No. 142 - August 4, 2026
Merz Pharmaceuticals LLC et al. v Viatris Santé – LD Paris, UPC_CFI_1901/2026, order of 30 July 2026
Can an earlier application for provisional measures before the UPC make the UPC the "court first seised" for the purposes of the Brussels I Recast Regulation?
In a decision on a preliminary objection, the Paris Local Division answered this question in the negative. The Court held that applications for provisional measures and actions on the merits are separate proceedings. At the same time, it refused to stay the UPC infringement proceedings despite parallel proceedings before the French courts, confirming the UPC's broad discretion under Article 30 Brussels I Recast.
Merz first obtained provisional measures before the UPC based on a French SPC. Viatris subsequently commenced proceedings before the Tribunal Judiciaire de Paris seeking revocation, a declaration of non-infringement and, alternatively, a compulsory licence. Merz then filed an infringement action on the merits before the Paris Local Division.
Viatris argued that the French court had been seised first and requested that the UPC decline jurisdiction or stay the proceedings pursuant to Articles 29 and 30 Brussels I Recast.
The Court rejected the preliminary objection.
First, it held that an application for provisional measures and an infringement action on the merits are separate proceedings pursuing different objectives. Accordingly, the earlier PI application did not make the UPC the court first seised for the subsequent infringement action.
Secondly, although the national proceedings and the UPC action were "related" within the meaning of Article 30 Brussels I Recast, the Court declined to stay the proceedings. It emphasised that Article 30 confers discretion and that a stay would undermine the UPC's objective of providing swift and efficient proceedings. Since the UPC was expected to decide the infringement action before the French court reached its decision, no stay was justified.
A prior UPC application for provisional measures does not make the UPC the court first seised for a later action on the merits.
PI proceedings and infringement proceedings are distinct proceedings for the purposes of Article 29 Brussels I Recast.
Even where parallel national proceedings are "related" under Article 30 Brussels I Recast, the UPC will not readily stay its proceedings if doing so would undermine the efficient resolution of the dispute.
