Ericsson v Apple (Rechtbank Den Haag, KG ZA 21-914, 2021)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The interim relief judge of The Hague District Court dismissed Ericsson’s claims to restrain five Apple group companies from seeking, anywhere in the world, an anti-suit injunction against its actions on 4G and 5G essential patents. The judge first confined jurisdiction over the non-Dutch companies to injunctions taking effect in the Netherlands and Belgium. The judge then held that no concrete threat of a preventive anti-suit injunction had been shown, and that an injunction to enforce a covenant not to sue is not unlawful. The judgment sets out the conditions for a preventive anti-anti-suit injunction in the Netherlands.

Facts and procedure

Ericsson brought interim proceedings against Apple Retail Netherlands, Apple Benelux, Apple Inc, Apple Distribution International and Apple Sales International (point 2.2). A provisional decision had been given on 18 October 2021 (point 1.1), to which the judgment refers for most of the facts. Ericsson feared that Apple would bring ex parte proceedings to prevent it from enforcing its patents or to enforce a covenant not to sue (point 4.34). It sought primarily a prohibition covering the world outside the EU and the Lugano States, alternatively limited to those States, and then to the Netherlands, backed by penalty payments (point 3.1).

The applicable law

Jurisdiction over the Dutch companies followed from Article 4(1) of Regulation 1215/2012 (point 4.1), over Apple Inc from Article 7(1) Rv (points 4.2 to 4.8) and over the Irish companies from Article 8(1) of the Regulation (points 4.20 to 4.23). The alleged unlawfulness of an anti-suit injunction is governed by Article 4(1) of the Rome II Regulation (point 4.43).

Question

Can the interim relief judge restrain an implementer in advance from seeking an anti-suit injunction abroad absent a concrete threat, and is an injunction to enforce a covenant not to sue unlawful?

Decision

The judge declined jurisdiction over Apple Inc, Apple Distribution and Apple Sales for injunctions taking effect outside the Netherlands and Belgium, and otherwise dismissed the claims (points 5.3 and 5.4). As the Dutch companies operate only in the Netherlands and Belgium, a fear of injunctions taking effect elsewhere was bound to fail against them and could not ground jurisdiction by connection (points 4.15 and 4.17). The judge accepted, with Ericsson, that a preventive anti-suit injunction taking effect in the Netherlands or Belgium may be unlawful as conflicting with fundamental rights (point 4.38). But no concrete threat was shown: that other implementers had obtained such injunctions, or that Apple refused to undertake not to seek one, was not enough, Ericsson having no right to such an undertaking; Apple had moreover stated that it had never sought an anti-suit injunction (points 4.40 and 4.41). An injunction to enforce a covenant not to sue is of a different nature: being the only suitable means of stopping a breach of such a covenant, it is unlawful under neither Dutch nor Belgian law (points 4.44 to 4.46).

Key points for practice

• A preventive anti-anti-suit injunction requires a concrete threat from the defendant itself; the practice of other implementers is not enough (point 4.40).
• An implementer’s refusal to undertake not to seek an anti-suit injunction does not in itself amount to such a threat (point 4.40).
• Jurisdiction by connection over non-EU companies is confined to the territories where the anchor defendants operate (points 4.15 and 4.17).
• Practical point: a patentee seeking an anti-anti-suit injunction in the Netherlands should produce concrete evidence of an imminent step by the defendant itself, and target companies active in the territories concerned.

Provisions applied

Regulation (EU) No 1215/2012

Arts 4(1), 6, 7(2) and 8(1)

Other provisions

Regulation (EC) No 864/2007 (Rome II), Art. 4(1); Lugano Convention

National law

Arts 6(e), 7(1), 102, 1019h and 1019i Rv; Arts 70, 80 and 83 Rijksoctrooiwet 1995; Art. 10:3 BW

Case law cited

CJEU, Kolassa (C-375/13), Universal Music (C-12/15), Marinari, Kronhofer, Mines de potasse d’Alsace, Cartel Damage Claims; HR, Dahabshiil (ECLI:NL:HR:2016:1054); HR 29 March 2019; HR 14 April 2017; Gerechtshof Den Haag, Ono v Pfizer (ECLI:NL:GHDHA:2018:2606)

Prepared by Dhenne Avocats from the text of the decision (rechtspraak.nl open data service), consulted on 11 October 2026. Only the official text is authoritative.