CJEU, 23 Apr 2026, C-132/25 (M.M. Ristorazione)
Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
23 April 2026 (*)
( Reference for a preliminary ruling – Intellectual property – Directive 2004/48/EC – Enforcement of intellectual property rights – Article 9(5) – Provisional measures – Failure to institute proceedings leading to a decision on the merits of the case – National legislation providing for the continuation of the effects of provisional measures intended to anticipate the effects of a decision on the merits of the case )
In Case C-132/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decision of 10 February 2025, received at the Court on the same day, in the proceedings
M.M. Ristorazione Srl
v
Villa Ramazzini Srl,
THE COURT (Eighth Chamber),
composed of O. Spineanu-Matei (Rapporteur), President of the Chamber, S. Rodin and N. Piçarra, Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– M.M. Ristorazione Srl, by B. Pasanisi, avvocato,
– Villa Ramazzini Srl, by M. Machetta, avvocato,
– the Italian Government, by S. Fiorentino, acting as Agent, and by F. Montanaro, avvocato dello Stato, and I. Fresu, procuratore dello Stato,
– the Netherlands Government, by A. Hanje and J. Langer, acting as Agents,
– the European Commission, by C. Biz, J. Samnadda and J. Szczodrowski, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 9(5) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum OJ 2004 L 195, p. 16).
2 The request has been made in proceedings between M.M. Ristorazione Srl and Villa Ramazzini Srl, the proprietor of the figurative mark Mò Mò, concerning an application by M.M. Ristorazione seeking a declaration that an interim order prohibiting M.M. Ristorazione from using the distinctive sign ‘Mò Mò Pizza, Sapori e Salute’ and any other distinctive sign containing the mark Mò Mò was ineffective.
Legal context
International law
3 The Agreement on Trade-Related Aspects of Intellectual Property Rights constitutes Annex 1C to the Marrakesh Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1; ‘the TRIPS Agreement’). The members of the WTO, including all EU Member States and the European Union itself, are party to the TRIPS Agreement.
4 Article 50(1) of that agreement, which is contained in Part III thereof, states:
‘1. The judicial authorities shall have the authority to order prompt and effective provisional measures:
(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods, immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.
…
6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member’s law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
…’
European Union law
5 Recitals 4, 5 and 22 of Directive 2004/48 state:
‘(4) At international level, all Member States, as well as the [European] Community itself as regards matters within its competence, are bound by [the TRIPS Agreement] …
(5) The [TRIPS Agreement] contains, in particular, provisions on the means of enforcing intellectual property rights, which are common standards applicable at international level and implemented in all Member States. This Directive should not affect Member States’ international obligations, including those under the [TRIPS Agreement].
…
(22) It is also essential to provide for provisional measures for the immediate termination of infringements [to intellectual property rights], without awaiting a decision on the substance of the case, while observing the rights of the defence, ensuring the proportionality of the provisional measures as appropriate to the characteristics of the case in question and providing the guarantees needed to cover the costs and the injury caused to the defendant by an unjustified request. Such measures are particularly justified where any delay would cause irreparable harm to the holder of an intellectual property right.’
6 Article 2 of that directive, entitled ‘Scope’, provides, in paragraph 1 thereof:
‘Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned.’
7 Article 3 of the directive, which is entitled ‘General obligation’, provides:
‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.
2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.’
8 Article 9 of that directive, entitled ‘Provisional and precautionary measures’, reads as follows:
‘1. Member States shall ensure that the judicial authorities may, at the request of the applicant:
(a) issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by national law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the rightholder; an interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right; injunctions against intermediaries whose services are used by a third party to infringe a copyright or a related right are covered by Directive 2001/29/EC [of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10)];
(b) order the seizure or delivery up of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce.
2. In the case of an infringement committed on a commercial scale, the Member States shall ensure that, if the injured party demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his bank accounts and other assets. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information.
3. The judicial authorities shall, in respect of the measures referred to in paragraphs 1 and 2, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that the applicant’s right is being infringed, or that such infringement is imminent.
4. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 may, in appropriate cases, be taken without the defendant having been heard, in particular where any delay would cause irreparable harm to the rightholder. In that event, the parties shall be so 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.
5. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 are revoked or otherwise cease to have effect, upon request of the defendant, 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, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer.
…’
Italian law
The IPC
9 Article 131 of decreto legislativo n. 30 – Codice della proprietà industriale, a norma dell’articolo 15 della legge 12 dicembre 2002, n. 273 (Legislative Decree No 30 approving the Industrial Property Code, in accordance with Article 15 of Law No 273 of 12 December 2002), of 10 February 2005 (GURI No 52 of 4 March 2005, Ordinary Supplement No 28) in the version applicable to the facts of the dispute in the main proceedings (‘the IPC’), entitled ‘Injunction’, provides:
‘1. The holder of an industrial property right may apply for an injunction against any imminent infringement of his right and against the continuation or repetition of ongoing infringements. It may, in particular, apply for an injunction against the manufacture, marketing and use of infringing products, as well as an order to withdraw those products from the market against any person who possesses or otherwise has access to them, in accordance with the provisions of the Code of Civil Procedure [(the “CPC”)] relating to precautionary proceedings.
The injunction and the order for removal of those products may be applied for, on the same grounds, against any person whose services are used to infringe an industrial property right.
2. In issuing the injunction, the court may set a sum due for each infringement or failure to comply subsequently identified and for each delay in the execution of the measure.’
10 Article 132 of the IPC, entitled ‘Anticipatory protection and the relationship between proceedings for interim measures and proceedings on the merits of the case’, provides:
‘1. The measures referred to in Articles 126, 128, 129, 131 and 133 may also be granted during the procedure for filing a patent or registration, provided that the application has been made available to the public or to the persons to whom it was notified.
2. If the court issuing the provisional measure does not set a time limit within which the parties must bring proceedings on the merits of the case, those proceedings must be instituted within 20 working days or 30 calendar days, whichever is the longer. The time limit shall run from the date of delivery of the order when it is made at the hearing or, failing that, from the date of its notification. Where additional provisional measures to the description are applied for at the same time as the description or in the alternative, it is the order of the designated court ruling also on those additional measures, which shall be taken into account for the calculation of the time limit.
3. If the proceedings on the merits of the case have not been instituted within the mandatory time limit laid down in paragraph 2, or if they are terminated after having been instituted, the provisional measure shall cease to have effect.
4. The provisions of paragraph 3 shall not apply to urgent measures taken pursuant to Article 700 of [the CPC], or to other provisional measures intended to anticipate the effects of the decision on the merits of the case [(“the anticipatory measures”)]. In that case, either party may institute proceedings on the merits of the case.
…’
The CPC
11 Paragraph 700 of the CPC provides:
‘Outside the cases governed in the preceding sections of this Chapter, any person who, during the time necessary to assert his right in ordinary proceedings has a well-founded reason to fear that that right may be threatened by imminent and irreparable harm, may apply to the court for such urgent measures as appear to him, depending on the circumstances, most appropriate to provisionally secure the effects of the decision on the merits of the case.’
The dispute in the main proceedings and the question referred for a preliminary ruling
12 Villa Ramazzini, an undertaking established in Italy, is the proprietor of the figurative mark Mò Mò.
13 M.M. Ristorazione, an undertaking also established in Italy, used the distinctive sign ‘Mò Mò Pizza, Sapori e Salute’.
14 By interim order of 22 March 2018, the Tribunale di Roma (District Court, Rome, Italy) granted an application for interim protection lodged by Villa Ramazzini. In particular, that court (i) prohibited M.M. Ristorazione from using the sign ‘Mò Mò Pizza, Sapori e Salute’, as well as any other distinctive sign containing the trade mark Mò Mò, (ii) ordered the removal of that sign from M.M. Ristorazione’s business name and (iii) imposed on M.M. Ristorazione a recurring penalty payment for each day of delay in complying with its decision, from the date of notification of the decision in enforceable form.
15 M.M. Ristorazione brought an action before the Tribunale di Roma (District Court, Rome) for a declaration that the interim order of 22 March 2018 was ineffective. It contended that that order had ceased to have effect under Article 132(3) of the IPC and Article 9(5) of Directive 2004/48, because Villa Ramazzini had not brought proceedings on the merits of the case to establish its right.
16 By judgment of 8 July 2020, the Tribunale di Roma (District Court, Rome) dismissed that application for a declaration of ineffectiveness on the basis of Article 132(4) of the IPC, according to which the requirement that provisional measures must cease to apply if proceedings are not brought on the merits of the case in good time does not apply to anticipatory measures, such as, according to that court, the prohibitory injunction imposed on M.M. Ristorazione. According to that court, Article 9 of Directive 2004/48 refers exclusively to measures that are provisional in nature, and not to those which are such as to anticipate the effects of the decision on the merits of the case.
17 M.M. Ristorazione brought an appeal against that judgment before the Corte d’appello di Roma (Court of Appeal, Rome, Italy), which upheld the judgment delivered at first instance. After having classified the prohibitory injunctions referred to in Article 131 of the IPC as anticipatory measures, that court held that, where those measures have become final, they may, on their own, definitively protect the applicant’s right. In that regard, those measures should be distinguished from the measures provided for in Article 9 of Directive 2004/48, which are characterised by the intention of preserving a state of affairs so that the main decision can have effect in the future. According to that court, the rules governing anticipatory measures are intended to comply with the principle of procedural economy, which is governed by Article 3 of that directive.
18 M.M. Ristorazione brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which is the referring court. In support of its appeal, it raises two grounds, the first of which alleges, inter alia, infringement of Article 9 of Directive 2004/48 and of Article 132 of the IPC. According to M.M. Ristorazione, Article 9 includes anticipatory measures such as injunctions to prevent or bring to an end infringements. Furthermore, Article 3 of that directive does not preclude anticipatory measures from ceasing to have effect.
19 The referring court notes, in the first place, that, although Article 132(3) of the IPC lays down the general rule that a provisional measure becomes ineffective if the proceedings on the merits of the case are not brought within the mandatory time limit prescribed, Article 132(4) of the IPC nevertheless provides that that rule does not apply to urgent measures adopted pursuant to Article 700 of the CPC and to other provisional measures intended to anticipate the effects of the decision on the merits, each party being able to bring proceedings on the merits.
20 That court adds that it is apparent from Article 9(5) of Directive 2004/48 that the provisional measures referred to in paragraphs 1 and 2 of that article must be revoked, or otherwise must cease to have effect, at the request of the defendant, if the applicant has failed to institute, within a reasonable period, proceedings leading to a decision on the merits of the case.
21 The referring court states that, according to the case-law of the Court of Justice, the measures referred to in Article 9(5) of Directive 2004/48 are among the legal instruments provided for by the EU legislature which make it possible to mitigate comprehensively the risk that the defendant will suffer harm as a result of provisional measures, thereby ensuring its protection.
22 That court observes that the measures referred to in Article 9(1)(a) of Directive 2004/48 include the interlocutory injunction, which coincides with the prohibitory injunction provided for in Article 131(1) of the IPC, and the payment of a recurring penalty payment, which is equivalent to setting a ‘sum due for each infringement or failure to comply subsequently identified and for each delay in the execution of the measure’, provided for in Article 131(2) of the IPC.
23 In the second place, the referring court states that, at national level, neither case-law nor legal literature provides an unequivocal answer as to whether Article 132(4) of the IPC infringes the provisions of Directive 2004/48.
24 In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 9(5) of Directive [2004/48] be interpreted as precluding a provision of national law, namely Article 132(4) of [the IPC] under which the requirement for the protective measure to cease to have effect in the event of failure to institute the substantive proceedings within a mandatory time limit, contained in Article 132(3) of the [IPC], does not apply to interim measures issued pursuant to Article 700 of the [CPC] and to other protective measures capable of anticipating the effects of the judgment on the substance, even though, in such cases, either party may institute the substantive proceedings?’
Consideration of the question referred
25 By its single question, the referring court asks, in essence, whether Article 9(5) of Directive 2004/48 must be interpreted as precluding the application of a national provision which allows for certain provisional measures, such as provisional measures intended to anticipate the effects of a decision on the merits of the case, to continue to apply even though the applicant has not instituted proceedings leading to such a decision within the period laid down in Article 9(5) and the defendant requests that those provisional measures be revoked or otherwise cease to have effect.
26 As a preliminary point, it should be borne in mind that the TRIPS Agreement, which forms an integral part of the EU legal order, is binding on the European Union and, accordingly, takes precedence over EU secondary legislation, which must be interpreted, as far as possible, in accordance with the provisions of that agreement (see, to that effect, judgment of 27 February 2024, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2024:172, paragraph 70 and the case-law cited).
27 In that regard, recitals 4 and 5 of Directive 2004/48 state that that directive should not affect the obligations of the Member States under the TRIPS Agreement, which is binding on all the Member States and on the European Union itself. Furthermore, Article 9 of that directive reflects the wording of Article 50 of that agreement. It follows that that directive must be interpreted, as far as possible, in accordance with the European Union’s international obligations arising from that agreement.
28 Moreover, according to settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of the context in which it occurs, as well as the objectives and purpose pursued by the act of which it forms part (see judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 19 June 2025, CeramTec, C-17/24, EU:C:2025:455, paragraph 33 and the case-law cited).
29 In the first place, Article 9(5) of Directive 2004/48 requires Member States to ensure that the provisional measures referred to in paragraphs 1 and 2 of Article 9 are revoked or otherwise cease to have effect, at the request of the defendant, if the applicant does not institute proceedings leading to a decision on the merits of the case before the competent judicial authority, within the period to be determined by that judicial authority or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer.
30 It is apparent from the wording of Article 9(5) of Directive 2004/48 that it concerns, first of all, provisional measures falling within the scope of Article 9(1)(a) of that directive. Those measures are intended, inter alia, in an interlocutory injunction, to prevent any imminent infringement of an intellectual property right, or to forbid – on a provisional basis and subject, where appropriate and where permitted by national law, to a recurring penalty payment – the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the rightholder.
31 It also concerns the provisional measures falling within the scope of Article 9(1)(b) of that directive, namely those ordering the seizure or delivery up of goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce.
32 Lastly, it concerns the provisional measures falling within the scope of Article 9(2) of Directive 2004/48, aimed at ordering the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his or her bank accounts and other assets.
33 Thus, the wording of Article 9(5) of Directive 2004/48, read in conjunction with paragraphs 1 and 2 of that article, covers a broad range of provisional measures and does not preclude provisional measures intended to anticipate the effects of the decision on the merits of the case.
34 In the second place, it follows from the context of Article 9(5) of Directive 2004/48 that the purpose of that provision is to confer on a defendant who is the addressee of a provisional measure the right to have that measure set aside if it appears that the applicant is not pursuing the dispute by instituting proceedings leading to a decision on the merits within the period prescribed (see, by analogy, judgment of 13 September 2001, Schieving-Nijstad and Others, C-89/99, EU:C:2001:438, paragraph 42).
35 Article 9(5) of Directive 2004/48 does not require Member States to provide for the automatic cessation of the effects of the provisional measures concerned as a result of the expiry of the period imposed on the applicant to institute proceedings leading to a decision on the merits of the case, since that provision expressly provides that a request by the defendant is required for that purpose (see, by analogy, judgment of 13 September 2001, Schieving-Nijstad and Others, C-89/99, EU:C:2001:438, paragraph 60).
36 Furthermore, Article 9(4) of that directive provides that, even if the provisional measures were taken without the defendant having been heard, they are to be reviewed only upon the defendant’s request.
37 In the third place, as regards the objectives and purpose of Directive 2004/48, it should be noted that the directive is intended to govern the aspects of intellectual property rights related, first, to the enforcement of those rights and, secondly, to infringement of them, by requiring that there must be effective legal remedies designed to prevent, terminate or rectify any infringement of an existing intellectual property right (judgment of 28 April 2022, Phoenix Contact, C-44/21, EU:C:2022:309, paragraph 39 and the case-law cited). In accordance with Article 3(1) of that directive, the measures, procedures and remedies necessary to ensure the enforcement of those rights must, inter alia, be fair and equitable.
38 In addition, Article 3(2) of that directive emphasises that those measures, procedures and remedies must be effective, proportionate and dissuasive and must be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. That provision therefore requires the Member States and, ultimately, the national courts to offer guarantees that, inter alia, the measures and procedures referred to in Article 9 of Directive 2004/48 are not to be abused (judgment of 28 April 2022, Phoenix Contact, C-44/21, EU:C:2022:309, paragraph 43 and the case-law cited).
39 Furthermore, the objective pursued by Article 9(5) of Directive 2004/48, as is also apparent from recital 22 thereof, is to ensure that the provisional measures concerned do not continue to apply indefinitely without a decision on the merits of the case. Article 9(5), read in conjunction with Article 3 of that directive, is therefore intended to prevent disproportionate or abusive use of provisional measures and to avoid the creation of barriers to legitimate trade, by ensuring that the defendant can request their revocation if the applicant does not bring proceedings on the merits of the case.
40 Article 9(5) of Directive 2004/48, which does not provide for any exception to the rule which it lays down, thus constitutes one of the guarantees, in favour of the defendant, which the EU legislature deemed necessary to provide as a counterweight to the prompt and effective provisional measures for which it made provision and which adversely affect the interests of the defendant (see, to that effect, judgment of 28 April 2022, Phoenix Contact C-44/21, EU:C:2022:309, paragraphs 43 to 48).
41 If certain provisional measures may continue to apply without the applicant being required to institute proceedings on the merits of the case, it is liable to lead to situations in which a provisional measure, which appears to be justified in the context of an urgent procedure, but which might subsequently prove to be unjustified, would continue to affect the defendant in the absence of a judicial review of the merits of the case and would be liable to undermine, in the application of measures intended to enforce intellectual property rights, the objective pursued by Article 9(5) of Directive 2004/48 and the principle of proportionality, referred to in Article 3(2) thereof.
42 Furthermore, the principle of procedural economy, invoked by the referring court, cannot prevail over the express provisions of secondary EU law, which require the establishment of guarantees to safeguard the rights of the defence, such as set out in Articles 3 and 9 of Directive 2004/48, read in the light of Article 50 of the TRIPS Agreement and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.
43 Lastly, Article 2(1) of Directive 2004/48, from which it is apparent that that directive applies without prejudice to the means which are or may be provided for, in particular, in national legislation, in so far as those means may be more favourable for rightholders (judgment of 28 April 2022, Phoenix Contact, C-44/21, EU:C:2022:309, paragraph 37 and the case-law cited), cannot be interpreted as allowing certain provisional measures to continue to apply without the applicant, who relies on an intellectual property right, being required to institute proceedings on the merits of the case. Even though a national rule providing for such continued application of the measures may be favourable to holders of intellectual property rights, the EU legislature established the conditions for the application of provisional measures in Articles 3 and 9 of that directive, in a manner consistent with Article 50 of the TRIPS Agreement, while ensuring a balance between the rights of the holder of intellectual property rights and the rights of the defence under Articles 47 and 48 of the Charter of Fundamental Rights. Such conditions of application do not, therefore, fall within the procedural autonomy of the Member States.
44 In the fourth place, the referring court states that, according to some legal literature, the anticipatory measures provided for in Article 132(4) of the IPC do not fall within the scope of the provisional measures referred to in Article 9(5) of Directive 2004/48. According to that literature, those anticipatory measures, unlike provisional measures in the strict sense, are intended to protect intellectual property rights in the same way as a final decision. By anticipating the decision on the merits, they constitute atypical provisional measures.
45 In that regard, it is for the national court to determine whether the anticipatory measures adopted in the main proceedings constitute provisional measures within the meaning of Article 9(1)(a) of Directive 2004/48.
46 However, it may be noted, first, that it is common ground that both the applicant and the defendant may initiate proceedings on the merits of the case, with the result that such anticipatory measures do not appear to be regarded by the legislature as definitive, as the legislature itself classified them as provisional measures (see, by analogy, judgment of 16 June 1998, Hermès, C-53/96, EU:C:1998:292, paragraph 38).
47 Second, it should be noted that it follows from the Court’s case-law that ‘any possible willingness of the parties to accept the interim judgment as a “final” resolution to their dispute cannot alter the legal nature of a measure characterised as “provisional” for the purposes of Article 50 of the [TRIPS Agreement]’ (judgment of 16 June 1998, Hermès, C-53/96, EU:C:1998:292, paragraph 44).
48 In the light of all those considerations, the answer to the question referred is that Article 9(5) of Directive 2004/48 must be interpreted as precluding the application of a national provision which allows for certain provisional measures, such as provisional measures intended to anticipate the effects of a decision on the merits of the case, to continue to apply even though the applicant has not instituted proceedings leading to such a decision within the period laid down in Article 9(5) and the defendant requests that those provisional measures be revoked or otherwise cease to have effect.
Costs
49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 9(5) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights
must be interpreted as precluding the application of a national provision which allows for certain provisional measures, such as provisional measures intended to anticipate the effects of a decision on the merits of the case, to continue to apply even though the applicant has not instituted proceedings leading to such a decision within the period laid down in Article 9(5) and the defendant requests that those provisional measures be revoked or otherwise cease to have effect.
[Signatures]
* Language of the case: Italian.
