The UPC Court of Appeal’s reference for preliminary ruling by the CJEU of March 6, 2026 (UPC_CoA_789/2025 and UPC_CoA_813/2025)
I. Introduction
Long-arm jurisdiction refers to the ability of a court to exercise jurisdiction over defendants located outside its territorial jurisdiction. In the European patent litigation context, the concept has gained renewed importance with the establishment of the UPC, which has jurisdiction over European patents (classical, unitary patents) in participating Member States and may be faced with disputes involving defendants located outside its territorial jurisdiction or alleged infringing acts occurring outside the UPC territory. The extent to which European courts may exercise such jurisdiction is primarily governed by the Brussels I Recast Regulation (EU) No. 1215/2012 (“Brussels I Recast Regulation”) and has been shaped by the case law of the Court of Justice of the European Union (CJEU). In particular, the CJEU’s decisions in GAT v. LuK (judgment of July 13, 2006, C-4/03[1]) and Roche Nederland v. Primus (judgment of July 13, 2006, C-539/03[2]) significantly limited cross-border patent enforcement by emphasizing the territorial nature of patent rights and restricting multi-state infringement actions against multiple defendants. Subsequent decisions such as Solvay v. Honeywell (judgment of July 12, 2012, C-616/10) clarified that provisional cross-border measures may nevertheless be available under certain circumstances. Against this background, the UPC’s emerging case law raises new questions regarding the extent to which the UPC may exercise long-arm jurisdiction over non-EU defendants or adjudicate infringement of national parts of European patents outside the UPC system.
II. Background
In several decisions, the CJEU has shaped the scope of the long-arm jurisdiction of national courts of the EU Member States. In its momentous judgment Solvay v. Honeywell (judgment of July 12, 2012, C-616/10), the CJEU ruled that Art. 8(1) Brussels I Recast Regulation must be interpreted as meaning that a risk of irreconcilable judgments exists where several companies form different EU Member States are, in proceedings pending before a court of one of those member states, separately accused of infringing the same national part of a European Patent in force in yet another Member State by performing reserved acts relating to the same product.
According to the CJEU it is for the court seized of the case to assess whether such a risk of “irreconcilable decisions” exists. The CJEU further clarified that there is no risk of conflicting decisions concerning the validity of the patent in such circumstances as, in an interim proceeding, the infringement court merely assesses how the court having jurisdiction under Article Art. 24(4) Brussels I Recast Regulation would likely rule on the validity of the patent; it does not render a final and binding decision on validity.
In its landmark judgment in BSH v. Electrolux (judgment of February 25, 2025, C-339/22[3]), the CJEU further addressed the issue of long-arm jurisdiction, particularly with regard to foreign parts of a European patent in proceedings brought before the court at the defendant’s domicile. In essence, the CJEU held that the court of the defendant’s domicile may hear infringement actions concerning foreign national parts of a European patent even where the defendant challenges the validity of those patents. However, questions of validity erga omnes remain within the exclusive jurisdiction of the courts of the state in which the respective patent is registered. The CJEU also clarified that, with regard to patents registered in third countries (such as the United Kingdom or Turkey), the court seized may assess validity inter partes as a defence in infringement proceedings.
Following BSH v. Electrolux, the UPC has had to address questions relating to long-arm jurisdiction in several cases. One notable example is the decision of the Local Division Hamburg in Dyson v. Dreame[4] concerning alleged infringement of a European patent relating to hair-styling devices, in which the court discussed in detail the relevant jurisdictional provisions, in particular Article 7(2) in conjunction with Article 71b, as well as Article 8(1) of the Brussels I Recast Regulation.
The case involved several defendants belonging to the Swedish Dreame group. One defendant, the manufacturer of the allegedly infringing products, was domiciled outside the European Union, in Hong Kong. Another defendant was Eurep GmbH, a company domiciled in Germany. Eurep acted as the authorized representative for product safety in the European Union in relation to the relevant products.
The Hamburg Local Division acknowledged that Eurep GmbH had not itself committed acts of patent infringement within the UPC territory. Nevertheless, the court considered Eurep to qualify as an intermediary within the meaning of Article 62(1) UPCA. On this basis, the court assumed jurisdiction for the UPC territory also with regard to the Hong Kong-based manufacturer.
Furthermore, the Local Division accepted jurisdiction of the UPC in relation to the Spanish part of the European patent, which had also been invoked in the proceedings. In doing so, the Court relied on Article 8(1) Brussels I Recast Regulation, treating Eurep GmbH as an anchor defendant. Article 8(1) Brussels I Recast Regulation requires that the claims against multiple defendants are so closely connected that there is a risk of irreconcilable judgments if they were to be heard separately. The Local Division considered this requirement to be fulfilled, as the proceedings concerned the same patent, the same allegedly infringing products, and the same underlying facts, including the alleged acts relating to Spain.
The defendants appealed the decision. The appeal proceedings have now led to a referral by the Court of Appeal to the CJEU on March 6, 2026, concerning the appeals brought by Dreame Hong Kong and Eurep GmbH and raising further questions regarding the scope of long-arm jurisdiction under the Brussels I Recast Regulation in the context of UPC proceedings.
III. The Court of Appeal’s Decision of March 6, 2026
The Court of Appeal has referred several questions to the CJEU concerning the UPC’s international jurisdiction and the scope of cross-border injunctions[5]. The referral arises from the appeal proceedings in the dispute between Dyson and Dreame (see above, Section II.).
The Court of Appeal stayed the appeal proceedings insofar as they concern (i) the alleged infringement in Spain, which is not a UPC member state, and (ii) claims against Eurep, the EU-based authorized representative of the non-EU manufacturer Dreame Hong Kong.
The referral asks the CJEU to clarify key issues under the Brussels I Recast Regulation (referred to as “Regulation 1215/2012” by the Court of Appel) and submitted the following questions:
- 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?
- 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?
- 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?
- Does Article 9(1)(a) of Directive 2004/48 or any other provision of Union law preclude case-law of a national or common court under which an interlocutory injunction aimed at preventing or prohibiting infringement of a patent by a third party by placing products on the market to which Regulation 2023/988 and 2019/1020 apply may be granted against an authorized representative that performs the tasks laid down in these Regulations on behalf of the third party?
The decision represents the first preliminary reference for a preliminary ruling from the UPC to the CJEU. The referral is significant because it addresses whether the UPC can exercise “long-arm jurisdiction” over patent infringements outside UPC states (e.g., Spain) and against non-EU manufacturers using EU intermediaries. The CJEU’s answer will likely set an important precedent for cross-border injunctions and the territorial reach of the UPC.
[1] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62003CJ0004
[2] https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:62003CJ0539
[3] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62022CJ0339; s. also https://grunecker.de/en/insights/cjeu-and-upc-expand-jurisdictional-reach-what-it-means-for-patent-litigation-in-europe/
[4] https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20368_2025%20Decision%20final%2014082025_signed%20all.pdf
[5] https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Referral%20order%20Dyson%20-%20Dreame_0.pdf