With its judgement of October 25, 2012 the European Court of Justice (ECJ) decided that on European level actions for declaration of non-liablity for (alleged) unlawful acts (“actions for a negative declaration”, often brought in cases concerning intellectual property rights) can be brought to suit not only at the court of jurisdiction of the defendant but also at the place of the alleged infringement (for more information on such actions see article of November 5, 2009).
Up to now, the majority of courts have rejected this (see District court of Munich I, Urt. v. 23.10.2008 – 7 O 17209/07), such as e.g. the Court of Appeals of Hamburg in the present ECJ-case. In this particular case a Swiss enterprise requested a declaratory judgment that the defendant Italian competitor is not entitled to particular claims based on antitrust law. The Court of Appeals considered the request as inadmissible, as the choice of the “court of jurisdiction of the unlawful act” could not, in the court’s opinion, be based on the argument that an unlawful act does not exist. However, the ECJ disagreed and declared that the question of jurisdiction could not depend on whether the action has been initiated by the (alleged) infringer or by the (alleged) aggrieved party.
This view is in line with German practice for local jurisdiction on national level. On a European level, however, the practical consequences are more serious, as an action for negative declaration is generally a bar to a subsequently filed action seeking for an injunction, damages etc. Accordingly, the scope for such maneuvers has been extended by the ECJ’s judgement.