Provisional Measures
1. Definition and purpose
‘To no one will we sell, to no one will we refuse or delay, right or justice’, this 800-year old promise from the Magna Charta Libertatum of 1215 (1297 c 9, clause 40) still poses a significant challenge to the practice of civil procedure today. To fulfil this promise, the different European states have created several forms of ‘accelerated proceedings’ that include—besides provisional measures—payment procedures for the recovery of debts (for a European model Regulation (EC) No 1896/2006 creating a European order for payment procedure), summary proceedings, fast-track proceedings, trial by the record (a form of summary procedure where the plaintiff relies entirely on documentary evidence) and simplified procedures for small claims disputes (for a European model Regulation (EC) No 861/2007 establishing a European Small Claims Procedure).
From these other forms of accelerated proceedings, provisional measures may be distinguished as being ‘provisional’ in several ways. Provisional measures are provisional from a procedural perspective as they preserve a final and conclusive decision for the proceedings on the merits, making the applicant liable for any damage caused by provisional measures that are later revoked or lapse due to any act or omission by the applicant or which are found to be unjustified by a later decision on the merits (cf Art 9(5) and (7) Dir 2004/48). Provisional measures are provisional from a remedial perspective as, in principle (for the exception of anticipatory measures (see 2. below)), they shall not prejudge or pre-empt the decision on the substance of the case, but only preserve the effectiveness of relief by final judgment in granting appropriate interim protection which, in principle, falls short of the remedies that could be obtained as a result of a decision on the merits. Finally, provisional measures may be provisional from an evidentiary perspective as the need to deliver a quick decision may force the court to decide on the basis of readily available evidence only, leaving the full assessment of the case to the proceedings on the merits. The purpose of provisional measures is to preserve the effectiveness of relief by final judgment and thus the effectiveness of the underlying substantive law (cf 8.1 ALI/UNIDROIT Principles of Transnational Civil Procedure).
2. Classification
In the modern law of civil procedure, three types of provisional measures may be distinguished: measures to secure the enforcement of an expected decision on the merits (conservatory measures); measures to maintain or regulate temporarily a certain state of affairs; and anticipatory measures that award remedies equivalent to those which would be available in a judgment on the merits (such as interim payment) (10.1.1–10.1.3 Storme-Principles). A further type of provisional measures can (arguably) be seen in measures to preserve or obtain evidence. While this categorization seems to be, at least in principle and with the exception of evidentiary measures and, perhaps, interim payment accepted in legal scholarship, its application in EU law is not immediately obvious. Instead, EU legislation uses the term ‘provisional measure’ (or similar terms such as ‘protective’ or ‘interim’ measure) in a number of instruments in different contexts and for different purposes, such as in Arts 278, 279 TFEU/242, 243 EC, Arts 31, 47 Brussels I Regulation (Reg 44/2001), Art 20 Brussels IIbis Regulation (Reg 2201/2003), Art 103 Community Trade Mark Regulation (Reg 207/2009), Art 90 Community Design Regulation (Reg 6/2002), Arts 7 and 9 Intellectual Property Enforcement Directive (Dir 2004/48), Art 18(1) E-Commerce Directive (Dir 2000/31) and Art 11(2) Unfair Commercial Practices Directive (Dir 2005/29).
Where the European Court of Justice (ECJ) has been asked to interpret the term, it has not given a uniform and overarching definition of ‘provisional measure’, but rather seemed to prefer a context-specific approach. For example, in the jurisdictional context of Art 31 Brussels I Regulation, the Luxembourg court has defined ‘provisional, including protective, measures’ within the meaning of Art 31 Brussels I Regulation ‘as referring to measures which (…) are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter’ (ECJ Case C-261/90 – Reichert [1992] ECR I-2149 para 34). Such measures may, for the purposes of Art 31 Brussels I Regulation, include interim payment orders, provided that, ‘first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, secondly, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made’ (ECJ Case C-391/95 – van Uden [1998] ECR I-7091 para 47). On the other hand, an application for a witness to be heard before the proceedings on the substance are initiated, with no justification other than the interest of the applicant in deciding whether to bring proceedings on the substance of the case, shall not constitute a provisional measure in the meaning of Art 31 Brussels I Regulation (ECJ Case C-104/03 – St Paul Dairy [2005] ECR I-3481 paras 17, 24).
A slightly different definition can be found in the jurisprudence on Art 50 TRIPS, which has served as a model for Arts 7(1) and 9(1) of the Intellectual Property Enforcement Directive 2004/48. In this context, the ECJ has held that an order expressly characterized in national law as an ‘immediate provisional measure’, adopted ‘on ground of urgency’, with the purpose of putting an end to an infringement of trade mark rights and which is, in law, not regarded as definitive because the parties have the right to initiate proceedings on the merits of the case, meets the definition of ‘provisional measure’ within the meaning of Art 50(1) TRIPS (ECJ Case C-53/96 – Hermès [1998] ECR I-3603 paras 37 ff). In addition, the ECJ held that it does not alter the qualification of an order as a provisional measure in the context of Art 50 TRIPS that the other party is summoned and entitled to be heard (as provisional measures may be adopted with or without prior hearing of the other party), that the judge hearing the application gives a reasoned decision, that the measure is adopted on an assessment by the judge of the substantive aspects of the case, that an appeal may be brought against the measure or that, in practice, the parties may accept the interim judgment as a final resolution of their dispute (ECJ Case C-53/96 – Hermès [1998] ECR I-3603 paras 40–4).
Leaving aside differences that may be explained by the specific context of the case, the term ‘provisional measure’ may be defined in the abstract as any measure, adopted on grounds of urgency and not regarded as definitive because the parties have the right to initiate proceedings on the merits of the case, to secure property (see a) below) or evidence (see d) below) or to preserve or regulate a factual or legal situation (see b) and c) below) so as to ensure the effectiveness of the decision on the merits and safeguard rights the recognition of which may be sought from a court having jurisdiction as to the substance of the case. This abstract definition may best be illustrated by examples of the different types of provisional measures.
a) Conservatory measures
Conservatory measures may be distinguished between those securing assets for the enforcement of (prospective) money judgments and those securing the enforcement of other judgments (mostly the seizure of certain goods). In order to secure the effective enforcement of money judgments, most legal systems in Europe provide for the possibility of attachment, sometimes accompanied by an arrest order (France: saisie conservatoire and sûreté judiciaire, Art 67 Loi No. 91-650 du 9.7.1991, Arts 210 ff Décret No. 92-755 du 31.7.1992; Germany: Arrest, §§ 916, 930, 932 ZPO; Italy: sequestro conservativo, Arts 671, 677–679 CPC; Spain: embargo preventivo, Art 727 No 1 LEC; Switzerland: Arrest, Arts 271–281 SchKG). An alternative model is a personal order restraining the defendant from dealing in certain assets (England: freezing injunction, CPR 25.1(1) (f); but also Austria, §§ 379(3) No 2–5, and 379(4) EO). Only of subsidiary importance is the personal arrest (Austria: § 386 EO; England: injunction ne exeat regno; Germany: §§ 918, 933 ZPO). EU law provides for a precautionary seizure of the movable and immovable property of the alleged infringer of an intellectual property right committed on a commercial scale, including the blocking of his/her bank accounts and other assets, if the injured party demonstrates circumstances likely to endanger the recovery of damages (Art 9(2) Dir 2004/48). To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information. Article 9(2) Dir 2004/ 48 was inspired by the English freezing injunction but may be implemented in the Member States’ law also in the form of arrest and attachment, provided that the effectiveness of the seizure order is guaranteed.
The effective enforcement in respect of movable property for purposes other than enforcing money judgments is secured by seizure, sequestration or a prohibition against selling the relevant property (Austria: § 382 No 1-7 EO; England: CPR 25.1(1) lit c(i); France: Art 1961 Code civil, Arts 155 ff Décret 1992; Germany: §§ 935, 938(2) ZPO, 135 f Bürgerliches Gesetzbuch (BGB); Italy: Art 670 No 1 CPC; Spain: Art 727 No 2, 3, 9 LEC; Switzerland: Art 262 ZPO). On the level of EU law, Art 9(1)(b) Dir 2004/48 makes it possible to apply for an order to seize or deliver up goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce. Further examples of seizure orders may be found in Art 7(2) Dir 2009/24, Art 8(2) Dir 2001/29 and Art 89(1)(b) and (c) Reg 6/2002 (see also Art 12(3) of the Anti-Counterfeiting Trade Agreement (ACTA)).
b) Measures to preserve or regulate a factual or legal situation
A second form of provisional measures are measures to preserve or regulate a factual or legal situation which are—by reason of their many different facets—normally covered by a general provision on provisional measures (Austria: § 381 No 2 EO; England: CPR 25.1(1)(a); France: Arts 808, 809(1) CPC; Germany: § 940 ZPO; Spain: Art 727 No 11 LEC; Switzerland: Art 262, in particular (a) and (b) ZPO). Such measures may maintain the status quo or establish a provisional arrangement of some kind.
c) Anticipatory measures
i) Interlocutory injunctions
The interlocutory injunction, ie an order to restrain conduct of the defendant to prevent current or imminent harm, takes a position between preserving (see b) above) and anticipatory measures. On the one hand, such an order may preserve a certain factual or legal situation by restraining the defendant from creating irreversible facts which a later judgment on the merits could not reverse. On the other hand, it may anticipate the content of a final injunction as the order itself (‘refrain from doing X’) is very often similar or even identical to the form of permanent injunction which the plaintiff would be awarded at the end of the proceedings on the merits. Across a comparative panorama, the interlocutory injunction seems to be widely recognized in Europe (Austria: § 381 No 2 EO; England: CPR 25.1(1) (a); France: Arts 808, 809(1) CPC; Germany: § 940 ZPO; Italy: Art 700 CPC; Spain: Art 727 No 7 LEC; Switzerland: Art 262 (a) ZPO). Following the model of Art 50(1)(a) TRIPS (Art 12(1)(a) ACTA), several provisions of EU law guarantee the possibility of interlocutory injunctive relief to prevent an (actual or imminent) infringement of (in particular) intellectual property rights (Art 9(1)(a) Dir 2004/48; Arts 102(1)1, 103 Reg 207/2009; Arts 89(1)(a), 90 Reg 6/2002; Art 94(1) Reg 2100/94; Art 8(2), (3) Dir 2001/29; Art 18(1) Dir 2000/31). It may thus be said that interlocutory injunctions should be considered as a form of provisional measure, irrespective of the position taken in general towards the provisional nature of anticipatory measures.
ii) Positive orders, in particular interim payment
A much more diverse picture can be drawn as far as interim payment orders are concerned. Most generous in this regard seem to be the French courts which grant interim payment in the référé-procedure (Arts 809(2), 484 ff CPC), both prior to and during a pending procedure on the merits, based on rather liberal requirements. A similarly liberal position seems to be taken in England (interim payment order, CPR 25.1 (1)(k), (6), (7)) and Italy (Art 186bis, 186quater CPC), while the courts in Germany, Switzerland and Spain take a much more restrictive stance. German courts grant interim payment orders only in exceptional circumstances (Leistungsverfügung by analogy to § 940 ZPO; see also § 381 No 8 (a) Austrian EO). The new Swiss ZPO limits interim payment orders to those cases where the law explicitly provides for such an order (Art 262 (e) ZPO). A restrictive position can also be found in Spain due to the prohibition of pre-empting the decision on the merits (homogeneidad, Art 726 No 2 LEC) and the absence of an explicit provision permitting interim payment in the catalogue of Art 727 LEC.
The ECJ has, in order to ensure the practical effect of the decision on the substance of the case, accepted that interim payment may be considered as a provisional measure in the sense of Art 31 Brussels I Regulation. However, this requires that ‘first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made’ (ECJ Case C-391/95 – van Uden [1998] ECR I-7091 para 47). A more sceptical position is found in European procedural law as far as positive orders are concerned that do not order payment of money. While it is in general possible to grant such orders (eg France: Art 809(2) CPC; England: mandatory injunction, CPR 25.1(3); Germany: Leistungsverfügung by analogy to § 940 ZPO; Switzerland: Art 262(d) Swiss ZPO), they seem to be granted only reluctantly in practice to avoid a pre-emption of proceedings on the merits.
iii) Positive orders to enforce ancillary rights
A slightly different panorama presents itself for positive orders to enforce ancillary rights (such as rights of information, disclosure or inspection). In this regard, a certain tendency may be observed—at least in intellectual property litigation—to permit the enforcement of ancillary rights by way of provisional measures, thus limiting the prohibition against provisional measures which pre-empt the decision on the merits to the enforcement of the ‘main’ right (such as damages or injunctive relief) (Art 9(2)2 Dir 2004/ 48; England: CPR 25.1(1)(g), (n), (o); Germany: § 140b(7) PatG, § 19(7) MarkenG, § 101(7) UrhG; Spain: Art 727 Nr. 4 LEC).
d) Evidentiary measures
Close relatives to ancillary rights of information are measures to preserve or obtain evidence. Article 50(1)(b) TRIPS (Art 12(1)(b) ACTA) and Art 7(1) Dir 2004/48 explicitly characterize these measures as ‘provisional’. On the other hand, the ECJ has considered an application for a witness to be heard before the proceedings on the substance are initiated, with no justification other than the interest of the applicant in deciding whether to bring proceedings on the substance of the case, as no provisional measure within the meaning of Art 31 Brussels I Regulation (ECJ Case C-104/03 – St Paul Dairy [2005] ECR I-3481 paras 17, 24). This inconsistency may be explained by the diverging approaches to evidentiary measures that are found in national procedural laws. While some countries view the preservation of evidence as a special part of the evidentiary proceedings (Austria: §§ 384 ff ZPO; Germany: §§ 485 ff ZPO; Italy: Arts 692 ff CPC; Spain: Arts 293 ff LEC), others consider such measures as a form of provisional relief (England: CPR 25.1(1)(c)(ii)–(iv), (h), (i), (j); France: Art 145 CPC). The latter view seems preferable (now endorsed by recital 22 and Art 2(b) of the Commission’s Proposal for reform of the Brussels I Reg 44/2001, COM(2010) 748 final), in particular in view of existing supra-national rules such as Art 50(1)(b) TRIPS and Art 7(1) Dir 2004/ 48 that pre-determine at least the position in intellectual property procedure (Germany: § 140c(3) PatG, § 19a(3) MarkenG, § 101a(3) UrhG; Italy: Arts 121 f, 128–30 Codice della proprietà industriale). A classification as a form of provisional measure is also consistent with the general purpose of provisional measures to safeguard the effectiveness of relief by final judgment as the preservation of evidence—even if it does not directly secure the substantive right in question—makes it possible to prove that right in court and thus secures the substantive right at least in an indirect, procedural way. Further, the extension of provisional measures to the preservation of evidence does not necessarily contradict the St Paul Dairy-decision as the application in St Paul Dairy had no justification other than the interest of the applicant in inspecting evidence in order to decide whether to bring proceedings on the substance. Thus, the ECJ might have taken a different position if the measure had at least partly served the purpose of not only inspecting and assessing, but also of preserving evidence.
3. Development of the law
The development of the law demonstrates a remarkable trend towards legal protection through provisional measures. This may be explained by the increasing and sometimes unacceptable duration of normal proceedings, exemplified by the flood of complaints concerning a violation of the right to a hearing in a reasonable time under Art 6(1) ECHR. On the other hand, and maybe more importantly, rapid economic, technological and social change, along with the trend towards ‘privatization’ of law enforcement, has created a particular need for swift legal protection through the courts. ‘Justice delayed is justice denied’, this holds true not only for market-related fields such as intellectual property or competition law, but also for family law disputes over parental care, maintenance or protection against domestic violence where only prompt relief will be effective relief. As a consequence, provisional measures tend to overlap with or even replace proceedings on the merits, either by granting relief in the form of an interim measure that effectively pre-empts the decision on the merits, or by the fact that rapid developments in the markets render final decisions obtained after years of litigation obsolete, or at least by the parties accepting the provisional measure as the final resolution of their dispute.
In spite of their practical importance, provisional measures were long neglected in international conventions on jurisdiction and enforcement where it was repeatedly argued that the national laws are too disparate to make any harmonization possible. In recent years, this has started to change, inspired both by jurisprudence of the ECJ which developed standards for granting provisional measures under Art 31 Reg 44/ 2001 and Art 50 TRIPS, and by international conventions and European directives in special fields such as intellectual property law (TRIPS, Dir 2004/48, ACTA). As a result, it now seems possible to identify certain common minimum standards for provisional measures, at least in those fields which are directly influenced by European legislation.
4. Contours of EU law
a) Guarantee of provisional measures
Based on the fundamental right to effective judicial protection (Art 47 EU Charter of Fundamental Rights, fair trial) and the obligations of Member States to effectively enforce EU law (Art 19(1)3 TEU/10 EC, principle of effectiveness), the ECJ established a guarantee of judicial protection by provisional measures, holding that ‘a court seised of a dispute governed by Community law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law’ (ECJ Case C-432/05 – Unibet [2007] ECR I-2271 paras 37 ff, 67). This extension of the right to judicial protection to provisional measures marks a considerable achievement compared with the jurisprudence of the ECtHR concerning Art 6 ECHR which has held in the past ‘that Art 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to the proceedings on the merits, as such measures cannot, as a general rule, be regarded as involving the determination of civil rights and obligations (ECtHR No 26315/03 – Dogmoch v Germany; ECtHR No 44734/98 – Libert v Belgium; for exceptions ECtHR No 51591/99 – Markass Car Hire v Cyprus). However, the Grand Chamber of the ECtHR has recently abandoned this restrictive position, pointing to the fact that ‘in circumstances where many Contracting States face considerable backlogs in their overburdened justice systems leading to excessively long proceedings, a judge’s decision on an injunction will often be tantamount to a decision on the merits of the claim for a substantial period of time, even permanently in exceptional cases’ (ECtHR No 17056/06 – Micallef v Malta para 79). Therefore, Art 6(1) ECHR shall now apply also to interim measures, provided that the ‘measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force’ (ECtHR No 17056/06 – Micallef v Malta para 85). At the same time, the ECtHR accepts that certain procedural safeguards ‘apply only to the extent compatible with the nature and purpose of the interim proceedings at issue’ (ECtHR No 17056/06 – Micallef v Malta para 86).
b) Jurisdiction
The rules on jurisdiction (PIL) to grant provisional measures distinguish in general between jurisdiction that is accessory to jurisdiction on the substance of the case, and jurisdiction that is independent from it (Art 31 Brussels I Regulation 2001/44; Art 103 Reg 207/2009; 10.4 Storme-Principles; see also Arts 35 and 36 of the Commission’s Proposal for reform of the Brussels I Reg 44/2001, COM(2010) 748 final). On the one hand, a court having jurisdiction as to the substance of a case (eg based on Arts 2, 5–24 Reg 44/2001) also has (accessory) jurisdiction to order any provisional or protective measures that may prove necessary, without that jurisdiction being subject to any further conditions such as enforcement in the forum state (ECJ Case C-391/95 – van Uden [1998] ECR I-7091 paras 19, 22). On the other hand, courts not having jurisdiction as to the substance of the case may grant provisional measures based on an independent ground of jurisdiction (Art 31 Reg 44/2001) if ‘a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the State of the court before which those measures are sought’ exists (ECJ Case C-391/95 – van Uden [1998] ECR I-7091 para 40). It is not fully clear how such a ‘real connecting link’ may be established, but it seems to exist if either the measures may be enforced in the forum state or otherwise take effect in that state.
The additional jurisdiction granted by Art 31 Reg 44/2001 is based on the consideration that the courts, at the place where the assets subject to the measures sought are located, are those best able to assess the circumstances that may lead to the grant or refusal of the measures sought or to the laying down of procedures and conditions which the plaintiff must observe in order to guarantee the provisional character of the measures authorized (ECJ Case C-391/95 – van Uden [1998] ECR I-7091 para 39). In particular, jurisdiction at the place where the measure may be enforced ensures quick enforcement and thus quick relief, as it avoids any time-consuming procedures for recognition and enforcement of foreign judgments. The additional jurisdiction may, however, create a particular need to coordinate provisional measures granted by several courts from different Member States. A model for such coordination may be found in Art 20(2) Brussels IIbis Regulation 2201/2003, providing that provisional measures granted on the basis of Art 20(1) Reg 2201/2003 (equivalent to Art 31 Reg 44/2001) ‘shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate’ (for the reform discussion as concerns provisional measures COM(2009) 175 final, question 6 and Art 31 of the Commission’s Proposal for reform of the Brussels I Reg 44/2001, COM(2010) 748 final; on Reg 2201/2003 see also ECJ Case C-497/10 - PPU – Mercredi paras 70-1).
c) Conditions for granting interim relief
As for the conditions for granting interim relief, EU law shows a certain trend towards requiring that, prima facie, the action is well founded in fact and law (fumus boni iuris) and that the order is urgent insofar as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action (periculum in mora). Where appropriate, the judge hearing such an application must also weigh up the interests involved (in the context of Arts 278, 279 TFEU/242, 243 EC, ECJ C-208/03 P-R – Le Pen [2003] ECR I-7939 para 77; cf 10.2 Storme-Principles). A similar condition of a prima facie case in fact and law may be found in Dir 2004/48, requiring the applicant for provisional measures to provide any reasonably available evidence in order to establish with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed, or that such infringement is imminent (Arts 7(3), 9(3) Dir 2004/48; Art 50(3) TRIPS; Art 12(4) ACTA). The further requirements of urgency and balancing of the interests involved may be deduced from the general principle of fairness and proportionality (Art 3 Dir 2004/48) which is mirrored in the law of provisional measures (recital 22 Dir 2004/48).
d) Procedure and appeal
In general, the defendant should be heard before any provisional measure is granted. However, if the applicant can establish that the effectiveness of relief requires an immediate decision or a surprise effect upon the defendant, the court may take, in appropriate cases, ex parte provisional measures without the defendant having been heard (Arts 7(1)3, 9(4) Dir 2004/48; Art 50(2) TRIPS; Art 12(2) ACTA; 10.3.1 Storme-Principles; 8.2 ALI/UNIDROIT-Principles; Art 2(a) and recital 25 of the Commission’s Proposal for reform of the Brussels I Reg 44/2001, COM(2010) 748 final). In that event, the parties shall be informed without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable time after notification of the measures, whether those measures shall be modified, revoked or confirmed (Art 50(4) TRIPS: Arts 7(1)4, 5, 9(4)2, 3 Dir 2004/48; 10.3.1 Storme-Principles; 8.2 ALI/UNIDROIT Principles, for reform proposals COM(2009) 175 final, question 6). Another special form of appeal is possible by an application to revoke provisional measures if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority (Arts 7(3), 9(5) Dir 2004/48; Art 50(6) TRIPS; cf 10.7.3 Storme-Principles). As far as procedure in general is concerned, the judge deciding in interim proceedings is less strictly bound to the parties’ requests for relief, having a greater discretion in fashioning the appropriate remedy than in proceedings on the substance (10.1.1, 10.3.2 Storme-Principles).
e) Liability for damages and security
The accelerated conduct of the proceedings and the abbreviated time for preparing submissions and weighing the relevant evidence creates a heightened risk of incorrect decisions. The applicant for provisional measures who has caused this risk is thus made liable for appropriate compensation, irrespective of his fault, if the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that they were unjustified on the merits (Arts 7(4), 9(7) Dir 2004/48; Art 50(3)7 TRIPS; Art 12(5) ACTA; 8.3 ALI/UNIDROIT-Principles). In order to secure a possible claim for compensation, granting a provisional measure may be made subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant (Arts 7(2), 9(6) Dir 2004/48; Art 50(3) TRIPS; Art 12(4) ACTA; 8.3 ALI/UNIDROIT-Principles).
Literature
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