C-116/02

3. The aim of the Brussels Convention, 1 — Original language: French. 2 — (OJ 1972 L 299, p. 32). Convention as amended by the according to its preamble, is to facilitate the Convention of 9 October 1978 on the accession of the recognition and enforcement of judgments Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, in accordance with Article 293 EC, and to and amended text p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic {OJ 1982 strengthen in the European Community the L 388, p. 1), by the Convention of 26 May 1989 on the legal protection of persons therein estab- accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of lished. According to the relevant recital in 29 November 1996 on the accession of the Republic of that preamble, it is necessary for that Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1). A consolidated version of the purpose to determine the international Convention, as amended by those four conventions of accession, is published in OJ 1998 C 27, p. 1 (hereinafter the jurisdiction of the courts of the Contracting 'Brussels Convention'). States. I - 14696

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4. The relevant provisions concern, on the property, the courts of the Contracting one hand, jurisdiction and, on the other, State in which the property is situated are the recognition in a Contracting State of to have exclusive jurisdiction, regardless of judgments delivered by the courts of domicile. another Contracting State.

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or exclusive jurisdiction by virtue of Article 16.'

(3) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have 11. The Brussels Convention is also been aware and which in such trade or intended to prevent irreconcilable judg- commerce is widely known to, and ments from being given. To that effect, regularly observed by, parties to Article 21 is worded as follows: contracts of the type involved in the particular trade or commerce con- cerned. 'Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is Agreements... conferring jurisdiction shall established. have no legal force if they are contrary to the provisions... [laid down in matters relating to insurance and consumer contracts], or if the courts whose jurisdic- tion they purport to exclude have exclusive Where the jurisdiction of the court first jurisdiction by virtue of Article 16. seised is established, any court other than the court first seised shall decline jurisdic- tion in favour of that court.'

...'

12. The provisions concerning recognition and enforcement appear under Title III of 10. Article 18 provides that: the Brussels Convention. Article 27 pro- vides that:

13. In accordance with the first paragraph of Article 28, '[m]oreover, a judgment shall 16. By application of 4 December 2000, not be recognised if it conflicts with the Gasser brought an action against MISAT provisions... [in matters relating to insur- before the Landesgericht (Regional Court) ance and consumer contracts or with those Feldkirch, Austria, for payment of out- referred to in Article 16]...'. standing invoices. Gasser contended that that court had jurisdiction on the ground that it was the court for the place of performance of the contract. Gasser also contended that that court had jurisdiction under an agreement conferring jurisdiction. In support of that contention, it argued that I I — Facts and procedure all the invoices issued to MISAT stated that the court with jurisdiction in the event of a dispute would be the court in whose 14. Erich Gasser GmbH 3 is a company jurisdiction Dornbirn is located, and that whose registered office is in Dornbirn, MISAT had accepted those invoices with- Austria. For several years, it sold children's out disputing them. According to Gasser, clothing to MISAT Sri, 4a company estab- this showed that, in accordance with their lished in Rome (Italy). Early in the year practice and the usage prevailing in trade 2000, contractual relations between the and commerce between Austria and Italy, parties were broken off. the parties had concluded an agreement conferring jurisdiction within the meaning of Article 17 of the Brussels Convention.

18. The Landesgericht Feldkirch decided to 22. In that regard, the Oberlandesgericht stay proceedings, pursuant to Article 21 of Innsbruck noted that, under subparagraphs the Brussels Convention, until such time as (a), (b), and (c) of the first paragraph of the jurisdiction of the Tribunale civile e Article 17 of the Brussels Convention, an penale di Roma, the court first seised, had agreement conferring jurisdiction must be been established. It confirmed its own either in writing or evidenced in writing, or jurisdiction as the court for the place of in a form which accords with the practices performance of the contract, but it did not between the parties, or, in international rule on the existence of an agreement trade or commerce, in a form which conferring jurisdiction. accords with a usage of which the parties were or ought to have been aware and which is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or com- merce concerned. It took the view that the 19. Gasser appealed against that decision first two formal conditions relating to an to the Oberlandesgericht Innsbruck, con- agreement conferring jurisdiction were not tending that the Landesgericht Feldkirch fulfilled. It stated that the question none the should be declared to have jurisdiction and less arose whether the conditions laid down that the proceedings should not be stayed. in subparagraph (c) of the first paragraph of Article 17 were satisfied. It pointed out that, in its judgment in MSG, 5the Court held that the fact that one of the parties repeatedly paid without objection invoices issued by the other party containing a jurisdiction clause may be deemed to con- 20. The Oberlandesgericht Innsbruck stitute agreement to that clause, provided stated, first, that the proceedings before that such conduct is consistent with a the Landesgericht Feldkirch and the Tribu- practice in force in the area of international nale civile e penale di Roma had been trade or commerce in which the parties in brought by the same parties and must be question are operating and the parties are regarded as having the same cause of action or ought to have been aware of that within the meaning of the Court's case-law, practice. with the result that this was indeed a case of lis pendens.

diction to deal with the dispute under 2. May a court other than the court first Article 17 of the Brussels Convention. The seised, within the meaning of the first question would then arise whether that paragraph of Article 21 of the Brussels court may review the jurisdiction of the Convention on Jurisdiction and the Tribunale civile e penale di Roma. Enforcement of Judgments in Civil and Commercial Matters ["the Brussels Convention"], review the jurisdiction of the court first seised if the second court has exclusive jurisdiction pur- suant to an agreement conferring juris- diction under Article 17 of the Brussels 24. Lastly, the Oberlandesgericht Inns- Convention, or must the agreed second bruck noted Gasser's contention that its court proceed in accordance with rights had been adversely affected by the Article 21 of the Brussels Convention excessive length of proceedings in Latin notwithstanding the agreement confer- countries. ring jurisdiction?

3. Can the fact that court proceedings in a III— The questions referred to the Court Contracting State take an unjustifiably of Justice long time (for reasons largely uncon- nected with the conduct of the parties), so that material detriment may be caused to one party, have the con- sequence that the court other than the 25. It was in those circumstances that the court first seised, within the meaning of Oberlandesgericht Innsbruck decided to Article 21, is not allowed to proceed in refer the following questions to the Court accordance with that provision? for a preliminary ruling:

IV — Analysis

28. Article 3 of the Protocol of 3 June 1971 provides that, where a question relating to the interpretation of the Convention is A — The first question raised in a case pending, the court seised may or must request the Court of Justice to give a ruling on that question if it considers that a decision on the matter is necessary to 26. By its first question, the referring court enable it to give judgment. Article 3 of the seeks to ascertain whether a national court Protocol therefore follows the same logic as may ask the Court of Justice to interpret Article 234 EC. In both cases, the reference the Brussels Convention on the basis of the for a preliminary ruling is intended to submissions of a party the merits of which enable the Court of Justice to provide the that national court has not assessed. The national court is thus referring to the fact 6 — OJ 1975 L 204, p. 28, as amended by the conventions on that the second question is based on the accession.

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national court with the interpretation it 30. The Court has consistently inferred needs to give a judgment applying the from the fact that jurisdiction lies in provision whose interpretation is sought. 7 principle with the national court that it is The Court, logically, inferred from this that for that court, which alone has a direct its case-law concerning its jurisdiction to knowledge of the facts of the main pro- give preliminary rulings under Article 234 ceedings and of the arguments of the EC can be transposed to requests for inter- parties, to decide, in the light of consider- pretation of the Brussels Convention. 8 ations of procedural economy and expedi- ency, at what stage in the proceedings it is necessary to submit a question to the Court for a preliminary ruling. 10

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32. In this respect, it has pointed out that, itself to have jurisdiction in the case of a in order to enable it to provide the national question referred to it for a preliminary court with an interpretation of Community ruling on the basis of a premiss the well- law which will be of use to it in giving foundedness of which is a precondition for judgment in the main proceedings, the applying the provision whose interpre- national court must define the legal context tation has been sought, for the-purpose of in which the interpretation requested giving judgment in the main proceedings. should be placed. With that in mind, the Court has taken the view that it might be convenient, depending on the circum- stances and without calling into question the principle that the referring court has exclusive jurisdiction to determine at what 34. Thus, in Enderby, 15 the Court of stage of the proceedings the reference for a Appeal (England & Wales) asked the Court preliminary ruling should be made, for the of Justice whether the principle of equal facts in the case to be established and for pay for male and female workers for equal questions of purely national law to be work or work of equal value, laid down in settled at the time the reference is made to Article 141 EC, required an employer to the Court of Justice, so as to enable the justify objectively a difference in pay latter to take cognisance of all the features between the job of principal speech thera- of fact and of law which may be relevant to pist and that of principal pharmacist. The the interpretation which it is called upon to Court of Appeal had proceeded on the give. 13 Furthermore, it is essential for the premiss that those two different jobs were national court to explain why it considers of equal value. that an answer to its questions is necess- ary. 14

examine the question of the objective 38. Like the Commission, I consider that justification of the difference in pay before that case-law can be transposed to the that of the equivalence of the jobs in issue, present case. First, although it is regrettable which might require more complex inves- that the referring court has not provided a tigation. It was for that reason that the detailed explanation in this regard, I share questions referred were based on the the Commission's view that determining assumption that those jobs were of equal the existence in the particular trade or value. 16 It went on to say that, where the commerce concerned of a usage in inter- Court, as in that case, receives a request for national trade or commerce which is widely interpretation of Community law which is known to, and regularly observed by, not manifestly unrelated to the reality or parties to contracts of the type involved the subject-matter of the main proceedings, may indeed necessitate long and costly it must reply to that request and is not investigations. required to consider the validity of a hypothesis which it is for the referring court to review subsequently if that should prove to be necessary.177

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40. Last, the referring court has explained 42. In the light of the foregoing, I propose why, in the light of the judgment in MSG, that the answer to the first question should cited above, MISAT's acceptance of be that it is for the national court to invoices containing a clause designating determine whether to refer a question to the court in whose jurisdiction Dornbirn is the Court of Justice for a preliminary ruling located as having jurisdiction to rule on any on the basis of a party's submissions or dispute between the parties must be whether it is necessary to verify those regarded as initial evidence of the existence submissions first. It is nevertheless incum- of an agreement conferring jurisdiction bent on the national court to provide the within the meaning of subparagraph (c) of Court of Justice with the factual and legal the first paragraph of Article 17 of the information enabling it to give an answer Brussels Convention. The other conditions which will be of use to it in giving judgment laid down in that provision, namely that in the main proceedings and to explain why the usage in the particular trade or com- it considers an answer to its questions to be merce concerned must be one which is necessary. accepted in international trade or com- merce and of which the parties are or ought to have been aware, are not disputed in a specific and reasoned manner by MISAT. There is therefore nothing to indicate that the premiss relating to the existence of an agreement conferring jurisdiction is mani- festly erroneous. B — The second question

before the courts of different Contracting which began with the judgment in Gubisch States and to avoid conflicts between Maschinenfabrik, 22 in which the Court decisions which might result therefrom. held that an action for the rescission or Those rules are therefore designed to pre- discharge of a contract involves the same clude, so far as possible and from the cause of action as an action to enforce the outset, the possibility of a situation arising same contract. 23 It was in the light of that such as that referred to in Article 27(3) of case-law that the referring court was able the Convention, that is to say the non- to consider that the action brought before recognition of a judgment on account of its the Landesgericht Feldkirch involved the irreconcilability with a judgment given in same cause of action as the action brought proceedings between the same parties in the previously before the Tribunale civile e State in which recognition is sought. 21 penale di Roma.

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case. I consider that that case-law may be extended to circumstances in which the court second seised has exclusive jurisdic- tion under an agreement conferring juris- diction. 50. The three reinsurers appealed against that decision to the Court of Appeal, which referred to the Court of Justice questions seeking to ascertain, in particular, whether Article 21 must be interpreted as meaning that the court second seised may only stay 49. It is appropriate to recall the context in proceedings where it does not decline which the judgment in Overseas Union jurisdiction, or whether that provision Insurance and Others, cited above, was authorises or obliges it to examine the delivered. In that case, the Court was faced jurisdiction of the court first seised, and to with the following situation. In 1980, New what extent. 29 Hampshire Insurance Company, 28 regis- tered in England as an 'overseas company', reinsured with three companies also regis- 29 — In order fully to understand the wording of the questions tered in England a risk which it had raised by the referring court, it must be remembered that Article 21 of the Brussels Convention, in the version covered for the benefit of the French applicable in that case, read as follows: 'Where proceed- company Nouvelles Galeries Réunies. In ings involving the same cause of action and between the same parties are brought in the courts of different July 1986, the three reinsurers ceased Contracting States, the second court shall of its own motion decline jurisdiction in favour of that court. A court payment of claims. By applications lodged which would be required to decline jurisdiction may stay in 1987 and in February 1988, New its proceedings if the jurisdiction of the other court is contested'. The new wording of Article 21, to the effect Hampshire brought actions against the that, in the event of lis pendens, the court second seised must stay proceedings until such time as the jurisdiction of reinsurers for enforced performance of the the court first seisedis established, in no way changes the contract before the Tribunal de Commerce conclusions to be drawn from the judgment in Overseas Union Insurance and Others with respect to the answer to the question referred in this case. This new wording, which derives from the 1989 accession convention, does not change the meaning or the scope of that article but seeks to ensure that the court second seised does not decline

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51. The Court of Justice ruled that, 'with- 54. The Commission takes the view that out prejudice to the case where the court such a derogation is justified in the case of second seised has exclusive jurisdiction Article 16 by the first paragraph of under the [Brussels] Convention and in Article 28 of the Brussels Convention, particular under Article 16 thereof,' according to which decisions given by a Article 21 of the Convention must be court in breach of Article 16 cannot be interpreted as meaning that, where the recognised in any other Contracting State. jurisdiction of the court first seised is It would therefore be absurd to require the contested, the court second seised may, if court with exclusive jurisdiction under it does not decline jurisdiction, only stay Article 16 to stay proceedings, since a proceedings and may not itself examine the decision given by the court first seised, jurisdiction of the court first seised. 30 which would by definition have no juris- diction, could take effect only in the State where it was given. The first paragraph of Article 28 of the Brussels Convention, it submits, is not applicable where the court second seised has jurisdiction under an agreement conferring jurisdiction within 52. It follows from the Court's answer that the meaning of Article 17. a court second seised which has exclusive jurisdiction to hear the case, in particular under Article 16 of the Brussels Conven- tion, is not obliged to stay proceedings until such time as the court first seised has declared that it has no jurisdiction. The court second seised may therefore continue to examine the merits of the case and give judgment in it.

56. In addition, it points out that the 58. First, the most important point to bear jurisdiction conferred by Article 17 is less in mind is that, in Overseas Union Insur- effective than that arising from Article 16 ance and Others, the Court ruled that the because the parties cannot refrain from requirements of Article 21 of the Brussels applying the latter article, whereas they can Convention might be derogated from in always terminate an agreement conferring 'the case where the court second seised has jurisdiction or waive their right to rely on exclusive jurisdiction under the Convention it. Under Article 18 of the Brussels Con- and in particular under Article 16 thereof'. vention, if the defendant enters an appear- In my view, there are two points to be made ance before the court first seised without about the wording of that derogation. The raising an objection as to lack of jurisdic- first is that, by using the adverb 'in tion on the basis of an agreement confer- particular', the Court meant to indicate ring jurisdiction, that court may hear and that that derogation is not confined solely determine the case. to the cases of exclusive jurisdiction covered by Article 16. The second is that the Court likewise did not refer, as it could have done, only to the cases of exclusive jurisdiction covered by the first paragraph of Article 28 of the Brussels Convention, namely the heads of jurisdiction provided for in matters of insurance or consumer contracts or by Article 16. There is there- fore nothing in the judgment in Overseas Union Insurance and Others to suggest that the exclusive jurisdiction referred to in Article 17 is excluded from the derogation from the requirements of Article 21, which was accepted by the Court in that judg- ment. 57. I do not share that view. Like Gasser and the United Kingdom Government, I consider that Article 17 of the Brussels Convention may constitute a derogation from Article 21 thereof. That analysis is based on the following considerations. First, courts designated under an agreement conferring jurisdiction in accordance with Article 17 have jurisdiction which may be 59. Next, it should be pointed out that, described as exclusive. Second, the argu- since the Court was not asked a question on ment that the court second seised is obliged this matter, it gave no explanation of the to comply with the requirements of grounds capable of justifying that deroga- Article 21 even if it has exclusive juris- tion. I take the view that that derogation diction under an agreement conferring can be explained as follows. Since the court jurisdiction is such as to undermine the first seised can only declare that it has no effectiveness of Article 17 and the legal jurisdiction, it is pointless, in such a certainty that attaches to it. Third, the risk situation, to oblige the court second seised of irreconcilable decisions can be signifi- to stay proceedings. In other words, where cantly reduced. the court second seised has exclusive juris-

60. That reasoning can be transposed to Article 17 of the Brussels Convention. As the wording of that article makes clear, the court or courts designated by the parties pursuant to that article 'shall have exclus- ive jurisdiction'. Read in conjunction with 62. Second, such an obligation would be Article 18 of the Brussels Convention, liable to jeopardise the effectiveness of Article 17 means that, where the parties Article 17 and the legal certainty which are bound by an agreement conferring attaches to it. jurisdiction under that article, any other court seised by one of the parties has no jurisdiction, otherwise than with the con- sent of the defendant. It follows that if, as appears to be the situation here, the defendant contests the jurisdiction of the court first seised by the other party in breach of an agreement conferring jurisdic- 63. For the purposes of determining the tion, that court must, on the basis of that effectiveness of Article 17 of the Brussels clause, declare that it has no jurisdiction. Convention, it should be borne in mind The Schlosser report 3 2 states that that that that article is intended to leave room court must even do so of its own motion for the voluntary prorogation of jurisdic- if the defendant does not enter an appear- tion. It is therefore the consensus between ance. 33 the parties which permits derogation from the rules of general and special jurisdiction laid down in Articles 2, 5 and 6 of the 31 — See, in that regard, Gaudemet-Tallon, H., Compétence et Brussels Convention. Consequently, the exécution des jugements en Europe, third edition, LGDJ, 2002, paragraphs 323 and 324. requirement of their consent to this excep- 32 — Report by Professor Schlosser on the Convention on the tional attribution of jurisdiction is inherent Association of the Kingdom of Denmark, Ireland and the in the spirit of that article. Accordingly, in United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial maners and to the Protocol on its interpretation by the Court of Justice (OJ 1979 C 59, p. 71). 34 — In that regard, see Case 23/78 Meeth [1978] ECR 2133, 33 — Paragraph 22. paragraph 5.

65. It follows that Article 17 upholds the autonomy of the consensus formed between the parties by conferring exclusive jurisdiction on the courts so designated by them, by way of derogation from the rules of jurisdiction laid down by the Brussels Convention, but subject to those contained 64. Such consent by the parties is also the in the fourth paragraph of that article. As basis for agreements conferring jurisdiction the Court has held, Article 17 is intended to concluded in accordance with a usage in designate, clearly and precisely, a court in a international trade or commerce. That Contracting State which is to have exclus- reference to a usage in international trade ive jurisdiction in accordance with the or commerce was of course added in the consensus formed between the parties, 1978 Accession Convention to make the which is to be expressed in accordance formal conditions originally laid down in with the strict requirements as to form laid the Brussels Convention more flexible, in down therein. 41 Article 17 thus seeks to other words an agreement concluded in secure legal certainty by enabling the writing or a verbal agreement evidenced parties to determine which court will have subsequently in writing. 38 However, the jurisdiction. Court of Justice has held that, in spite of that new flexibility, real consent remains one of the objectives of Article 17. That requirement of real consent is justified by the concern to protect the weaker party to the contract by preventing jurisdiction 66. In this way, Article 17 is entirely in clauses, incorporated in a contract by one harmony with the objectives of the Brussels party, from going unnoticed. 39 The Court Convention. Indeed, as the Court has has thus held that the contracting parties' consistently held, the Convention seeks to consent to a jurisdiction clause is presumed unify the rules on jurisdiction of the Con- to exist where their conduct is consistent tracting States' courts, so as to avoid as far with a usage which governs the branch of as possible the multiplication of heads of international trade or commerce in which jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established 35 — Case 24/76 [1976] ECR 1831. in the Community by, at the same time, 36 — Case 25/76 [1976] ECR 1851. 37 — Paragraphs 7 and 6 respectively. allowing the claimant easily to identify the 38 — For an overview of the various versions of Article 17 of the Brussels Convention, from the first one in 1968 to that resulting from the San Sebastián Convention of 26 May 1989, see my Opinion in Castelletti, cited above, points 5 40 — See Castelletti, paragraph 21. to 7. 41 — See Case C-269/95 Benincasa [1997] ECR I-3767, para- 39 — See MSG, paragraph 17 and Castelletti, paragraph 19. graph 29.

68. That is a disturbing consequence as far as principles are concerned and runs the risk of encouraging dilatory conduct. A party seeking to delay judgment on the 70. That is why I propose that the Court substance of a case might thus be encour- should adopt a solution which can ensure aged to 'take the initiative' and bring an the effectiveness of Article 17 and the legal action before a court which has no juris- certainty to which it contributes. Indeed, a diction and which is less convenient for the solution of this kind seems to me to be in keeping with the case-law on the interpre- tation of that article, according to which its 42 — See Case 38/81 Effer [1982] ECR 825, paragraph fi, Case interpretation must respect the consensus C-125/92 Mulox IBC [1993] ECR I-4075, paragraph 11 and Bertincasa, paragraph 26. of the parties. Accordingly, in its judgment

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71. Furthermore, that interpretation has the advantage of taking into consideration the requirements of international trade or commerce. I support the argument put forward by the United Kingdom Govern- ment that the sound development of inter- national commercial relations requires that companies be able to trust the agreements between them. That requirement also 72. Third, I consider that the risk of irreconcilable judgments being delivered can be significantly reduced. 43 — Case 150/80 [1981] ECR 1671. 44 — Paragraph 29. Also see Case C-387/98 Coreck [2000] ECR I-9337, paragraph 14. 45 — See the Schlosser Report, cited above, paragraph 179.

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73. In order to counter that risk, the United assessed differently by the two courts Kingdom Government proposes that the seised. 46 Also, if the court first seised Court rule that a court first seised whose declares that it has jurisdiction and gives a jurisdiction is contested in reliance on a decision on the substance of the case which clause conferring jurisdiction must stay is irreconcilable with that given by the proceedings until the court which is desig- court second seised, which has exclusive nated by that clause and is the court second jurisdiction under Article 16, the decision seised has given a decision as to its of the latter court cannot be recognised in jurisdiction. the Contracting State of the court first seised, by virtue of Article 27(3) of the Brussels Convention.

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reduction to be perfectly possible given 79. That case-law has been extended to that, pursuant to the case-law of the Court, usage in international trade and commerce. the courts concerned must assess the valid- The Court has held that the usage to which ity of the contested agreement conferring Article 17 refers cannot be frustrated by jurisdiction in accordance with the same provisions of national legislation which principles and the same conditions, pro- require compliance with formal conditions vided that the court second seised refrains additional to those permitted in the par- from complying with the requirements of ticular trade or commerce concerned. 51 Article 21 only after having made abso- Likewise, as the referring court points out, lutely sure that it has exclusive jurisdiction. the Court of Justice has indicated the objective factors which the national court must take into consideration in order to determine whether a usage in the particular international trade or commerce in which the parties operate exists and whether that usage is or may be assumed to be known by the parties. 52

47 — See Case C-214/89 Powell Duffryn [1992] ECR I-1745, 5 1 — See, in particular, MSG, paragraph 23 and Castelletti, paragraph 14. paragraphs 33 to 39. 48 — See Elefanten Schuh, paragraphs 25 and 26. 52 — See MSG and Castelletti. 49 — See Estasis Salotti and Segouras. 53 — To date, the interpretation of that article has been the 50 — Paragraph 25. subject of around 15 references for a preliminary ruling.

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satisfies the requirements of Article 17. In 83. In the light of the foregoing, I propose addition to the conditions mentioned that the Court's answer to the second above, it must be satisfied that that agree- question should be that Article 21 of the ment does concern 'disputes which have Brussels Convention must be interpreted as arisen or which may arise in connection meaning that a court second seised which with a particular legal relationship' as has exclusive jurisdiction under an agree- required by the first paragraph of ment conferring jurisdiction may, by way Article 17, and that it does not derogate of derogation from that article, give judg- from the rules governing exclusive jurisdic- ment in the case without waiting for a tion laid down in Article 16 and the declaration from the court first seised that provisions of the Brussels Convention it has no jurisdiction where there is no which are applicable in matters of insur- room for any doubt as to the jurisdiction of ance and consumer contracts. Next, the the court second seised. court second seised will have to examine whether the agreement conferring jurisdic- tion does cover the dispute which has been brought before it. If there were any doubt as to the validity of the agreement confer- ring jurisdiction or its scope, the court second seised would have to stay proceed- ings pursuant to Article 21. C— The third, fourth, fifth and sixth questions

contrary to the requirements of Article 6 of 88. However, I support the Commission's the European Convention on Human view with regard to the answer to be given Rights (hereinafter the 'ECHR'). on the substance of this question. It does not really seem conceivable that it should be possible to refrain from applying Article 21 of the Brussels Convention on the ground that the court first seised is established in a Member State in whose courts there are, in general, excessive delays in dealing with cases. That would be tantamount to saying that the rules on lis pendens do not apply where the court first 86. The Commission raises doubts as to the seised is established in one of certain admissibility of the third question and, Member States. therefore, of the questions which follow it and are related to it, on the ground that the referring court has not provided tangible evidence to show that the Tribunale civile e penale di Roma has infringed Article 6 of the ECHR in the present case.

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enforcement of foreign judgments in favour 91. In view of that proposed answer, there of a simplified mechanism for recognition is no need to rule on the fourth, fifth and and enforcement. It is therefore also the sixth questions. Those questions are based basis of the legal certainty which the on the premiss of a positive answer to the Convention seeks to ensure by allowing third question. Thus, by the fourth ques- the parties to foresee with certainty which tion, the referring court seeks to ascertain court will have jurisdiction. whether Italian Law No 89 of 24 March 2001 concerning compensation for damage caused by the unreasonable length of pro- ceedings would none the less justify the application of Article 21 of the Brussels 90. In the light of those considerations, I Convention. By the fifth and sixth ques- propose that the Court's answer should be tions, as I understand them, it is asking the that Article 21 of the Brussels Convention Court to indicate, in the event of a positive must be interpreted as meaning that it answer to the third question, the circum- cannot be derogated from where the dur- stances in which the court second seised ation of proceedings before the courts of might derogate from the requirements of the Contracting State in which the court that article and the manner in which it first seised is established is, in general, might do so. excessively long.

V — Conclusion

92. In the light of the foregoing, I propose that the Court should answer the questions referred to it by the Oberlandesgericht Innsbruck as follows: