The CJEU on Italian IP law: preliminary injunctions cannot become final without proceedings on the merits

In its judgment of 23 April 2026 in M.M. Ristorazione v Villa Ramazzini (C-132/25), the CJEU addressed an important point for Italian IP litigation: whether a preliminary injunction may remain in force where the rightholder does not start proceedings on the merits.

The case concerned the compatibility of Italian law with Article 9(5) of the Enforcement Directive. Under Article 132(3) of the Italian IP Code, a provisional measure ceases to have effect if proceedings on the merits are not brought within the relevant deadline. Article 132(4), however, excludes that consequence for urgent measures under Article 700 of the Italian Code of Civil Procedure and for other provisional measures capable of anticipating the effects of a judgment on the merits, including preliminary injunctions in IP cases.

The Italian Supreme Court asked the CJEU whether that exception is compatible with Article 9(5) of Directive 2004/48/EC. That provision requires provisional measures to be revoked, or otherwise cease to have effect, at the defendant’s request if the applicant does not institute proceedings leading to a decision on the merits within the period set by the court or, failing that, within 20 working days or 31 calendar days, whichever is the longer.

The CJEU’s answer was no.

According to the Court, Article 9(5) applies to all provisional measures referred to in Article 9(1) and (2) of the Directive. It does not distinguish between ordinary provisional measures and measures that anticipate the effects of the final decision. Nor does it allow Member States to carve out an exception for the latter.

The point is not merely procedural. Article 9(5) gives the defendant a specific safeguard: if the applicant obtains provisional relief but does not pursue the case on the merits, the defendant must be able to bring the measure to an end. A preliminary injunction cannot therefore continue to bind the defendant indefinitely without any substantive review of the alleged infringement.

The Court also rejected the argument based on procedural economy. The fact that an anticipatory measure may make subsequent proceedings unnecessary in practice does not allow national law to remove the protection expressly granted to the defendant by EU law. The Directive requires enforcement measures to be effective, but also proportionate and applied in a way that safeguards against abuse and respects the rights of the defence.

Nor can Article 2(1) of the Directive lead to a different conclusion. Although Member States may provide measures that are more favourable to rightholders, they cannot do so by upsetting the balance struck by the Directive between effective IP enforcement and procedural safeguards for alleged infringers.

The ruling has immediate practical consequences. 

For rightholders, a preliminary injunction can no longer be treated as a way to obtain a lasting result without bringing the merits action.

For defendants, the judgment strengthens an important procedural defence. Where no merits action has been brought, they may rely on Article 9(5) to challenge the continued effects of the injunction. The judgment may also prompt renewed challenges to preliminary injunctions granted in the past and not followed by proceedings on the merits.

For Italian courts, Article 132(4) of the IP Code will now have to be read, so far as possible, in conformity with EU law. If such an interpretation is not possible, the provision will have to be disapplied to the extent that it allows provisional IP measures to remain effective despite the applicant’s failure to bring proceedings on the merits.

The judgment does not weaken provisional relief in IP disputes: preliminary injunctions remain a key tool in enforcement litigation. But the CJEU has drawn a clear line: they may be powerful, and they may anticipate the practical effects of a final decision, but they cannot become final without proceedings on the merits where the defendant objects.