2024-12-09 - LD Munich - Avago Technologies v. Realtek Semiconductor - UPC_CFI_755/2024

Art. 32 (1) a) and c) establish jurisdiction of the UPC for issuing provisional measures through which an applicant seeks legal protection against impending (foreign) prohibitions on litigation and/or enforcement. A (foreign) ban on conducting and/or enforcing proceedings violates the general European right to access to justice (Art. 47 EU Charter). The prohibitions also contradict the German right to access to justice under Art. 2 (1), 19 (4) of the German Constitution and are to be qualified as a tortious act within the meaning of § 823 (1) of the German Civil Code. Special circumstances within the meaning of Rule 211.5 RoP cannot be justified only by the (allegedly) long duration of the procurement of a security. Rule 213.1 RoP does not give the court any discretion.

The Munich Local Division issued its first anti-anti-suit-injunction (AASI) order and stated that an anti-suit-injunction (ASI) was a violation of European and German law, also to be qualified as tortious act. The Court further applied Rule 211.5, stating that a security was required in ex-parte injunctions and the duration for the procurement could not be considered special circumstanced that would justify an exception to the rule.