UPC Weekly - Asking the neighbours for some directions – UPC Court of Appeal makes first referral to CJEU

2026 Week 10

The UPC Court of Appeal (CoA) and the Court of Justice of the European Union (CJEU) are located on opposite sides of the Avenue John F. Kennedy in Luxembourg. It’s a 7-minute walk from one to the other. But it’s taken 144 weeks for the UPC to ask the CJEU for its interpretation of EU law as it applies to the implementation of the UPC Agreement.

What’s the topic? Well unsurprisingly it’s the question of long arm jurisdiction. Specifically, the CoA ask for guidance on whether the UPC has jurisdiction over a non-EU based defendant for alleged infringement of a European patent in a non-UPC EU country (Spain, in this case). There are two added complexities: this is a preliminary injunction (PI) case, and the “anchor defendant” is a service provider that is required by EU product safety regulations in order for the alleged infringing product to be allowed to be sold in the EU.

Cleverly, the CoA has divided its work products into two parts. In one part (Dyson v. Dreame – CJEU referral) they set out the jurisdictional questions on which they feel they must seek guidance from the CJEU because these require interpretation of several points of EU law. The CoA stay the UPC appeal in those respects. But in the other part (Dyson v. Dreame – substantive infringement), they set out their decision on the substantive questions of claim interpretation and infringement, applying these to the defendants/territories with no jurisdictional defence. This second part is not being sent to the CJEU, and is not stayed, so is final.

We reviewed the Hamburg Local Division first instance decision in UPC Weekly 2025 w34. Please read that (again) first – it sets out the rationale for the LD deciding that a PI should be granted in respect of only some of Dreame’s products and against all of the defendants inside the UPC territory and against only some of the defendants in Spain. It also foreshadows the CJEU referral.

This week, we summarise the CoA explanation and the CJEU referral on the jurisdictional issues. Mindful that this article is already long, we’ll come back next week and turn to the equally interesting views of the CoA on claim interpretation, effect of the file wrapper and infringement.

The defendants

The defendants are referred to in the decisions as “Dreame”. There were originally 4 of them and we’ll stick with this numbering here.

Wording of the injunctions at first instance

In slightly abbreviated form, the wording of the PIs granted by the Hamburg LD went like this:

D1, D2, D3, D4 are ordered, by way of preliminary injunction,
Ia. For D1, D2 and D4 in the UPC states to refrain from for making, offering, placing on the market, etc.,
Ib. For D3 in the UPC states to refrain from providing service for making, offering, placing on the market, etc.,
Ic. For D1 and D3 also with respect to Spain,
the product of claim 1.

Scope of the appeal

Dyson appealed the first instance decision because it only found infringement for one, older set of products. But Dyson did not appeal the finding that D2 and D4 did not infringe the patent in Spain.

Dreame appealed the first instance decision, arguing there was no infringement. They also argued that part Ia of the injunction was too broad because it went further than the infringing acts alleged to have been committed. The UPC CoA did not agree. In their view, Dyson are entitled to broader injunction because:

As a general rule, the fact that a party has infringed the patent is sufficient to establish a risk of further infringement through other acts of use, including infringing acts which it had not previously committed.

The referrals to the CJEU are questions concerning parts Ib and Ic of the injunction.

Jurisdiction

At first instance, the LD decided that D3 infringes the patent in the UPC states. D3 serves as the EU authorised representative for D1, under the relevant EU legislation on the sale of consumer electrical products manufactured outside the EU. The LD decided that this role made D3 an indispensable party in the alleged infringement.

The CoA agreed that the UPC has jurisdiction over D3, in view of its domicile in a UPC state. Once that threshold is crossed, the UPC’s jurisdiction is not limited to activities inside the UPC states. With this decided, you might wonder why any questions are being referred to the CJEU. The CoA decided that the extension of the action to Spain raises some tricky questions about the interpretation of the recast Brussels Regulation (which, for the truly keen, is here) and also the EU Enforcement Directive, whose wording finds its way into the UPC Agreement in respect of awarding PIs against intermediaries.

A key question is whether the UPC has jurisdiction over D1’s activities in Spain in view of its relationship with D3, and D3’s role. The CoA expressed its view that a non-EU defendant (D1) may be sued at the UPC provided that there is a co-defendant (D3) domiciled inside the UPC territory, and provided the claims are “closely connected”.

The CoA reviewed the relevance of some previous CJEU case law (Solvay v. Honeywell) but noted the significant difference that here D3 is alleged to be an intermediary, providing services that are alleged to enable D1 to infringe the patent. 

Questions referred to CJEU

In my usual way, I have tried to abbreviate the questions referred to the CJEU to make them more immediately understandable.

The gist of the first question referred is this:

1. When a non-EU defendant is alleged to have committed an infringement of a national part of a European patent which is in force in a non-UPC EU state, and a UPC-based defendant is alleged to be an intermediary whose services are used by the non-EU defendant to infringe in the non-UPC EU state, is this situation capable of leading to “irreconcilable judgments” resulting from separate proceedings?

It is the risk of irreconcilable judgments that might resulting from separate proceedings that can be seen as closely connected that would give the UPC the jurisdiction it is seeking to decide about infringement by D1 and D3 in Spain.

Then the CoA goes on to ask whether, in case there is no jurisdiction over D3 based on the answer to the first question (which does not make a distinction between proceedings on the merits and provisional measures), whether the UPC has jurisdiction for PIs specifically.

The gist of the second question referred is this:

2. Does the UPC have jurisdiction for an EU-wide PI against a non-EU company that is alleged to have infringed a European patent in both the UPC states and non-UPC EU states, by offering the same products in all those EU states through websites that are identical apart from the language?

Then, wondering about the effect of the “intermediary” point, the gist of the third question is this:

3. Is the fact that the non-EU company uses the services of a company that is established in a UPC state in order to infringe a relevant circumstance in answering this second question?

And then finally a catch-all fourth question, again limited to PIs, but apparently not limited to the UPC. The gist of the fourth question is this:

4. Where a third party uses the services of an EU representative to place products on the market in the EU to comply with EU product safety regulations, does EU law preclude the granting of a PI against the EU representative to prevent infringement by the third party?

So what’s the position of each defendant, and why?

It’s easiest to summarise the situation for each defendant and the reasons in a few tables:

What next?

This is the first referral from the UPC to the CJEU. The CJEU will now follow its procedure for receiving submissions, then there will probably be a non-binding opinion of an Advocate General, then the CJEU will issue its “preliminary ruling”.

The timeline is uncertain, but it probably won’t be quick by UPC standards. The CJEU took 2 years and 9 months on the BSH v. Electrolux case.