A couple of things I hadn't noticed before reading Professor Jean-Christopher Galloux's article Le brevet européen à effet unitaire: greffe et chimère, 43 Propriétés Intellectuelles 193, 198-99 (2012), which discusses earlier versions of the two documents discussed below:
First, Regulation (EU) No. 1257/2012--relating to the proposed European Patent with Unitary Effect--has as its 13th recital the following:
The regime applicable to damages should be governed by the laws of the participating Member States, in particular the provisions implementing Article 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.
(Article 13 of the 2004 Enforcement Directive is the one concerning damages for infringement.)
Second, Council Regulation (EU) No. 1260/2012--relating to translation arrangements--states in article 4(4):
In the event of a dispute concerning a claim for damages, the court hearing the dispute shall assess and take into consideration, in particular where the alleged infringer is a SME, a natural person or a non-profit organisation, a university or a public research organisation, whether the alleged infringer acted without knowing or without reasonable grounds for knowing, that he was infringing the European patent with unitary effect before having been provided with the translation referred to in paragraph 1.
(There is similar language in recital (9) to this Regulation.)
So, does the above language from Regulation 1257/2012 decide the question whether damages will be decided in accordance with national law? Does it matter that the quoted language is found only in that regulation, and only in the recitals?
Regarding injunctions, does the language in Regulation 1260/2012 suggest that the determination whether an infringer was not negligent (and hence potentially not subject to an injunction under Rule 118(2) of the Draft Rules of Procedure for the Unified Patent Court) will be a matter of E.U. law, not (or at least not exclusively) national law? Or is the language above only relevant to claims for damages, and only in cases involving European Patents with Unitary Effect?