Preliminary References and the UPC: the Question of Jurisdiction

Since the Unified Patent Court opened, one question of principle has gone unanswered: is the Court a court of a Member State within the meaning of Article 267 of the Treaty on the Functioning of the European Union? The question looked theoretical. It stopped being so on 6 March 2026, when the Court of Appeal referred questions to the Court of Justice for the first time.

The Article 267 test

Before answering a reference, the Court of Justice checks that the referring body has the features of a court or tribunal: established by law, permanent, with compulsory jurisdiction, an inter partes procedure, application of rules of law and independence. Those criteria emerged from a long line of case law, from Vaassen-Göbbels (61/65) to Nordsee (102/81) and Corbiau (C-24/92).

The UPC formally ticks the boxes. It is established by an international agreement, it is permanent, its jurisdiction is exclusive for European patents with unitary effect, and Article 21 of the Agreement requires it to apply EU law and to cooperate with the Court of Justice. Regulation 1215/2012, as amended in 2014, goes further and treats it as a court common to several Member States. Whether the Court of Justice would accept that description, once seised, remained to be seen.

What the Court of Appeal asked

In Dyson v Dreame (UPC_CoA_789/2025 and UPC_CoA_813/2025), the Court of Appeal referred four questions on the extent of its jurisdiction over companies established outside the European Union. It asks the Court of Justice about Article 8(1) and Article 71b(2) of Regulation 1215/2012, about provisional measures against a third-country company selling into several Member States through identical websites, about the role of an intermediary established in the Union, and about the reach of Article 9 of Directive 2004/48 against an authorised representative responsible for regulatory compliance.

The order does not discuss the Court's status as a court or tribunal: it takes it as given and refers under Article 21 of the Agreement. It is now the answer from Luxembourg that will settle, implicitly but necessarily, the institutional question left open since 2023.

The structural weaknesses have not gone away

The reference does not solve everything. The Administrative Committee, an intergovernmental body, combines the regulatory, budgetary and court-organisation powers conferred by Articles 11 to 17 of the Agreement, with no external judicial review. Judicial appointments run through an advisory committee, a selection panel and a decision of the Administrative Committee, in a process that is hard to read from outside. Several technical judges also keep a part-time private practice, with no cooling-off period organised when they leave office.

None of this is academic. The case law of the Court of Justice on judicial independence, from Portuguese Judges (C-64/16) to LM (C-216/18 PPU), treats the appearance of independence as part of the assessment. A court deciding disputes that cover entire markets will meet that standard sooner or later.

What the Court of Justice's answer will settle

If the Court of Justice answers on the substance, it accepts at the same time that the UPC may refer to it, and the institutional construction is consolidated. If it declines, the structure still stands, but review of the conformity of unified patent law with EU law loses its most direct procedural route.

The questions referred also land on ground that is already occupied. In BSH Hausgeräte v Electrolux of 25 February 2025 (C-339/22), the Grand Chamber widened the possibility of ruling on infringement of foreign patents, including outside the Union. International jurisdiction has therefore become the main point of contact between the two judicial orders, and the UPC's first reference fits naturally within it.

Key takeaways

• The UPC Court of Appeal referred questions to the Court of Justice for the first time on 6 March 2026, in Dyson v Dreame.
• The four questions concern jurisdiction over companies established outside the European Union and provisional measures.
• By answering on the substance, the Court of Justice would implicitly recognise the UPC as a court within the meaning of Article 267 of the Treaty.
• The institutional criticisms, the concentration of powers in the Administrative Committee and the status of part-time technical judges, remain untouched.
• The BSH v Electrolux (C-339/22) had already moved the debate towards international jurisdiction.

Frequently asked questions

Can the UPC refer questions to the Court of Justice of the European Union?

Article 21 of the Agreement provides for it, and the Court of Appeal did so for the first time on 6 March 2026. Final confirmation will come with the answer from the Court of Justice.

What is the UPC's first reference about?

Its jurisdiction over defendants established outside the European Union, provisional measures covering products sold in several Member States, and injunctions against an authorised representative responsible for regulatory compliance.

What happens if the Court of Justice declines to answer?

Pending UPC proceedings continue. But review of the conformity of its case law with EU law would lose its most direct route, which would reopen the debate on the Court's place in the EU legal order.

Why does BSH v Electrolux matter to the UPC?

It widens the possibility for a court of a Member State to rule on infringement of foreign patents, a question the UPC meets directly when defendants are established outside the Union.

Dhenne Avocats argues jurisdiction and coordination questions before the Unified Patent Court and the French courts, including cross-border disputes. Talk to us.

This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on the Kluwer Patent Blog on 3 June 2025: Discordant Frequencies: Is the UPC Truly a Jurisdiction?.