Important judgment from the Swedish Supreme Court regarding the duty for last instance courts to request preliminary rulings – even when no such claim has been made by the parties

The Swedish courts have not been on the forefront when it comes to requesting preliminary rulings – despite a rather obvious need for such rulings in many cases where claims from one or both parties have been denied by the courts. The unwillingness to seek guidance from the Court of Justice of the European Union (the ECJ) has attracted criticism over the years from the European Commission, academics and practitioners in EU law.

However, in a landmark ruling issued on 20 December this year, Case Ö 5978-21, the Swedish Supreme Court held that there is an obligation for last instance Swedish courts to request preliminary rulings – even if no such claim has been made by the parties – where the case constitutes a precedent and the outcome is dependent on the interpretation of a provision of EU law. Thus, the Supreme Court found that there was a gross procedural error since no preliminary ruling had been requested and remanded the case to the Patent and Market Court of Appeal (which is the last instance court in patent cases).

Background

The Patent and Market Court of Appeal issued a judgment in a case concerning a supplementary protection certificate for a medicine. The supplementary protection certificate for medicinal products is an extended patent protection that a patent holder can obtain as compensation for the long time it takes to get a medicine approved for use by the medical authorities and is regulated by EU rules (Regulation (EC) No 469/2009). Since the Patent and Market Courts constitute a two-instance system the judgment could not be appealed. However, the applicant, the pharmaceutical company AstraZeneca, sought extraordinary measures in the Supreme Court, due to an alleged grave procedural error and claimed that a preliminary ruling should have been requested.

The background was that AstraZeneca’s application for a supplementary protection certificate for a certain combination medicine had been denied by the Swedish Intellectual Property Office. AstraZeneca appealed that decision to the Patent and Market Courts but lost in both instances.

The Supreme Court’s judgment

The Supreme Court found that the failure to make a request for a preliminary ruling constituted a gross procedural error.

The Patent and Market Court of Appeal, which had relied on certain rulings of the ECJ, had rejected AstraZeneca’s appeal holding that certain requirements laid down in the EU Regulation had not been fulfilled. The Supreme Court found that a preliminary ruling should have been obtained, and that the failure to do so constituted a gross procedural error since the Patent and Market Court of Appeal was a last instance court and the judgment constituted a precedence. Moreover, the interpretation of the provision in the EU Regulation was essential to the outcome in the case. Thus, the Supreme Court concluded that the procedural error must be regarded as gross and should be presumed to have influenced the outcome of the case. The case was thereby remanded back to the Patent and Market Court of Appeal.

Concluding remarks

This is a much welcomed judgment which we hope will guarantee a solid application of EU law and lead to more frequent requests for preliminary rulings from Swedish courts already in the near future; both in the civil and the administrative courts.