C-144/86
ECLI:EU:C:1987:279
- Súd
- Súdny dvor Európskej únie
- IČS
- 61986CC0144
- Zdroj
- eur-lex.europa.eu ↗
GUBISCH MASCHINENFABRIK v PALUMBO
O P I N I O N O F M R ADVOCATE GENERAL MANCINI delivered on 11 June 1987*
Mr President, of the Convention, had to be resolved in Members of the Court, favour of the German court, which was the court first seised.
1. The Italian Court of Cassation seeks an interpretation of the concept of lis pendens The tribunale di Roma dismissed the pursuant to the first paragraph of Article 21 objection, stating that the two cases did not of the Brussels Convention of 27 September involve the same cause of action and it 1968 on Jurisdiction and Enforcement of could not therefore decline jurisdiction in Judgments in Civil and Commercial Matters accordance with the aforesaid provision. (hereinafter referred to as 'the Convention'). Gubisch accordingly appealed to the Court of Cassation on the issue of jurisdiction. That court considered it necessary to submit By a summons served on 12 December the following question to the Court of 1974, Giulio Palumbo, an Italian citizen, Justice for a preliminary ruling: brought proceedings against Gubisch Maschinenfabrik KG, whose registered office is in Flensburg (Federal Republic of 'Does a case where, in relation to the same Germany), before the tribunale di Roma contract, one party applies to a court in a (District Court, Rome) for a declaration Contracting State for a declaration that the that the order he had placed with Gubisch contract is inoperative (or in any event for for a machine tool was inoperative. Mr its discharge) whilst the other institutes Palumbo argued that he had revoked the proceedings before the courts of another order even before it reached Gubisch for Contracting State for its enforcement fall acceptance. In the event that the tribunale within the scope of the concept of lis should hold that a sales contract had been pendens pursuant to Article 21 of the concluded, Mr Palumbo claimed in the Brussels Convention of 27 September 1968?' alternative its rescission for lack of consent or in any event its discharge for failure to comply with the mandatory time-limit for In these proceedings, written observations delivery. were submitted by Gubisch, the Commission of the European Communities, the Government of the Federal Republic of In entering an appearance Gubisch lodged a Germany and the Government of the Italian preliminary objection to the effect that the Republic. Italian court lacked jurisdiction on the ground that it had already instituted proceedings before the Landgericht 2. The view is generally held that the Flensburg seeking payment from Mr concept of lis pendens to which Article 21 Palumbo for the machine tool purchased by refers must be interpreted independently, the latter on the basis of a valid contract. that is to say without reference to its defi- There was therefore a situation of lis nition under the lex fori. There is pendens as between the two actions, which, disagreement, however, as regards the pursuant to the first paragraph of Article 21 conditions governing the operation of that
* Translated from the Italian.
OPINION OF MR MANCINI —CASE 144/86
provision. According to the Italian Convention; that is to say, only that inter- Government, that provision must be inter- pretation is capable of ensuring that preted literally. In other words, for lis proceedings are swift and straightforward, pendens to arise, the actions brought by the so as to improve the mobility of national parties must involve 'the same subject- judgments. matter and the same cause of action'. Otherwise, the relationship, if any, between proceedings pending before the courts of 3. Both points of view are plausible and are different States is determined and regulated skilfully argued. In my view, however, the in the Convention by the rules on related first is more persuasive. actions. Consequently, and for the same reasons as those specified by the tribunale di Roma, the question submitted for a I would recall that, according to the first preliminary ruling must be answered in the paragraph of Article 21, lis pendens arises negative. 'where proceedings involving the same subject-matter and cause of action and between the same parties are brought in the courts of different Contracting States'. However, the other interveners maintain Under those conditions, 'any court other that the objection of lis pendens is designed than the court first seised shall of its own to prevent the same dispute from being motion decline jurisdiction' in favour of the brought before the courts of different court first seised. On the other hand, the States, with the result that judgments may third paragraph of Article 22 provides that be given which are irreconcilable and for . 'actions are deemed to be related where that very reason incapable of being they are so closely connected that it is recognized (Article 27 (3)). The provision expedient to hear and determine them under consideration therefore operates not together to avoid the risk of irreconcilable only in the case of proceedings involving judgments resulting from separate exactly the same subject-matter and cause of proceedings'. In those circumstances, the action but also in the case of actions which, court other than the court first seised 'may whilst differing in scope, are based on the ... stay its proceedings'. same legal circumstances.
As I have said, on reading those two provisions it is clear in the first place that In this case, for instance, it is common the authors of the Convention intended to ground that in order to be able to consider regulate lis pendens and related actions in an the substance of the action for enforcement independent manner, and took care to brought by Gubisch the German court will specify their constituent elements and their in the first place have to establish whether a consequences. The two provisions are valid contractual relationship exists between designed to prevent as far as possible any the parties, which is precisely the main issue conflicts between judgments within the to be resolved by the Italian court. Hence a territory of the Community. Hence the need literal interpretation of Article 21 leads to for a uniform definition of the situations to the same problem being raised in different which they relate. courts, but that danger is avoided by a broad interpretation of Article 21 which requires the court other than the court first Turning to the substance of the rules, I seised to decline jurisdiction. Moreover, would point out that the solutions they only the latter interpretation is in provide for diverge quite clearly from one conformity with the spirit of the another. Article 22 requires that the two
GUBISCH MASCHINENFABRIK v PALUMBO
actions should be 'so closely connected' as pendens, the courts of the Contracting States to make it expedient to join them. would have complied with the obligation to Moreover, the proceedings in question must decline jurisdiction only if that obligation 'be pending at the same level of adjudi- had been conditional on straightforward cation, for otherwise the object of the and unequivocal criteria. Accordingly, the proceedings would be different and one of the fact that the first paragraph of Article 21 parties might be deprived of a step in the makes the existence of 'proceedings hierarchy of the courts' (Report by Mr P. involving the same subject-matter and cause Jenard on the Convention of 27 September of action and between the same parties' the 1968, Official Journal 1979, C 59, p. 41, basis for the objection does not reflect under Article 22; my italics). In the case of excessive formalism. On the contrary, the lis pendens, it is not sufficient that the twofold or threefold use of the adjective actions should be 'connected'; they must 'same' ('samme', 'même', 'derselbe', 'idios', involve the same subject-matter, the same 'stesso' or 'medesimo', 'dezelfde') shows
cause of action and the same parties. That that that choice was dictated by a specific explains the mandatory nature of the policy aim. If that is true, the broad inter- provision in question, which requires the pretation according to which the provision court other than the court first seised to should also be applicable in the case of decline jurisdiction even in the absence of an actions which are different, although based application to that effect by one of the parties. on the same legal circumstances, ultimately confuses matters which the Convention was designed to keep apart, namely related The first paragraph of Article 21 is therefore actions and lis pendens.
very strict. It is certainly stricter than the corresponding national rules or those in other conventions — and, I should add, Moreover, even from a practical point of quite innovative. In most of the Contracting view that interpretation does not provide all States the objection of lis alibi pendens does the advantages which are claimed for it by not exist, and the conventions which do its exponents. With regard to obligations, make provision for it impose the further for instance, it would be sufficient to requirement that the decision of the court challenge the validity of a contract in order first seised must be capable of being to paralyse, by raising an objection of lis recognized in the State concerned. From the pendens, any subsequent action brought on point of view of the consequences, the basis of that contract before the courts moreover, the court first seised usually has of another State.
That is certainly not the the option of declining jurisdiction or is able objective pursued by the first paragraph of to choose between declining jurisdiction and Article 21 of the Convention. staying the proceedings (see, generally, Droz, Competence judiciaire et effets des jugements dans le Marché commun, Paris, 4. With that in mind, I now turn to this 1972, p. 179 et seq.; for international rules, case. It is clear from the order for reference see Article 20 of The Hague Convention of that the action pending before the tribunale 1 February 1971 on the Recognition and di Roma is for a declaration that a contract Enforcement of Foreign Judgments in Civil of sale is inoperative because the offer was and Commercial Matters). revoked, whilst the action before the German court assumes the validity of the contract and seeks to obtain judgment for In my view, those factors are decisive.
It is the amount of the price. As the Commission clear that, with legislative traditions that are has pointed out, the two cases do not so unfavourable to the concept of lis involve either the same subject-matter or the
OPINION OF MR MANCINI —CASE 144/86
same cause of action. Both cases are indeed paragraph of Article 21 there are concerned with the question whether a those — Germany and the Commission, to contract exists and whether it is operative. be precise — who see the risk of a conflict In the case pending before the Landgericht of decisions on the same question. Flensburg, however, that question is secondary or, to be more precise, That fear is exaggerated, to say the least. preliminary to consideration of the According to the second paragraph of substance of the action to enforce payment Article 22, a court other than the court first of the price. In such circumstances, it is seised 'may5, on application by the parties, impossible to endorse the argument of the decline jurisdiction 'if the law of that court German Government that, for the purposes permits the consolidation of related actions of the first paragraph of Article 21, the and the court first seised has jurisdiction action for a declaration that the contract is over both actions', and it may in any event inoperative is substantially incorporated in stay the proceedings. Furthermore, those the action to enforce the contract. From the two possibilities do not imply that of disre- procedural point of .view, the relief sought garding an objection raised by one of the by the plaintiff in the two cases differs parties. On the contrary, the court other widely in terms of its scope and its effects. than the court first seised is required to rule on that objection. As I have said, in other Instead, the' two actions o are 'so closely words, the rules laid down in the case of connected' — on à preliminary issue — 'that related actions are also designed to prevent it is expedient to hear and determine them the delivery of conflicting judgments, and together' (third paragraph of Article 22). In they do so by means which, whilst they may other words, the actions are related, and not be automatic like those provided for in since that does not permit the transfer of the case of lis pendens, are not any the less jurisdiction provided for by the first effective.
5. In the light of all the foregoing considerations I suggest that the Court answer the question submitted by the Italian Court of Cassation by order of 28 May 1986 in proceedings brought by Gubisch Maschinenfabrik KG against Giulio Palumbo as follows:
'The first paragraph of Article 21 of the Brussels Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that lis pendens arises only where proceedings between the same parties involving the same subject-matter and the same cause of action are brought in the courts of different Contracting States. The term lis pendens does not cover a case where one party applies to a court in a Contracting State for a declaration that a contract is inoperative (or in any event for its discharge) whilst the other institutes proceedings before the court of another Contracting State for its enforcement.'