BIE februari 2014, p. 41-45, Alexander Tsoutsanis: "One can wonder whether the reasoning of the Supreme Court [red: in Lundbeck/Tiefenbacher] is in sync with the basic tenets the same Supreme Court handed down twenty years earlier in the well-known decision Vredo v Veenhuis. Pursuant to that case, involving patents, "each judicial decision shall at least be motivated in such extent that it gives sufficient insight in the underlying reasoning to render the decision both for the litigants and for third parties - in case of the availability of appeals: including the higher court - verifiable and acceptable." It also adds that "this duty to state reasons, is enshrined in article 121 of the Constitution, 20 Wet Ro, 59 and 429k Rv; its extent, depends on the circumstances of each case."
The 'circumstances' in this case certainly warrant a better explanation than the reasoning above, for a number of reasons. First, the (rather succinct) reasoning of the Supreme Court deviates from the (rather elaborate) opinion of the Advocate-General Hammerstein. In view of these contrasting views, it would be helpful if the Supreme Court explained as to why it took a different view, especially as it involves a point of law which was not explicitly recognized by the Dutch Supreme Court before. Second, the mere reference to foreign precedents elsewhere does not release the Court of its duty to state reasons, based on its own examination of the law. This is also what those foreign courts did, and do, themselves. Third, a quick glance on the proceedings in the United Kingdom, Germany and the Netherlands reveals that those cases are less camparable to the Dutch case than the Court's references above tend to suggest. Even though the patent was the same, various grounds, submissions and decisions were different in each of those jurisdictions."
