from the domicile requirement.

The CFI found that the claims against Eurep (the anchor defendant) and Dreame International were closely connected, particularly because Eurep was mandated to act on Dreame’s behalf in relation to the distribution of the allegedly infringing products in the EU, including Spain.

While acknowledging that appointing an authorised representative in a UPC Member State may expose a non-EU manufacturer to UPC jurisdiction, potentially including claims concerning patents in non-UPCA states, the CFI considered this consequence not unfair given the regulatory role of authorised representatives.

Both sides appealed to the CoA including on the issue of the UPC’s jurisdiction over the alleged infringement of the Spanish patent.

Court of Appeal

While upholding the CFI’s finding that jurisdiction over Eurep extends to Spain, the CoA held that the UPC’s jurisdiction over Dreame International in Spain raises questions of EU law under the Brussels I bis Regulation. It therefore stayed that part of the proceedings and referred questions to the CJEU. (A separate question on the Enforcement Directive is not addressed here.)

The First Question

The CoA indicated that Article 8(1) in conjunction with Article 71b(2) of the Brussels I bis Regulation can apply to a third state defendant where the claims are closely connected and should be heard together to avoid irreconcilable judgments. In this respect, the CoA appears to share the CFI’s view that the wording “as appropriate” in Article 71b(2) adds no additional requirements.

On Article 8(1), the CoA considered that the CJEU’s judgment in Solvay might be relevant. There, the CJEU held that parallel actions against different companies for infringing the same national part of a European patent with the same product may lead to “irreconcilable judgments.” For example, one court might find that Dreame International did not infringe, while another might find that Dreame International did infringe, and used Eurep’s services.

However, the CoA noted that Article 8(1) requires more than divergent outcomes: the divergence must arise from the same situation of fact and law. It questioned whether this condition is met, since Dreame International is alleged to infringe the patent, while Eurep merely provides services facilitating the alleged infringement. Although the intermediary’s liability depends on the infringer’s conduct, the legal situations are not identical. The CoA therefore suggested that while an alleged infringer may serve as an anchor defendant for claims against an intermediary, the reverse does not necessarily follow.

The CoA’s first question to the CJEU is:

“Must Article 8(1) in conjunction with Article 71b(2) of Regulation 1215/2012 be interpreted as meaning that a situation where, in proceedings before a common court within the meaning of Article 71a(2) of Regulation 1215/2012, a first company that is established in a third State is alleged to have committed an infringement of a national part of a European patent which is in force in an EU Member State that is not party to the instrument establishing the common court, and a second company that is established in an EU Member State that is party to the instrument establishing the common court is alleged to be an intermediary whose services are used by the first company to infringe in the EU Member State that is not party to the instrument establishing the common court, is capable of leading to “irreconcilable judgments” resulting from separate proceedings as referred to in Article 8(1) Regulation 1215/2012?”

The Second and Third Questions 

The CoA further considered whether jurisdiction to grant provisional measures against Dreame International could instead derive from the second sentence of Article 71b(2), which allows the UPC to order such measures even where courts of a third State have jurisdiction over the substance. The CoA viewed this provision as conferring jurisdiction on the UPC in a manner comparable to Article 35 of the Brussels I bis Regulation. However, like Article 35, it would require a “real connecting link” between the measures sought and the UPC’s territorial jurisdiction.

The CoA suggested such a link might exist because the measures concern not only Spain but also UPC Member States, and because the alleged infringements involve the same products offered across EU markets via largely identical websites, with Dreame International using an intermediary established in a UPC Member State.

It also noted that the CJEU’s judgment in Solvay implicitly accepted provisional measures with cross-border effects. In that case, two companies from different Member States were separately accused, before a court in one of those states, of infringing the same national part of a European patent in force in a third Member State by acts relating to the same product.

At the same time, recital 33 of the Brussels I bis Regulation appears to suggest that such measures should normally be limited to the territory of the court granting them.

The CoA’s second and third questions to the CJEU are:

“2. Must Article 71b(2), second sentence, of Regulation 1215/2012 be interpreted as meaning that a common court has jurisdiction in relation to an action for provisional measures against a company established in a third State that is alleged to have infringed a European patent in force in an EU Member State that is not party to the instrument establishing the common court, and in some or all EU Member States that are party to the instrument establishing the common court by offering the same products in all those EU Member States through websites that are identical apart from the language?

3. Is the fact that the company uses the services of a company that is established in an EU Member State that is party to the instrument establishing the common court in order to infringe a relevant circumstance in answering this second question?”

Comment

The CoA’s reluctance to apply Article 8(1) where the anchor defendant is merely an intermediary echoes Dutch courts’ former “spider in the web” doctrine for parallel infringements of patents. That doctrine limited anchor jurisdiction to the courts of the Member State where the main defendant (the actor coordinating the infringing conduct) was domiciled. Although later rejected by the CJEU in Roche, its underlying logic suggests that the anchor defendant should direct the infringement. In this case, that role appears to lie with Dreame International rather than Eurep, the intermediary.

If the CJEU accepts the CFI’s approach, any intermediary in a Member State could serve as an anchor defendant, enabling claimants to sue foreign defendants before courts with only a weak connection to the dispute. This risk of forum shopping could be mitigated by interpreting the “close connection” requirement in Article 8(1) more restrictively.

Additionally, the issue might be addressed through Article 71b(2), which in some language versions provides that Chapter II jurisdictional bases apply “as appropriate.” This could mean either that certain bases are generally unsuitable for patent disputes, or that courts must assess their appropriateness case by case.

For example, if a Turkish manufacturer allegedly infringes German and Spanish patents through a German distributor, applying Article 8(1) may be reasonable: the defendant would in any event face litigation within the EU. But if the Spanish patent were replaced by a Turkish patent, the UPC could end up adjudicating alleged infringement in Turkey solely because of related conduct in Germany. From the perspective of international comity, such an outcome would be controversial and could amount to a new form of long-arm jurisdiction over non-EU defendants, potentially even broader than that under Article 71b(3).