Language of document :

Judgment of the Court (Second Chamber) of 13 July 2017 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Bayerische Motoren Werke AG v Acacia Srl

(Case C-433/16) 1

(Reference for a preliminary ruling — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Intellectual property — Community designs — Regulation (EC) No 6/2002 — Articles 81 and 82 — Action for a declaration of non-infringement — Jurisdiction of Community design courts of the Member State where the defendant is domiciled)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Bayerische Motoren Werke AG

Defendant: Acacia Srl

Operative part of the judgment

Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted to the effect that a challenge to the jurisdiction of the court seised, raised in the defendant’s first submission in the alternative to other objections of procedure raised in the same submission, cannot be considered to be acceptance of the jurisdiction of the court seised, and therefore does not lead to prorogation of jurisdiction pursuant to that article.

Article 82 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted to the effect that actions for a declaration of non-infringement under Article 81(b) of that regulation must, when the defendant is domiciled in an EU Member State, be brought before the Community design courts of that Member State, except where there is prorogation of jurisdiction within the meaning of Article 23 or Article 24 of Regulation No 44/2001, and with the exception of the cases of litis pendens and related actions referred to in those regulations.

The rule on jurisdiction in Article 5(3) of Regulation No 44/2001 does not apply to actions for a declaration of non-infringement under Article 81(b) of Regulation No 6/2002.

The rule on jurisdiction set out in Article 5(3) of Regulation No 44/2001 does not apply to actions for a declaration of abuse of a dominant position and of unfair competition that are connected to actions for declaration of non-infringement of a Community design, in so far as granting those applications presupposes that the action for a declaration of non-infringement is allowed.

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1 OJ C 410, 7.11.2016.