On 11 January 2024, the Court of Justice of the European Union (“CJEU”) issued the expected Judgment in case C-473/22 “Mylan v. Gilead”. We say that the Judgment was expected because, following the Judgment of 12 September 2019 in case C-688/17 “Bayer v. Richter Gedeon” an attempt has been made to create some confusion regarding the interpretation of Art. 9(7) of Directive 2004/48/EC on intellectual property rights. Some holders of exclusive rights have been arguing that those who suffered interim injunctions are not entitled to request the corresponding procedure for damages arising from the enforcement of such measures, as allowed by Spanish procedural law in articles 742 and 745 of Law 1/2000, of 7 January, on Civil Procedure, unless the applicant of the interim injunctions made an abusive use of them.
Until the CJEU Judgment in case c-688/17, the Spanish Courts have been understanding that the liability regime provided for in the civil procedural legislation in this matter is of an objective nature and not based on fault or negligence, without prejudice, in any case, that the existence and quantification of the damage must be proven and that, without doubt, our Courts have analyzed the behavior of the parties such as, for example, the behavior of the defendant in adopting measures to limit the damage (see the Order of the Provincial Court of Barcelona, 15th Sec., No. 1/2013 of 7 January, ECLI:ES:APB:2013:395A).
In our opinion, the correctness of the aforementioned Spanish case law is clearly confirmed by the CJEU Judgment in c-473/22, despite the fact that it has been questioned as a result of certain interpretations of the Judgment in c-688/17.
Thus, the CJEU Judgment that we are commenting on here considers that a strict liability system such as the Finnish one (the State of the Court referring the question for a preliminary ruling), based on the fact that the person who has obtained interim injunctions that are later revoked must compensate the defendant for the damage caused, even though he was not at fault, is in accordance with Article 9(7) of Directive 2004/48/EC.
In this respect, we highlight the following aspects of the judgment:
- That the EU legislator opted for a system of minimum harmonization in Directive 2004/48/EC (point 33).
- That Member States may opt for a strict liability regime or a fault-based liability regime (point 36).
- That the CJEU Judgment in c-688/17 should not be interpreted as meaning that compensation is only recognized in the case of fault of the applicant for interim injunctions (point 38).
- That, if it is ultimately established that the exclusive right has not been infringed, the basis for the interim injunctions disappears, which, in principle, obliges the party requesting them to repair all the damages caused by such unjustified measures (point 46).
- That a strict liability system, based on the risk assumed by the applicant for interim injunctions in requesting them, is proportionate to the Union legislator’s objective of ensuring the enforcement of intellectual property rights while at the same time mitigating the risk of the defendant suffering damage as a result of those measures (point 47).
- That the right to claim damages resulting from the lifting of interim injunctions as a consequence of the nullity of the exclusive right, such as a patent, is consistent with Directive 2004/48/EC (point 49).
In conclusion, Article 9(7) of Directive 2004/48/EC does not preclude national legislation which provides for a mechanism for compensation for any injury caused by a provisional measure, within the meaning of that provision, based on a system of strict liability of the applicant for those measures, in the context of which the court is entitled to adjust the amount of damages by taking into account the circumstances of the case, including whether the defendant played a part in the occurrence of the injury.
In our opinion, as we have said, this confirms the correctness of the Spanish procedural rules on the matter and the interpretation made by our Courts.
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