What is a cross-border preliminary injunction?
As a general point, in European Union law a “cross-border injunction” or “paneuropean injunction” is an injunction issued by a court in one European country, with effect in other Member States.
Cross-border injunctions aiming at the adoption of provisional or protective measures injunctions with effect in other Member States (“cross-border preliminary injunctions”) tended to increase in the 90’s (especially, in the courts of the Netherlands and Germany), although this figure was already consecrated from the beginning of the European judicial cooperation, as it is based on the principle of mutual recognition between the EU members (Article 81 Treaty on the Functioning of the European Union, TFEU, ex Article 65 TEC).
Specifically, cross-border preliminary injunctions were codified in 1968, pursuant to Article 24 of the Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters.
The possibility of adopting preliminary injunctions with international effects was also provided by the Lugano Conventions of 1988 and 2007, as well as by the Council Regulation (EC) No 44/2001 of 22 December 2000 which would replace the Brussels Convention (which now, however, is still applicable in some cases as per Article 355 TFEU).
At present, the possibility of adopting preliminary injunctions with extraterritorial effects is provided by Regulation (EU) nº 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter, “the Regulation Brussels I Recast”, or solely “the Regulation”).
What should be understood by preliminary injunction in EU law?
The first matter posed by preliminary injunctions at a EU level is their own notion or definition, that is, the disparity that the very notion of "preliminary injunctions" may have in the different Member States, to the extent that some of them do not distinguish between "protective" measures and "provisional" measures.
While the European legislator has unfortunately decided not to give a definition in the Regulation, the precise notion of protective or provisional measure must be extracted from the jurisprudence of the Court of Justice of the European Union (CJEU) and, specifically, from the Case Reichert (Judgment of the Court (Fifth Chamber) of 26 March 1992. Case C-261/90, Mario Reichert, Hans-Heinz Reichert and Ingeborg Kockler v Dresdner Bank AG). In this judgment, the Court considered that “the expression 'provisional, including protective, measures' (…) must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter”.
Cross-border preliminary injunctions at present
a) Regulation at present
As explained before, cross-border preliminary injunctions are currently regulated by Regulation Brussels I Recast related to provisional measures, which in its Article 35 states that:
“Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter”.
Therefore, the local judge is competent to adopt preliminary injunctions having effect in one, or several Member States, even in those cases in which, according to the applicable regulations, the jurisdiction to decide about the substance of the matter corresponds to the court of another Member State.
The local judge will adopt the preliminary injunction in application of his domestic procedural law. In other words, the local judge may only adopt measures that exist and are regulated in their own procedural law, but not those provided for other legislations.
Pursuant to the European principle of mutual recognition, the judge of the State in which the measures will apply is only competent to enforce said measures, not being able to assess the merits or substance of the foreign preliminary injunction (Judgment of the Court (Third Chamber), 23 October 2014. Case C‑302/13, flyLAL-Lithuanian Airlines AS v Starptautiskā lidosta Rīga VAS and Air Baltic Corporation AS).
The procedure for the enforcement of the measures in the affected State or States, however, shall be governed by their own domestic laws (Article 41 Regulation).
According to the above, it is possible that the measures adopted by the national judge in application of his procedural law do not exist in the legal system of the State in which they must be enforced. In such case, Article 54 Regulation provides that if the measure is not known in the law of the Member State addressed, that measure shall, to the extent possible, be adapted to a measure known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests.
In any case, such adaptation may not generate any effects that go beyond those provided for in the law of the Member State of origin.
This may lead to the paradoxical situation where the (foreign) defendant who suffers the effects of the measures adopted by the judge of the Member State of origin in accordance with his own procedural law could be benefited because, if the measures had been adopted by the judge of the defendant’s State in application of his domestic law, said measures could have been stricter.
b) Additional limits to cross-border preliminary injunctions
The Member States’ Courts have recently showed an increase in the adoption of cross-border preliminary injunctions, including matters considered as “exclusive” by the Regulation (such as IP, Article 24 Regulation), probably due to the flexibilization of the doctrine related to cross-border preliminary injunctions provided by the Case Solvay (Judgment of the Court (Third Chamber), 12 July 2012. Case C‑616/10, Solvay SA v Honeywell Fluorine Products Europe BV and Others).
Nevertheless, the Regulation Brussels Recast has introduced an innovation compared with the previous Regulation (Regulation 44/2001, which was applicable at the time of the judgement Solvay), which could limit the adoption of preliminary injunctions with international effects.
Thus, Recital 33 of Regulation Brussels Recast provides that,
“(…) Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State”.
In the same vein, Article 2 Regulation, which provides the definitions contained in its wording, provides that “‘judgment’ includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter”.
This is to say, Recital 33 states that the measures should be confined to the territory of the Member State of the judge that orders them, "except" if this same judge, under the Regulation, has jurisdiction as to the substance of the matter (in such case, cross-border preliminary injunctions would have international effect, since they could be recognized and enforced in the other affected Member States).
That is therefore a limit to the former situation (where the adoption of cross-border preliminary injunctions was highly flexible), which shall force the claimant to determine the competence of the Courts in the light of the rules of jurisdiction of the Regulation Brussels Recast (general provisions; special provisions and CJEU caselaw interpreting them).
Therefore it would be desirable that the CJEU provides an explanation concerning the extension and limits of cross-border preliminary injunctions at present, as well as the relation between Article 35 and Recital 33.