C-129/83

In Case 129/83

REFERENCE to the Court under the Protocol of 3 June 1971 on the inter- pretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters by the Oberlandesgericht München [Higher Regional Court, Munich] for a preliminary ruling in the action pending before that court between

SIEGFRIED ZELGER, Munich,

and 1 — Language of t h e Case:German.

JUDGMENT OF 7. 6. 1984 — CASE 129/83

SEBASTIANO SALINITRI, Mascali (Italy),

Facts and Issues

The facts of the case, the course of the place of performance of the obligation to procedure and the observadons sub- repay the loan. The defendant in the mitted under Article 20 of the Protocol main action disputed the loan obligation on the Statute of the Court of Justice of and the agreement on the place of per- the EEC may be summarized as follows: formance.

The document initiating the proceedings which is at issue in this case was lodged I — Facts and p r o c e d u r e at the registry of the Landgericht München I [Regional Court, Munich I] The two parties in the main action are on 5 August 1976 and served on the merchants, of whom one has his place of defendant on 13 January 1977. In business in Munich in the Federal addition the plaintiff brought further Republic of Germany and the other in proceedings involving the same cause of Mascali in Sicily. action before the Tribunale Civile [Civil District Court] in Catania, Italy, by a like document which was lodged with The plaintiff in the main action brought that court on 22 or 23 September 1976 proceedings against the defendant for and served on the defendant on 23 repayment of an amount outstanding on September 1976. a loan dating back to 1975 and 1976. He claims that the parties had by express The Landgericht at first dismissed the oral agreement designated Munich as the proceedings brought by the plaintiff in

ZELGER / SAUNITRI

vention ought to have been observed. The the Zivilprozeßordnung [Code of Civil Oberlandesgericht München [Higher Procedure], and before the court in Regional Court, Munich] also dismissed Catania by service of an equivalent the action on the ground that it lacked document on 23 September 1976. In the international jurisdiction. Subsequently opinion of the Landgericht München the the Bundesgerichtshof [Federal Supreme court in Catania had jurisdiction under Court] referred to the Court of Justice for Article 21 of the Convention which a preliminary ruling the question whether provides : an informal agreement between merchants "Where proceedings involving the same

It therefore stayed the Article 17 have been observed." proceedings and by order of 22 June 1983 referred the following question to Accordingly the Bundesgerichtshof an- the Court for a preliminary ruling: nulled the decisions of the lower courts "For the purpose of resolving the and remitted the case to the Landgericht question which court of a Contracting for reconsideration and a fresh decision. State was first seised of proceedings Once again the Landgericht dismissed the (Article 21 of the Convention) it is the action as inadmissible on the ground that it moment at which the document initiating lacked international jurisdiction. Although them was lodged with the court the parties had agreed that Munich should ("Anhängigkeit") that is decisive or the be the place of performance of the con- moment at which — by service of that tractual obligation, the lack of jurisdiction document on the defendant — the stemmed from the fact that the same cause proceedings have become fully instituted of action had already given rise to the ("Rechtshängigkeit")?" bringing of proceedings before a court in The order making the reference was Catania, which was the court for the place registered at the Court Registry on where the defendant was domiciled and 8 July 1983.

In accordance with Article 20 of the decline jurisdiction in favour of the Protocol on the Statute of the Court of Landgericht München I. Justice of the EEC written observations were submitted by the plaintiff in the The plaintiff in the main action contends main action, Mr Zeiger, represented by that the wording of Article 21 incor- Messrs. Grasmüller, Peter and Hard, porates the concept of "anhängig" rather Rechtsanwälte of Munich, by the Italian than "Rechtshängig" or "erhoben". In Government, represented by its Agent, support of that contention he puts Mr O. Fiumara, and by the Commission forward three arguments: of the European Communities, rep- resented by its Legal Adviser, Mr E. Zim- 1. The wording of Article 21 is clear. mermann, assisted by Wolf-Dietrich There are no grounds for supposing Krause-Ablass, Rechtsanwalt of Düssel- that the authors of the Convention dorf. were not aware of the distinction between "anhängig" and "rechts- Upon hearing the report of the Judge- hängig" or "erhoben". Rapporteur and the views of the German lawyers took part, together Advocate General, the Court decided to with others, in the drafting of the open the oral procedure without any Convention and they were just as well preparatory inquiry. aware of the distinction as the other By order of 7 December 1983 the Court negotiators concerned. assigned the case to the Fourth Chamber 2. Article 21 of the Convention refers to pursuant to Article 95 (1) and (2) of the "proceedings involving the same cause Rules of Procedure. of action and between the same parties" which "are brought (an- hängig)" and Article 22 refers to "ac- III — Written observations tions" which "are brought (erhoben) in the courts of different Contracting The plaintiff in the main action states States." that the application initiating the The authors therefore demonstrated proceedings which is at issue in this case in express terms that they knew how was lodged at the registry of the Land- to distinguish between the concepts of gericht München I on 5 August 1976. As "anhängig" and "erhoben" (in the far as it has been possible to ascertain, sense of "rechtshängig sein " ) . the application made in Italy was lodged with the Italian court on 22 September 3. In deciding which court of the 1976. The application in Italy was served Member States should deal with the on the defendant on 23 September 1976 substance of his claim it is altogether and the application lodged with the sensible and appropriate to refer to Landgericht München I was served on the moment at which the document 13 January 1977. initiating the proceedings was lodged with the court. Like the German Once the document initiating the provisions relating to venue, the proceedings had first been lodged with Convention allows a choice to be the Landgericht München the proceed- made between a number of courts. It ings thus became "anhängig". The court must therefore be left to the parties in Catania was therefore a court other to choose the court with which and than the court first seised of the the moment at which the document proceedings and should therefore, in initiating the proceedings is lodged. A accordance with the provisions of Article party has made its choice and, at the 21 of the Convention, of its own motion same time, has done all that is in its

power, when it lodges that document stances are such as to lead it to believe with the court it has chosen. Service is that “the same proceedings are pending not a matter for which the parties are in the courts of another country”; and responsible. For that reason the finally that “The Committee decided question of jurisdiction cannot depend that there was no need to specify in the on delays in effecting service. text the point in time from which the proceedings should be considered to be pending, and left this question to be settled by the internal law of each It is appropriate for the courts, too, to Contracting State”. focus on the moment at which the document initiating the proceedings is

The Italian Government considers that the German version of Article 21 may be An express reference to the fact that interpreted in the same manner as the pendency (pendenza) is the sole deciding Italian and French texts. The heading of factor and that when an action becomes the section in the French text is pending is determined by the national “Litispendance et connexité”. Article 21 legal systems is to be found in the of the Convention provides that where “report” on the Convention (Bulletin of proceedings involving the same cause of the European Communities, supplement action and between the same parties are 12/72), which states that “By virtue of brought (siano state proposte) in the Article 21, the courts of a Contracting courts of different Contracting States, State must, even of their own motion, any court other than the court first decline jurisdiction if proceedings con- seised (il giudice successivamente adito) cerning the same claim are already must of its own motion decline pending in the court of another State”; jurisdiction in favour of that court.

JUDGMENT OF 7. 6. 1984 — CASE 129/83

In proceedings. Although the 'text refers to particular, Article 21 of the Convention proceedings which are "anhängig" and does not expressly state whether service subsequently, in Article 22, to actions of the document initiating the pro- which are "erhoben" whereas, in both ceedings is a precondition for the cases, in the Italian version the term bringing of an action in the sense of "proposte", in the French version the "Erhebung" or "Anhängigmachung". term "formées" and in the Dutch version the term "aanhängig" is used, primary The various terms used in Articles 21 importance must be attached to the and 22 of the Convention, that is to say: concept of pendency expressed in the heading of the section ("Rechts- "Lis pendens" ("Rechtshängigkeit" (head- hängigkeit") and to the order in which ing of Section 8 of the Convention) courts are seised (das später angerufene Gericht — il giudice successivamente "Proceedings . . . brought" ("Klage . . . adito — la jurisdiction saisie en second anhängig gemacht") (first paragraph of lieu — any court other than the court Article 21) first seised) in relation to the moment at which the proceedings become pending, "The court . . . seised" ("das angerufene so that the "Anhängigkeit" of the Gericht") (first paragraph of Article 21 proceedings to which the provision refers and Article 22) is significant only in so far as — and as soon as — it determines when the "Actions . . . brought" ("Klagen . . . proceedings become pending (Rechts- erhoben") (first paragraph of Article 22) hängigkeit"). are of no assistance.

without its being possible to establish a Consequently the Italian Government material difference between them. The submits that the question referred to the French text does not make a distinction Court for a preliminary ruling should be between "Klage . . . anhängig gemacht" answered as follows: „For the purpose of (first paragraph of Article 21) and resolving the question which court of a "Klagen . . . erhoben" (first paragraph of Contracting State was first seised of Article 22). The wording is the same in proceedings for the purposes of Article both cases ("demandes formées"). 21 of the Brussels Convention it is necessary to take into account the Although service of the document moment at which each action became initiating the proceedings is a re-

quirement laid down by the Convention refer to the national procedural law in in another context, it is, however, not order to establish the requirements for possible to infer from this that the the valid institution of proceedings, that Convention also makes such service a does not mean, however, that the prerequisite for the bringing of pro question submitted by the national court ceedings. As it noted in the Schlosser is to be answered exclusively by Report of 9 October 1979 on the reference to the procedural law Convention on the Association of applicable to the courts seised of the Denmark, Ireland and the United proceedings in this case, namely those in Kingdom to the Convention (Official Germany and Italy. Since the bringing of Journal 1979, C 59, p. 71), service of the an action often extends over a certain document instituting the proceedings is period of time (the lodging of the not always necessary for a claim to document initiating the proceedings at become pending.

be sought and that therefore the re quirements governing the bringing of It is true that no inference can be drawn proceedings should also be laid down in from the wording of Articles 21 and 22 a uniform manner for all the Contracting of the Convention which would enable States. In the present state of Com the questions referred to the Court to be munity law and of unification of the answered since for the reasons set out procedural law of the Member States, it above the differences in the choice of is, however, impossible to give effect

JUDGMENT OF 7. 6. 1984 — CASE 129/83

III — O r a l p r o c e d u r e plea of lis alibi pendens. For that reason the moment at which the proceedings are definitively instituted must be retained as At the sitting on 16 February 1984, the the deciding factor for the purposes of defendant, represented by Jürgen Blume, Article 21 of the Convention. Rechtsanwalt of Munich, and the Commission, represented by E. Zimmer- On the other hand it may be argued that mann, Legal Adviser, assisted by for the sake of protecting the defendant W. D. Krause-Ablass, Rechtsanwalt of the moment at which an action becomes Düsseldorf, presented oral argument and pending ("rechtshängig"), which is de- answered questions put by the Court. cisive for the purposes of Article 21 of the Convention, should be fixed at the earliest possible point in time so that the The defendant in the main action defendant does not lose, in so far as he contended that the German court did not has learned in some other way that the have jurisdiction because notice of the document initiating the proceedings has application was given in Italy before been lodged, the right to raise the plea of being given in Germany.

arising from delayed service. Ac- hängigkeit" had no effect on the inter- cordingly, with regard to the question pretation of the Convention, an inter- which of two actions pending in the national convention between several circumstances envisaged by Article 21 of Member States. It must therefore be the Convention should be given priority interpreted in only one way.

3 The Landgericht dismissed the proceedings on the ground that it lacked international jurisdiction. Before the Landgericht the proceedings were definitively instituted only on 13 January 1977, by sen ice of the document initiating them (Paragraphs 261 (1) and 253 (1) of the Zivilprozeßordnung [Code of Civil Procedure]) whereas they had been definitively instituted before the court in Catania by service of an equivalent document on 23 September 1976. In the opinion of the Landgericht München the court in Catania had jurisdiction by virtue of Article 21 of the Convention.

JUDGMENT OF 7. 6. 1984 — CASE 129/83

4 The plaintiff appealed to the Oberlandesgericht contending that the decisive time was not the moment at which the document initiating the proceedings was served but the moment at which the court was seised of the proceedings.

5 The Oberlandesgericht München considered that the dispute raised questions concerning the interpretation of the aforesaid Convention. It therefore stayed the proceedings and by order of 22 June 1983 referred the following question to the Court for a preliminary ruling:

"For the purpose of resolving the question which court of a Contracting State was first seised of proceedings (Article 21 of the Convention) is it the moment at which the document initiating them was lodged with the court ("Anhängigkeit") that is decisive or the moment at which — by service of that document on the defendant — the proceedings have become fully instituted ("Rechtshängigkeit") ?"

6 Article 21 of the Convention provides:

9 The defendant in the main action considers that the difference between the German words used in Articles 21 and 22 of the Convention as being equivalent to “formées” in the French version cannot have any effect on the interpretation of the Convention. He contends that the concept of bringing proceedings within the meaning of Article 21 of the Convention must be interpreted as meaning the definitive initiation of the action and that that concept must be determined by reference to the lex fori of the court seised.

10 It should be pointed out that the rules of procedure of the various Contracting States are not identical as regards determining the date at which the courts are seised.

1 1 It appears from information on comparative law placed before the Court that in France, Italy, Luxembourg and the Netherlands the action is considered to be pending before the court from the moment at which the document initiating the proceedings is served upon the defendant. In Belgium the court is seised when the action is registered on its general roll, such registration implying in principle prior service of the writ of summons on the defendant.

12 In the Federal Republic of Germany the action is brought, according to Paragraph 253 (1) of the Zivilprozeßordnung, when the document initiating the proceedings has been served on the defendant. Service is effected of its own motion by the court to which the document has been submitted. The procedural stage between the lodging of the document at the registry of the court and service is called “Anhängigkeit”. The lodging of the document initiating the proceedings plays a role as regards limitation periods and compliance with procedural time-limits but in no way determines the moment at which the action becomes pending. It is clear from the aforementioned Paragraph 253, read together with Paragraph 261 (1) of the

16 The answer to the question raised by the Oberlandesgericht München is therefore that Article 21 of the Convention must be interpreted as meaning that the court “first seised” is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.

ZELGER / SALINITRI

Costs

17 The costs incurred by the Italian Government and by the Commission, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

T H E C O U R T (Fourth Chamber)