IP preliminary injunctions after the CJEU: does the deadline for bringing proceedings on the merits run while the appeal against the PI is pending?
By order of 22 June 2026, the Court of Milan addressed one of the first practical issues arising from the CJEU judgment in case C-132/25: when does the deadline start running for the rightholder to institute proceedings on the merits in order to preserve the effects of a preliminary injunction in IP matters?
As discussed in our previous post on the CJEU ruling, the Court held that Article 9(5) of Directive 2004/48/EC precludes national legislation under which provisional measures capable of anticipating the effects of a final decision, such as IP preliminary injunctions, may remain in force where the applicant does not bring proceedings on the merits within the prescribed period and the defendant requests that the measure be revoked.
The Italian legislature has since intervened by means of urgent decree-law no. 100 of 12 June 2026, which is currently undergoing conversion into law. Under the decree, where proceedings on the merits are not brought within the relevant deadline, or where such proceedings are brought but subsequently discontinued, the provisional measure does not cease to have effect automatically. Rather, the party against whom the measure was granted must request a declaration that the measure has become ineffective. That request must be filed within 30 days from the expiry of the deadline for bringing proceedings on the merits or, where such proceedings have been brought, from their discontinuance. For provisional measures already granted before the entry into force of Decree-Law no. 100/2026, the deadline for requesting a declaration of ineffectiveness is 60 days from 12 June 2026, the date on which the decree entered into force, and therefore expires on 11 August 2026. It is, however, likely that the provision may be amended during the conversion process, also in light of the comments submitted by associations of IP practitioners.
The order of the Court of Milan fits squarely within this evolving framework. In the case at hand, while the appeal against the preliminary injunction was still pending, the defendant requested that the injunction be revoked on the ground that the rightholder had not yet instituted proceedings on the merits. The Court declared the request inadmissible, holding that the deadline for bringing the merits action had not yet started to run.
According to the Court, the interim phase cannot be regarded as concluded for as long as the appeal brought by the defendant is pending. Such an appeal is a procedural remedy activated by the party against whom the injunction was granted and is aimed precisely at obtaining the revocation of the measure within the interim proceedings. Against that background, waiting for the outcome of the appeal does not undermine the rationale of Article 9(5) of the Enforcement Directive: it does not leave the injunction indefinitely without judicial scrutiny but, on the contrary, subjects it to further review at the defendant's own request. It follows that an application for revocation based on the applicant's failure to institute proceedings on the merits may be brought only after the appeal proceedings have been concluded.
The Court also relied on considerations of procedural economy. If the applicant were required to commence proceedings on the merits while the appeal was still pending, it would have to start ordinary proceedings that might later prove unnecessary if the injunction were revoked on appeal. This would create an evident procedural inefficiency, especially since, following revocation of the interim measure, the applicant might no longer have any interest in pursuing the merits action.
It is to be hoped that this point will be expressly addressed during the conversion of the decree-law, so as to avoid uncertainty and divergent approaches in future case law.
