BIE december 2013, p. 364-371, Simon Dack: "What is striking about the reasoning behind this part of the judgment is the way in which the Court avoids discussing any of the policy or real-world concerns highlighted by English judges in the cases referred to above. Instead, the Court of Justice approaches the question on a purely formalistic basis. The Court first reworks the second question into an inquiry as to 'whether Article 22(4) of Regulation No 44/2001 must be interpreted as precluding, in circumstances such as those at issue in the case in the main proceedings, the application of Article 31 of that Regulation'. It then plods towards its conclusion by noting that the Articles 22(4) and 31 'are intended to regulate different situations and each has a different field of application'. The Court notes that the two provisions 'do not refer to one another'; that they are included in separate sections of the Regulation'; and that they are 'independent in scope' from one another. Oh really? This leads the Court to the conclusion that Article 22(4) 'cannot, as a rule, be interpreted so as to derogate from Artiele 31 and, consequently, cause it to be disapplied'.
Having come to this condusion on the basis of a semantic analysis of the structure of the Regulation, the Court of Justice goes on to assess whether it is in accordance with the previous guidance on Article 16(4) of the Brussels Convention given by the Court in GAT v. LuK. It finds that it is, because the Court before which the interim proceedings have been brought does not make a final decision on the validity of the foreign parts of the patent. Instead, it merely makes an assessment as to how the foreign Court having jurisdiction under Article 22(4) is likely to decide. The Court of Justice notes too that the referring Court has said that it will refuse to hand down an injunction if it considers that there is a reasonable, non-negligible possibility that the patent invoked would be declared invalid by the competent court...
Having come to this condusion on the basis of a semantic analysis of the structure of the Regulation, the Court of Justice goes on to assess whether it is in accordance with the previous guidance on Article 16(4) of the Brussels Convention given by the Court in GAT v. LuK. It finds that it is, because the Court before which the interim proceedings have been brought does not make a final decision on the validity of the foreign parts of the patent. Instead, it merely makes an assessment as to how the foreign Court having jurisdiction under Article 22(4) is likely to decide. The Court of Justice notes too that the referring Court has said that it will refuse to hand down an injunction if it considers that there is a reasonable, non-negligible possibility that the patent invoked would be declared invalid by the competent court...