The regulation of patent enforcement in Europe is characterized by the typical multi-layered EU law system of primary EU law, secondary EU law, i.e. unification and harmonization of member states’ laws by way of regulations and directives, and member states’ laws which in particular implement the EU directives into national law.1 Primary EU law, insofar as it is similar to written constitutional law, establishes the competence and baseline for all EU legal actions. Secondary legislation is based on the competences of the EU established in primary law and unifies certain areas of law (by way of directly applicable unitary regulations) or harmonizes member states’ laws by way of directives that are not directly applicable but addressed to the member states and that typically leave the member states certain leeway for manoeuvre when they implement such directives in their national law systems. Both EU primary and secondary legislation take primacy over national law; this so-called principle of primacy of EU law has been developed by the Court of Justice of the European Union (CJEU) in its case law2 and is meanwhile also laid down in a declaration concerning primacy,3 which is part of the Treaty of Lisbon.4

In the preceding chapters of this book, we have seen a variety of national approaches to the issuance and tailoring of injunctive relief, characterized by a range of similarities and differences among jurisdictions. In this chapter, we synthesize the principal features of these different legal systems, provide an analytical framework for comparing them, and offer our observations about trends and the outlook for the future.

At the time of writing, the United Kingdom remains a member state of the European Union. Accordingly, this chapter is written from that perspective. My thesis is simply stated: European law not merely enables, but requires, the courts of the member states to be flexible when considering whether or not to grant an injunction in a patent case, and to tailor any injunction to the circumstances of the case. An injunction can only be granted when, and to the extent that, it is proportionate and strikes a fair balance between the fundamental rights that are engaged. All that is needed is for the courts of the member states consistently to apply the principles laid down by the legislature and by the Court of Justice of the European Union.