In part one of this series, which explores the law on preliminary injunctions (PIs) across Europe, we examine the approach taken in the Netherlands.
Applying for a preliminary injunction
In the Netherlands, urgency is a key requirement when applying for a PI (Article 254(1) Code of Civil Procedure (CCP)). The applicant must not only allege, but also substantiate, the urgency of the matter. Urgency is generally assumed when there is an ongoing and systematic infringement causing continuous harm. While there is no statutory deadline for initiating proceedings, undue delay can result in the loss of the required urgency. However, delay alone does not automatically mean that the claimant no longer has an urgent interest in the requested provision (Supreme Court of the Netherlands 29 November 2002, ECLI:NL:HR:2002:AE4553 (Gemeente Gronningen/Reilman), par. 3.4.).
In Dutch IP matters, obtaining an ex parte PI (Article 1019e CCP) is possible, though it is extremely rare in patent cases. To get one, the applicant must demonstrate that the matter is so urgent that any delay would cause irreparable harm. The standard for issuing an ex parte PI is very high: it requires extreme urgency, and the infringement must be evident. The applicant must act immediately upon discovering the infringement and even a short delay can undermine the claim of urgency. In the case of ex parte PIs, the court may require the applicant to provide a security deposit (Article 1019e(2) CCP).
Evidence required
Dutch PI proceedings function effectively as a mini-trial on the merits. To obtain a PI, the applicant must present sufficient evidence to support a strong infringement claim, without requiring further evidence that would go beyond the scope of summary proceedings. As for the assessment of validity, though provisional, it is similar to that in the main proceedings. In addition to these substantive, often technical matters, Dutch courts also look at the balance of interests. For the PI to be granted, the harm that the applicant would suffer if the injunction is not granted must outweigh the harm the defendant would face if the injunction is granted.
Evidence can include written materials, such as affidavits or witness statements. Both parties may submit written evidence up to 24 hours before the oral hearing. Experts and witnesses may also attend the hearing, though the court has discretion to decide whether or not to hear them.
Factors that the courts take into consideration
Whether or not a PI is granted ultimately depends on the preliminary substantive assessment of the alleged infringement and validity resulting from the mini-trial, combined with the weighing of interest. For the latter, the courts inter alia take into account the potential loss or damage caused by further delay, factors related to fairness and the likelihood of success at trial. The court will then determine if granting the injunction is a proportionate response to the specific circumstances of the case.
Refusal of an injunction is exceptional if the IP right is found to be valid and infringed. However, if the defendant invokes an invalidity defence, the PI will be denied if the court finds that there is a "serious, non-negligible chance" that the patent will be revoked in opposition before the European Patent Office (EPO) or declared invalid in proceedings on the merits.
It is noted in this context that the Netherlands applies a strict liability regime for the enforcement of a PI by a patentee that later turns out to be unjustified. If, for example, the patent is later found to be invalid or not infringed in proceedings on the merits, the patentee may be held liable for damages caused by the enforcement or the threat of execution thereof (Supreme Court of the Netherlands 16 November 184, ECLI:NL:HR:1984:AG4901 (Ciba Geigy/Voorbraak)).
Obtaining PIs
In theory, unlike main proceedings, the burden of proof for a PI is lower. A PI is only a provisional measure, not a permanent one (Article 254(1) CCP). The claimant does not need to prove infringement. It only needs to make its case plausible, taking into account the defendant’s arguments. The general rules on evidence do not apply in PI proceedings (Supreme Court of the Netherlands 1 June 2007, NJ 2007, 309, ECLI:NL:HR:2007:BA3525 (Diageo v Esparamos), para. 3.5). In practice, however, courts expect solid substantiation. The limited scope for submitting evidence makes this even more necessary, as a strong defence can otherwise put the claimant in real trouble.
Therefore, PIs are not straightforward to obtain. They demand solid substantiation. The upside is speed: the process moves fast. The claimant typically submits a form with a draft PI application and directly proposes dates for the hearing (Article 254(2) CCP). It is common practice to check the availability of the opposing party. In patent cases, the defendant often sends a statement of defence in advance, even though this is not mandatory. This helps the court, given the complexity of such cases.
Patent PIs are not limited to pharmaceuticals. They are also common in sectors such as automotive and telecommunications (but not in FRAND cases). The same requirements apply.
Enforcement
The PI decision, if declared directly enforceable by the court, takes effect once it is served (Article 430(3) CCP). The decision can be declared enforceable at the request of a party, or ex officio by the court (Article 233 and 258 CCP). The opposing party may in turn ask to suspend enforcement, for example pending main proceedings (Article 438 (3) CCP).
The key enforcement measure of a PI are penalties (dwangsommen). A party incurs penalties if it fails to comply (Article 611a CCP). If it refuses to pay, its bank account may be seized.
Appeal
Parties can appeal the grant of a PI. The appeal deadline is four weeks, starting on the date of the decision (Article 339(2) CCP). As described above, a party may ask the court to declare the PI directly enforceable. This is not automatic, nor does the appeal suspend the effect of the PI.
As described above, if the PI is later annulled or found unjustified, the other party may claim damages as termination has a retroactive effect: the PI is deemed never to have existed. As a result, any penalty payments already paid must be refunded (Supreme Court of the Netherlands 19 May 2000, ECLI:NL:HR:2000:AA5863 (W. v Staat)). The party may also claim compensation for irreversible actions taken to comply, such as obeying the PI or issuing a rectification (Court of Appeal of The Hague 16 February 2006, BIE 2006/98, ECLI:NL:GHSGR:2006:AW3515 (Flywheel/Rip Racer), para. 13).
In principle, appeals in PI cases follow the same rules as appeals in proceedings on the merits. The main differences are the deadlines: four weeks instead of six weeks to file the appeal and to submit briefs (Rule 2.18 of the Rules of procedure for civil cases before the courts of appeal (RoP)).
Because this timeline may undermine a claimant’s urgent interest, a fast-track appeal (spoedappel) is possible (Section 9.1 RoP). In that case, the appellant must file its grounds together with the notice of appeal and explain why urgency exists (Rule 9.1.2 RoP). The respondent must then reply within two weeks (Rule 9.1.3 RoP). If the appellant does not request a fast-track appeal, the respondent may do so when filing its response (Rule 9.1.4 RoP).
In cases of extreme urgency, these rules may be set aside. The most diligent party must then submit a reasoned written request to the Court of Appeal before initiating proceedings (Rule 9.1.12 RoP).
