Marchés des produits agricoles : la réglementation hongroise imposant à un distributeur de proposer à la vente certains produits agricoles à un prix déterminé et en quantité prédéfinie est contraire au droit de l’Union
I reviewed Emiliou AG’s first Opinion in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB here. Seeing as the case was now reassigned to Grand Chamber (compare with CJEU IRnova where a 3 member chamber rejected reflexivity en stoemelings) and as a new hearing was held solely on the issue of reflexivity, the AG got a second go at the issue.
As I reported in my earlier post I do not think his views on the reflexivity issue (as opposed to his solid views on the A24(4) patent jurisdiction issue) are convincing. This second Opinion is a great resource for the conceptual thinking on reflexive effect (incl its relation to public international law issues of comity) however it does not sway me and neither do I believe will it convince the court.
Lydia Lundstedt has summarised and reviewed the Opinion here and (among others because I am swamped at Melbourne where term is in full swing) I am happy to refer.
The essence of the Opinion is that in the AG’s view under residual private international law (and civil procedure) rules, Member States may refuse to exercise Article 4 (or other) Brussels Ia derived jurisdiction if the claim engages with the validity of third States patents or, as Lydia summarises it: Member States may (1) decline to adjudicate a claim that has as its object the validity of a third-State patent (erga omnes) and (2) refuse to rule (inter partes) on an invalidity defence raised in an infringement action and stay that action while waiting for the authorities in the third State to rule on validity.
I have in fact advocated a change to the rules, de lege feranda. I do not believe reflexive effect exists de lege lata however, even under the roundabound way of letting Member States effect it under their residual rules.
Geert.
EU private international law, 4th ed. 2024, 2.218.
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