1.

The request for a preliminary ruling from the Oberlandesgericht München (Germany) concerns the interpretation of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, ( 2 ) and in particular Articles 22(1), ( 3 ) 27(1) ( 4 ) and 28(1). ( 5 ) The Court is accordingly called upon to rule on the interpretation of the rule on exclusive jurisdiction applicable in proceedings which have as their object rights in rem in immovable property and the rules applicable to lis pendens or related rights contained in that regulation.

2.

At the outset, I would point out that it is, in my opinion, appropriate to reformulate the many questions which are referred to the Court, by examining them not in the order chosen by the referring court, but in an order which more closely follows the logic and scheme of Regulation No 44/2001.

3.

First of all, the Court must determine whether Article 22(1) of that regulation, which reserves exclusive jurisdiction to the courts of the Member State in which the immovable property forming the subject-matter of the disputed rights in rem is located, applies to an action seeking a declaration that a right in rem of pre-emption has not been validly exercised. ( 6 )

4.

In connection with the preceding point, a further question ( 7 ) seeks to determine whether, in a case of lis pendens within the meaning of Article 27(1) of Regulation No 44/2001, the court second seised may take into account, in order to refrain from staying its proceedings, the fact that in its view the court first seised is not the court which has exclusive jurisdiction by virtue of Article 22(1) of that regulation and that, accordingly, the judgment which the court first seised is likely to give will not be recognised in the other Member States, pursuant to Article 35(1) of that regulation. ( 8 )

5.

The referring court also wishes to ascertain whether it is possible to regard as falling within the rule of lis pendens set out in Article 27 of Regulation No 44/2001 two sets of proceedings brought before courts of different Member States, on the one hand, where two people are respectively co-defendants in respect of a third party in one of those proceedings and opposing parties in the other and, on the other hand, where those sets of proceedings relate to claims based on different grounds, but the same preliminary legal issue must be decided at the outset in both cases. ( 9 )

6.

In addition, the Court is invited to clarify whether, in the context of the decision to stay proceedings which the court second seised must take under Article 27(1) of that regulation, the court second seised must not only examine the complaint of one party that the other party acted in abuse of process by bringing proceedings before the court first seised, but also safeguard the second applicant’s entitlement to justice, and, if so, what conclusions should be drawn from this. ( 10 )

7.

Moreover, the Court is called upon to determine whether, before the court second seised can apply Article 28(1) of Regulation No 44/2001, concerning related actions which are pending before the courts of different Member States, it must have decided that Article 27(1) of that regulation, concerning cases of lis pendens, is not applicable to the case in question. ( 11 )

8.

Finally, the referring court asks what criteria it may take into consideration in the exercise of the discretion allowed by Article 28(1) of Regulation No 44/2001, bearing in mind that that provision provides that staying proceedings is optional in the case of related actions. ( 12 )

9.

The dispute in the main proceedings is between I. Weber and M. Weber, two elderly sisters who are co-owners to the extent of six tenths and four tenths respectively of a piece of land in Munich (Germany). Following a notarial instrument of 20 December 1971, a right of pre-emption over that immovable property was entered in the land register in favour of I. Weber, pursuant to Paragraph 1094(1) of the German Civil Code ( 13 ) (Bürgerliches Gesetzbuch, ‘the BGB’).

10.

By notarial contract of 28 October 2009 M. Weber sold her four-tenths co-ownership share to the partnership governed by German law Z. GbR, one of the managers of which is her son, Mr Calmetta, a lawyer established in Milan (Italy). According to a clause included in that contract, M. Weber reserved to herself a right of rescission, valid until 28 March 2010 and subject to certain conditions.

11.

Notified by the notary who had drawn up the contract in Munich, I. Weber exercised her right of pre-emption over that co-ownership share, by letter of 18 December 2009, pursuant to Paragraphs 463 and 464 of the BGB. ( 14 )

12.

On 25 February 2010 by contract concluded before the same notary, I. Weber and M. Weber expressly acknowledged the valid exercise of that right of pre-emption and agreed on the transfer of ownership to I. Weber, at the same price as that agreed in the contract of sale signed by M. Weber and Z. GbR. It seems that they agreed that the notary should take the steps to register the transfer of ownership in the property register only when M. Weber had waived the right to exercise her right of rescission under the contract of 28 October 2009, pursuant to Paragraph 873(1) of the BGB ( 15 ) and Paragraph 19 of the Regulation on the land register (Grundbuchordnung). ( 16 ) On 2 March 2010, I. Weber paid the agreed purchase price, that is to say EUR 4 million. By letter of 15 March 2010, M. Weber declared that contract rescinded.

13.

By an application of 29 March 2010, served on I. Weber on 11 May 2010, Z. GbR brought proceedings against M. and I. Weber before the Tribunale Ordinario di Milano (the Milan civil court) seeking a declaration that the exercise by I. Weber of her right of pre-emption was invalid and that the contract concluded between M. Weber and that company was valid.

14.

On 15 July 2010, I. Weber brought an application before the Landgericht München I seeking to require M. Weber to consent to the registration in the property register of the transfer of ownership relating to the four tenths of the property held by the latter. ( 17 ) M. Weber objected, relying, at the outset, on the existence of lis pendens on account of the dispute pending before that Italian court.

15.

By orders of 1 April 2011 and 23 August 2011, the Landgericht München I stayed the proceedings before it in the light of the proceedings pending before the Tribunale Ordinario di Milano, the first court seised, by reference to Article 27(1) of Regulation No 44/2001 and, in the alternative, Article 28(1) and (3) of that regulation.

16.

I. Weber brought an appeal before the Oberlandesgericht München. By decision of 16 February 2012, lodged on 2 October 2012, the latter court decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling, stating that it considered that the position adopted by the Landgericht München I was well founded:

17.

It is clear from the documents subsequently put before the Court that, by judgment of 23 May 2013, the Tribunale Ordinario di Milano declined jurisdiction in favour of the German courts in connection with the proceedings brought by Z. GbR against I. and M. Weber.

18.

Before the Court, written observations were presented by I. Weber, M. Weber, the German, United Kingdom and Swiss Governments and by the European Commission. At the hearing of 9 October 2013, only the representatives of I. Weber, M. Weber and the Commission appeared.

19.

As a preliminary point, I would point out that, in so far as Regulation No 44/2001 replaces the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, ( 18 ) the interpretation provided by the Court in respect of the provisions of that convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent. ( 19 ) In this case, it seems to me that such equivalence is established for all the provisions forming the subject-matter of the questions referred, since Articles 22(1), 27(1) and 28(1) of that regulation reflect the same scheme as the corresponding provisions of the Brussels Convention ( 20 ) and are, moreover, provisions couched in almost identical terms. ( 21 )

20.

Furthermore, I would note that I consider that it is necessary to look at the questions referred together and to deal with them in an order different from that chosen by the referring court. In particular, I shall start by analysing the third question, which concerns the head of exclusive jurisdiction under Article 22(1) of Regulation No 44/2001, before continuing the analysis with the fourth question, which seeks to clarify the effects of that provision in the light of the lis pendens rule set out in Article 27 of that regulation. That order seems logical to me because, in my opinion, where a referring court has such exclusive jurisdiction under that regulation, it cannot be required to examine whether the substantive criteria for lis pendens, which are referred to in the first two questions, ( 22 ) are fulfilled with respect to the dispute in respect of which it is the court second seised. Indeed, I consider that in such a situation, no court of another Member State can validly have jurisdiction concurrently.

21.

By its third question, the referring court asks, in essence, whether, as it presumes, an action seeking a declaration that a defendant has not validly exercised his right in rem of pre-emption, which exists according to the substantive law of a Member State with respect to land situated in that State, is an action relating to one of the ‘rights in rem in immovable property’ covered by Article 22(1) of Regulation No 44/2001. If so, that action would fall within the head of exclusive jurisdiction which is laid down by that provision for ‘the courts of the Member State in which the property is situated’.

22.

Specifically, it raises the question whether an action seeking a declaration that the exercise of a right of pre-emption relating to land situated in Germany is invalid, such as that which Z. GbR brought before the Italian court, falls within the scope of that article, from which it would follow that the German courts would have exclusive jurisdiction in this case.

23.

I would point out that M. Weber claims that that question is inadmissible on the grounds, first, that the action for compulsory registration in the land register which was brought before the German courts does not have as its subject-matter rights in rem in immovable property within the meaning of Article 22(1) of Regulation No 44/2001 and, secondly, that it has no bearing on any decision to stay its proceedings which the referring court might give under Articles 27 and 28 of that regulation. ( 23 )

24.

Nevertheless, it is clear from the settled case-law that the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 24 )

25.

That is not the case in the present proceedings, in the light of the information provided by the Oberlandesgericht München, from which it is clear that the proceedings brought concurrently before an Italian court relate to the validity of the exercise by I. Weber of her right of pre-emption over immovable property, ( 25 ) while the action pending in Germany requires an examination of that same point as a preliminary issue. Since that court properly identified the grounds on which it based its reference for a preliminary ruling and a response is necessary for a ruling on the outcome of the dispute before it, the request for a preliminary ruling must be regarded as admissible.

26.

It should be noted that, in line with the case-law on Article 16(1)(a) of the Brussels Convention, ( 26 ) the criterion of exclusive jurisdiction which is established by Article 22(1) of Regulation No 44/2001, that is ‘in proceedings which have as their object rights in rem in immovable property’, must be conceived as an autonomous concept specific to EU law. It follows that that expression should be interpreted by reference, first, to the objectives and scheme of that regulation and, secondly, to the general principles which are contained in all the systems of national law. ( 27 ) In that regard, I note that the principle of forum rei sitae is a widely accepted rule of jurisdiction for cross-border disputes concerning rights in rem in immovable property, both in domestic provisions and in those of international origin.

27.

From a teleological perspective, I would recall that the principle rationale for vesting exclusive jurisdiction in the courts of the Member State where the property in question is situated ( 28 ) lies in the need for the proper administration of justice, since those courts are best placed, on account of their geographic proximity, to deal with matters relating to rights in that property, ( 29 ) as the Court has repeatedly held in relation to the Brussels Convention. ( 30 )

28.

From a systemic perspective, it is also clear that the scope of the rule of exclusive jurisdiction laid down in Article 22(1) of Regulation No 44/2001 may not be construed extensively and given an interpretation broader than is required by its objectives. ( 31 ) This follows from the fact that that provision establishes an exception not only with regard to the general rule of jurisdiction set out in Article 2(1) of the regulation, which prohibits the defendant from appearing before the courts near to his place of residence if the immovable property concerned is not located in the same Member State, but also with regard to special rules on jurisdiction contained in that regulation, which deprives the parties of the possibilities provided for therein of choosing the court. ( 32 )

29.

It is in that context that, by applying the case-law on Article 16(1)(a) of the Brussels Convention, the Court has already interpreted in a restrictive way the material scope Article 22(1) of Regulation No 44/2001. The rule of exclusive jurisdiction ‘in proceedings which have as their object rights in rem in immovable property’ which is set out in the latter has therefore been defined so that it ‘does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of the convention [or of the regulation, respectively] and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest’. ( 33 )

30.

Furthermore, it is clear from the case-law ( 34 ) that, for Article 16(1) of the Brussels Convention to apply, it is not sufficient that a right in rem in immovable property be involved in the action or that the action have any link with immovable property whatsoever. The action must be based on a right in rem and not on a right in personam. ( 35 ) The difference between a right in rem and a right in personam is that the former, existing in an item of property, has effect erga omnes, whereas the latter can be claimed only against the debtor. The same applies with regard to Article 22(1) of Regulation No 44/2001.

31.

In this case, I consider that an action seeking a declaration that a right of pre-emption over land, and registered in the land register, has not been validly exercised, such as the one brought before the Italian court first seised by Z. GbR, is covered by the scope of the latter provision. Indeed, such an action is based on the existence of a kind of preferential right over immovable property ( 36 ) and is intended to determine what effects erga omnes the exercise of that right is able to produce for the benefit of its holder as regards the transfer of ownership, and in particular as against a third-party purchaser. The dispute therefore relates to a right which is both in rem, rather than personal, and over immovable property. I consider that the above considerations of proper administration of justice which underlie Article 22(1) support that interpretation.

32.

Accordingly, I propose that the answer to the third question should be that proceedings concerning the validity of the exercise of a right of pre-emption over immovable property, such as those brought before the Italian court seised prior to the bringing of proceedings before the court making the reference in this case, fall within the concept of ‘proceedings which have as their object rights in rem in immovable property’ within the meaning of Article 22(1) of Regulation No 44/2001.

33.

The fourth question concerns, in essence, the relationship between Article 22(1) and Article 27(1) of Regulation No 44/2001, and in particular whether the first of those articles allows derogation from the second. The Court is asked to state whether, where concurrent proceedings are pending in two different Member States, the second court seised must take into consideration the fact that in its view any decision of the court first seised would not be recognised in the other Member States, in accordance with Article 35(1) of that regulation, on the basis of a failure to take account of the exclusive jurisdiction provided for in Article 22(1) in proceedings which have as their object rights in rem in immovable property.

34.

I consider that it will be necessary to give an affirmative answer to that question. This seems to me to be necessary, first of all, in the light of the wording of Article 27 of Regulation No 44/2001, which reproduces that of Article 21 of the Brussels Convention. The wording of the latter provision has undergone significant changes, which should be taken into account. Before its amendment in 1989, ( 37 ) Article 21 was worded in such a way that the court second seised had the option to stay its proceedings, instead of the obligation to decline jurisdiction, only where the jurisdiction of the other court was contested.

35.

The current mechanism is reversed, since the court second seised is, on the contrary, required to stay its proceedings ‘until such time as the jurisdiction of the court first seised is established’. However, by definition, it will never be possible to establish that jurisdiction when the court second seised alone has exclusive jurisdiction by virtue of the subject-matter of the dispute, such as the exclusive jurisdiction resulting from Article 22(1) of that regulation, which must necessarily prevail. ( 38 )

36.

I consider that the case-law of the Court relating to Article 21 of the Brussels Convention does not contradict that analysis. Indeed, Overseas Union Insurance and Others ( 39 ) contains a statement made obiter dictum which may be understood by contrary inference as meaning that in the event that the court second seised has exclusive jurisdiction as provided for by that convention, and in particular by Article 16 thereof (equivalent to Article 22 of Regulation No 44/2001), that court would have the option of taking into account the lack of jurisdiction of the court first seised. More specifically, in such a situation the court second seised examines solely the question of its own jurisdiction, which is exclusive in this case, as was pointed out by Advocate General Van Gerven in that case. ( 40 )

37.

That approach which was adopted with respect to the initial version of Article 21 should, in my opinion, a fortiori prevail with respect to Article 27 of Regulation No 44/2001, which contains even more explicit wording as to the need for the jurisdiction of the court first seised to be formally established before it is possible to draw all the appropriate conclusions from a situation of lis pendens.

38.

I would add that the above case-law seems to me to be compatible with such an analysis. In Gasser, ( 41 ) which for its part is concerned with the amended version of Article 21 of the Brussels Convention, the Court ruled that the procedural rule contained therein ‘is based clearly and solely on the chronological order in which the courts involved are seised’. The Court concluded therefrom that a court second seised whose jurisdiction has been claimed under an agreement conferring jurisdiction must nevertheless stay proceedings until the court first seised has declared that it has no jurisdiction, in particular on grounds of legal certainty. ( 42 )

39.

However, that case was concerned with the specific question of exclusive jurisdiction based on a choice-of-court agreement, which the parties may cancel or the validity of which may be disputed, ( 43 ) and not on a head of jurisdiction linked directly to the subject-matter of the dispute, as is the case in proceedings which have as their object rights in rem in immovable property in accordance with Article 22(1) of Regulation No 44/2001.

40.

Where the court second seised is the only one which has exclusive jurisdiction ( 44 ) on the basis of the latter provision, it would, in my opinion, be inappropriate for it to stay the proceedings pending before it, under Article 27(1) of that regulation, pending the decision of the court first seised, since the latter cannot validly declare that it has jurisdiction and therefore rule on the merits of the concurrent proceedings. A different approach would favour so-called ‘torpedo’ actions which could first be initiated unfairly in a Member State, for the sole purpose of circumventing the nevertheless exclusive jurisdiction of the courts of another Member State, that is to say, the one in which the immovable property involved in the dispute is located.

41.

The interpretation which I am proposing is supported by the system of which Article 27(1) of Regulation No 44/2001 forms part. Indeed, under Article 25 of that regulation, an obligation to decline jurisdiction is imposed on all the courts of the Member States other than those where the immovable property forming the subject-matter of the dispute relating to rights in rem is located. ( 45 ) Moreover, pursuant to Articles 35(1) and 45(1) of that regulation, it is clear that any judgment given by the court first seised which is contrary to the rule of jurisdiction laid down by Article 22(1) will be neither recognised nor enforced in the other Member States. Requiring the court second seised which has exclusive jurisdiction to stay its proceedings in such circumstances would simply lead to an absolute waste of time and would therefore not satisfy the requirement for the proper administration of justice.

42.

However, in order not to render ineffective the mechanism provided for in Article 27(1), I consider that such an assertion of its own exclusive jurisdiction by the court second seised, to the detriment of the priority in principle accorded to the court first seised, should be limited to cases in which a reliable assessment can be made as to the issues concerning recognition and enforcement without risk of conflicting judgments. Like the Government of the United Kingdom and the Government of Switzerland, I consider that it is possible to make such a forecast where the disputes fall within the scope of Article 22(1) of Regulation No 44/2001. In that specific context, it will not undermine the objective of Regulation No 44/2001 and in particular Article 27 thereof, that is to say, preventing concurrent proceedings before the courts of different Member States and the irreconcilable judgments which may result, ( 46 ) since the probability of such judgments is then particularly reduced.

43.

Accordingly, I propose that an affirmative answer should be given to the fourth question, since in a situation such as that in the present case, there are not two courts which both have jurisdiction, and therefore there is no positive conflict of jurisdiction to be resolved by application of the provisions of Regulation No 44/2001 relating to lis pendens.

44.

The four other questions relating to Article 27(1) of Regulation No 44/2001 ( 47 ) will be considered together so as to address, first of all, the requirements which must be satisfied for lis pendens to arise within the meaning of that provision (1), and then the consequences of the possible existence of lis pendens (2).

45.

In my view, it will not be necessary to provide an answer if, as I propose, the Court concludes that lis pendens within the meaning of that article is excluded in the present case based on the precedence of the exclusive jurisdiction of the forum rei sitae provided for in Article 22(1) of the regulation. Accordingly, those questions call for the following observations on my part only in the alternative.

46.

The first two questions relate to the requirements for lis pendens to be established for the purposes of Article 27(1) of Regulation No 44/2001. In particular, the Court must determine what is to be understood by the expressions ‘proceedings … between the same parties’ (a) and ‘proceedings involving the same cause of action’ (b), which are not defined in that provision.

47.

At the outset, I would recall that those two expressions must be given an independent definition, and therefore one which is unrelated to the interpretations prevailing in a particular Member State. ( 48 )

48.

In my opinion, it is appropriate, in the context of interpreting the provisions of Regulation No 44/2001 on lis pendens, to take into account, indirectly, the approach adopted by the Court in Tatry, concerning the parallel concept of related actions, which covers ‘all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive’. ( 49 ) I conclude from this that lis pendens, for its part, relates to situations in which the judgments to be given cannot be separately enforced and their legal consequences are mutually exclusive. That is, in my view, the rationale for the obligation imposed on the court second seised to stay its proceedings until the jurisdiction of the court first seised has been established. ( 50 )

49.

I would add that, on the basis of that interpretation, it will also be necessary to draw the appropriate conclusions from the fact that the scope, both objective and subjective, of the force of res judicata of a judgment delivered in civil proceedings is not harmonised by EU law. Accordingly, application of the provisions relating to lis pendens is not without difficulty, since lis pendens is, in my view, actually an advance form of the force of res judicata of the judgment which the court first seised would have to give. In addition, the implementation of the obligation to stay its proceedings under Article 27(1) of Regulation No 44/2001 cannot require the court second seised to acquaint itself with the specific features of the rules of civil law or civil procedure applicable in the Member State of the court first seised. I consider that that court must be able to give its judgment after a more technical review of the applications initiating the proceedings which are pending in parallel.

50.

By its first question, the referring court asks the Court whether it is possible to regard as proceedings ‘between the same parties’, a concept which is one of the criteria for application of Article 27(1) of Regulation No 44/2001, two sets of concurrent proceedings in which the persons involved in the two sets of proceedings are defendants in the first set of proceedings, whereas they are respectively the applicant and the defendant in the second set of proceedings.

51.

Having already been called upon to define that expression in the context of the interpretation of the Brussels Convention, the Court ruled that ‘the question whether the parties are the same cannot depend on the procedural position of each of them in the two actions, and that the plaintiff in the first action may be the defendant in the second’, ( 51 ) and vice versa. A reversal of the procedural roles of the parties is therefore possible from one set of concurrent proceedings to the other.

52.

It was also held that lis pendens arises where some but not all of the parties concerned are the same, provided that ‘at least one of the plaintiffs and one of the defendants to the proceedings first commenced [is] also … among the plaintiffs and defendants in the second proceedings, or vice versa’. ( 52 )

53.

Moreover, adopting a particularly broad interpretation of that criterion, the Court stated in Drouot Assurances that application of the provisions relating to lis pendens may sometimes be necessary even where the parties to the two proceedings are not strictly identical, provided that there is such a degree of identity and indivisibility between the interests of the persons concerned that they must be considered to be one and the same party, since ‘a judgment delivered against one of them would have the force of res judicata as against the other’. ( 53 )

54.

However, in my opinion, the scope of that judgment should be limited to cases of necessary joinder of litigants or similar situations in which there is no doubt, legally, that the parties’ interests are the same and inseparable. Generally, the court second seised cannot be required to consider whether such criteria are fulfilled, since this could require a hearing of all the parties to the dispute which is pending before the court first seised or the gathering of the relevant evidence.

55.

In the absence of such a limit, the application of that case-law might, in my opinion, lead to a denial of justice, because a dispute pending against a party in one Member State could prevent proceedings against another person in another Member State from being brought and completed, even if the judgment given in the first case is not enforceable against the defendant in the second case in the latter Member State. ( 54 ) In that regard, it should be borne in mind that the rights enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, ( 55 ) and the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union ( 56 ) are individual rights which exist regardless of whether or not the natural or legal person concerned has interests inseparable from or identical to those of another person. Since individuals constitute distinct legal persons even though they have common interests, an individual cannot be legitimately deprived of the opportunity of having his action examined without delay because another individual is the defendant in a dispute brought before a court of another Member State.

56.

As regards in particular the situation under consideration in the present case, it is clear in my view from the wording of Article 27(1) of Regulation No 44/2001 that for the parties to be the same parties, for the purposes of that provision, they must be opposing parties in the two sets of proceedings which are pending concurrently. ( 57 ) Such a requirement also reflects the traditional approach of civil procedure, which is based on procedural relationships of a binary nature in which an opposing applicant and defendant make submissions against each other.

57.

Although, according to the case-law referred to above, in the case of potential lis pendens, the parties’ positions in the concurrent proceedings can be reversed, the fact remains that nothing in the wording of that provision indicates that it should apply in situations where, as in the present case, both the parties are applicants or defendants in the first proceedings, but where one is the applicant and the other the defendant in the second proceedings.

58.

I consider that applying the rule requiring proceedings to be stayed provided for in Article 27(1) in such a situation would be likely to jeopardise the effective judicial protection of the parties, and especially the rights of defence of a party who is the defendant in the first dispute. He will be unable to defend his interests effectively before the court first seised against a party who also has the status of defendant, and not of applicant, in that dispute.

59.

Furthermore, this would in my view lead to a critical outcome with regard to the force of res judicata and the enforcement of the judgment given by the first court, to the benefit of one of the defendants and to the detriment of his co-defendant. In the event of a combined triangular position (A against B and C) and binary situation (B against C), I do not see why the judgments given in parallel cannot be separately enforced and how their legal effects might be mutually exclusive, since judgments in civil and commercial matters are not likely to have a subjective scope erga omnes, that is to say one which goes beyond the legal relationship between the applicant and the defendant.

60.

The interpretation which I propose is compatible with the principal objective of Article 27 of Regulation No 44/2001, which is to prevent the risk of conflicting decisions which therefore cannot be enforced in another Member State, ( 58 ) since there is no such risk in circumstances such as those of the present case. Indeed, a judgment given by a German court against M. Weber would not have the force of res judicata, and therefore no binding force, against Z. GbR in Italy, and vice versa in Germany as regards a judgment given by the Italian court first seised. Furthermore, the interests of M. Weber, as the person against whom the right of pre-emption can be asserted, are not identical to those of that company, which is the purchaser of the immovable property affected by that right.

61.

For all of those reasons, and contrary to what is proposed by the referring court, I agree with all the interested parties, with the exception of M. Weber, ( 59 ) that proceedings such as those which have been brought before, respectively, the Italian and German courts in the present case cannot be regarded as being brought ‘between the same parties’ within the meaning of Article 27(1) of Regulation No 44/2001. Consequently, if the Court decides to give a ruling on the first question, I propose that it should answer it in the negative.

62.

By its second question, the referring court asks whether two sets of proceedings have ‘the same subject-matter’, for the purposes of Article 27(1) of Regulation No 44/2001, where they relate to proceedings having different claims and arguments, but the same preliminary issue has to be answered in order to decide both those concurrent actions, or in one of them a declaration is sought, by a claim in the alternative, as to a legal relationship which features in the other as a preliminary issue.

63.

I would point out that in this case, the issue arises only with regard to the first head of claims submitted to the Italian court first seised in conjunction with the proceedings brought before the German court second seised.

64.

I would add that there would be no need to answer that question, in particular, if, as I propose, the answer to the first question is in the negative, since, given that the criteria laid down in Article 27 are expressly stated to be cumulative, the absence of one is sufficient for the lis pendens rule provided for therein to be regarded as not applicable in the circumstances of this case. In my view, the existence of the same cause of action and subject-matter cannot be assessed independently of the question whether the parties are the same. The cause of action and the subject-matter are concerned with the objective scope both of the proceedings and of the force of res judicata of the judgment to be given. That objective scope cannot go beyond the subjective scope of proceedings, in disputes falling within the scope of Regulation No 44/2001. ( 60 )

65.

It is therefore only for the sake of completeness that I would point out, first of all, that the Court ruled, in Gubisch Maschinenfabrik, ( 61 ) that ‘[e]ven though the German version of Article 21’ of the Brussels Convention, which is equivalent to Article 27 of Regulation No 44/2001, ‘does not expressly distinguish between the terms “subject-matter” and “cause of action”, it must be construed in the same manner as the other language versions, all of which make that distinction’. ( 62 ) Therefore, despite the wording of the second question raised here, I consider that the answer to be given to it must not be limited to the concept of subject-matter, but must also include the concept of cause of action.

66.

I would recall that, according to the case-law, the concept of ‘cause of action’‘comprises the facts and the rule of law relied on as the basis of the action’, whereas the concept of ‘object of the action’‘means the end the action has in view’, ( 63 ) that is to say the desired outcome of the proceedings. Furthermore, in accordance with that purposive approach, the Court has already held that the same subject-matter is not limited to cases in which the claims made in the two sets of concurrent proceedings are worded in the same terms. ( 64 ) It has also held that, in order to determine whether two claims have the same subject-matter, account should be taken only of the claims of the respective applicants in those proceedings, to the exclusion of the defence submissions raised by a defendant. ( 65 )

67.

As regards the specific issues raised in the present case, I note at the outset that the fact that the same preliminary issue is raised in two sets of concurrent proceedings is not, in my view, conclusive as to whether those proceedings have the same cause of action and the same subject-matter. ( 66 ) I consider that the question whether those proceedings have the same cause of action and the same subject-matter must be considered in particular in the light of the potential effects of the judgment to be given by the court first seised. Thus, it is appropriate to ask whether the defendant in the first proceedings would still have something to gain, in the second proceedings, having been successful or unsuccessful in the first proceedings. In other words, it is necessary to take into account the desired legal consequence and the basis on which the judgment given in the first dispute would have force of res judicata before the court second seised.

68.

It is sufficient to note that in principle the classification of an issue as ‘preliminary’ should exclude the legal relationship in question from the scope of the concept of subject-matter of the action for the purposes of Article 27 of Regulation No 44/2001, since the aim of proceedings cannot consist in obtaining solely a response concerning an issue of the type which a court has to decide before being able to either reject or uphold the outcome sought by the applicant. This applies regardless of whether the preliminary issue also features in the other proceedings as a preliminary request or as an application made in the context of an alternative claim.

69.

In that regard, I would point out that in this case the action brought before the Italian court is concerned primarily with the invalidity and the absence of effects of the exercise by I. Weber of her right of pre-emption, because she did not accept all the terms of the contract between Z. GbR and M. Weber, and in particular the latter’s right of rescission. Moreover, Z. GbR has sought, in the alternative, a declaration that I. Weber was bound by the terms of the contract between that company and M. Weber, including that right of rescission. However, the action brought before the German court seeks an order requiring M. Weber to consent to the registration in the land register of I. Weber as owner of four tenths of the co-ownership share which M. Weber possesses.

70.

On a purely formal level, the subject-matter of those two proceedings is not the same and there is no risk of irreconcilable judgments. Nevertheless, there is an overlap between the alternative claim in the action brought in Italy and the reasoning of the action brought in Germany, as regards the question whether the contractual term relating to M. Weber’s right of rescission is enforceable against I. Weber. To that extent, I consider, like the Commission, that the subject-matter of those actions may be sufficiently identical in the light of the criteria developed in the above case-law, which allows reference to be made to the issues which lie at the ‘heart’ of the two sets of concurrent proceedings, ( 67 ) that is to say, in the present case, the effectiveness of the exercise of the right of pre-emption in question.

71.

However, as regards the cause of action, I am of the view that, although the two disputes are based on the same facts, the proceedings are, as the German Government argues, based on two separate legal instruments. The proceedings of Z. GbR before the Italian court were based on the contract which it concluded with M. Weber on 28 October 2009, whereas the action of I. Weber before the German courts is based on the agreement which she concluded with M. Weber as a result of the exercise of her right of pre-emption. I note that even though the order for reference does not specify the statutory provisions on which the applications of Z. GbR before the Italian court are based, ( 68 ) it none the less appears that those applications are worded so as to cover contractual relationships. By contrast, the dispute raised in the proceedings pending in Germany relies on Paragraph 464 of the BGB ( 69 ) and is derived from a right in rem of pre-emption. Taking into account the concept of ‘cause of action’ given by the Court, ( 70 ) which includes both the facts and the legal rule relied on as the basis for the application, it seems to me that it cannot be established that the two sets of proceedings involve the same cause of action, since the legal instrument at issue in the second is unconnected with the contract relied on in the first and the legal rules relied on in both sets of proceedings are not, in my view, the same.

72.

Finally, I wish to emphasise that if the material scope of Article 27 of Regulation No 44/2001 application is determined too extensively, this could cause a difficulty in establishing the boundary between it and Article 28 of that regulation, or even a loss of effectiveness of the latter provision, which is intended to supplement the preceding one in the case of less directly concurrent proceedings. ( 71 ) I shall return to the relationship between those two provisions in the context of the answer to the sixth question raised by the referring court.

73.

Therefore, I propose, in the alternative, that the second question referred should be answered in the negative.

74.

A feature common to the fifth question and the first part of the eighth question is that they relate to the consequences where lis pendens is established, and in particular the elements that the court second seised is required to take into account, in the context of its decision to stay its proceedings under Article 27(1) of Regulation No 44/2001. Those questions relate, respectively, to whether the court second seised is required prior to staying its proceedings under Article 27(1) of Regulation No 44/2001, first, to examine the complaint of one party that the other party acted in abuse of process by first bringing proceedings before a court of another Member State and, if so, what the consequences would be (a) and, secondly, to take into account the right to judicial protection of the applicant who brought proceedings before the court second seised (b).

75.

I note that there will be no need to answer those two questions in the event that, in the answers to the questions raised by the referring court prior to those two questions, the Court concludes, as I suggest, that Article 27 is not applicable in circumstances such as those in the present case.

76.

At the outset, I note that the fifth question seems to me to be hypothetical in nature. It is concerned with a situation where the applicant bringing proceedings before the court second seised argues before it that the earlier bringing of proceedings before another court by the defendant (‘the other party’ in the words of that question) was abusive, and does so before the latter court has ruled on its own jurisdiction.

77.

However, as M. Weber argues, the parallel proceedings initiated in Italy were brought not by her but by Z. GbR, which is not a party to the proceedings which are pending before the referring court, bearing in mind that the latter proceedings were brought by I. Weber against M. Weber. Since according to settled case-law, ( 72 ) any answer which the Court may provide to that question is clearly irrelevant for the purpose of resolving the dispute in the main proceedings, ( 73 ) and would in that regard provide no assistance to the referring court in ruling on a stay of its proceedings under Article 27 of Regulation No 44/2001, I consider that that question is therefore inadmissible.

78.

However, in the event that the Court should consider that it is necessary to rule on that question, I shall make some observations in the alternative.

79.

In support of an answer in the affirmative, ( 74 ) it can be observed that a priority of jurisdiction based solely on a chronological criterion, such as that resulting from Article 27 of Regulation No 44/2001, favours the party which has been quicker to bring proceedings before a court of a Member State. However, it is well known that there is a risk of torpedo actions, whereby parties acting in bad faith exercise their right to bring proceedings as quickly as possible for the sole purpose of circumventing the normal rules of jurisdiction, in particular the rule concerning the courts of the defendant’s domicile, or in order purely to play for time. ( 75 ) I. Weber submits that this applies in the present case. ( 76 )

80.

However, I consider, like the Commission, that any abuse of process by the applicant who first brought proceedings before the court of another Member State is not an element which the court second seised can, or even must, take into account where there is a situation of lis pendens within the meaning of Article 27 of Regulation No 44/2001.

81.

The Court has already held, with regard in particular to the claim that the first applicant allegedly used delaying tactics, that it would be manifestly contrary both to the letter and spirit and to the aim of the Brussels Convention, if Article 21 thereof (equivalent to Article 27 of Regulation No 44/2001) were interpreted as meaning that the application of that article should be set aside where the court first seised belongs to a Contracting State (or a Member State) in whose courts there are, in general, excessive delays in dealing with cases. ( 77 )

82.

That strict interpretation could, in my view, be generalised so as to include a complaint such as that alleging an abuse of process by bringing proceedings first, in light of the wording of Article 27, ( 78 ) which contains no requirements other than reviewing that the cause of action, the subject-matter and the parties are the same, and having regard to the principle of mutual trust in the equivalence of the legal systems of the Member States, which, inter alia, forms the basis of that provision. ( 79 ) That review has the advantage of being objective in nature and of not being subject to a case-by-case assessment.

83.

I therefore consider, in the alternative, that a possible answer to the fifth question would be that, in the context of the application of Article 27(1) of Regulation No 44/2001, the court second seised cannot be required to take into consideration the applicant’s complaint that the defendant acted in abuse of process by first bring proceedings before a court of another Member State.

84.

The first part of the eighth question is concerned, in essence, with whether Article 27 of Regulation No 44/2001 must be interpreted as meaning that the court second seised should take into account, when it is called upon to apply that article, not only the aim of avoiding irreconcilable or contradictory judgments, ( 80 ) but also the ‘right to judicial protection’ or ‘entitlement to justice’ ( 81 ) of the applicant who brought the second set of proceedings before it.

85.

I consider that it is appropriate to limit the response to the interpretation of Article 27(1), even though this is not specified in that question. The present case is concerned with the situation in which the court second seised stays its proceedings until such time as the jurisdiction of the court first seised is established, ( 82 ) while Article 27(2) is concerned with the situation where jurisdiction must be declined where it has already been established.

86.

I would point out that the referring court suggests that protection of the right of access to justice cannot allow derogation from the rule applicable in cases of lis pendens. It argues that it would be contrary to the principle, which forms the basis of Regulation No 44/2001, ( 83 ) that the protection of individuals is guaranteed in an equivalent way in all the Member States, ( 84 ) save in exceptional circumstances, ( 85 ) which do not exist in the present case.

87.

For my part, I consider that to allow a court of a Member State to take into account in concreto the right of an applicant to have access to justice would, in itself, be consistent with the right to effective judicial protection ( 86 ) guaranteed by Articles 6 and 13 of the ECHR and the first and second paragraphs of Article 47 of the Charter. ( 87 ) I would point out that the Court has already held that the fundamental rights ‘to an effective remedy’ and ‘to a fair trial’, within the meaning of that article of the Charter, must be protected, including in the context of the application of Regulation No 44/2001. ( 88 )

88.

Nevertheless, I consider that an interpretation of Article 27(1) of Regulation No 44/2001, though given in the light of the Charter, cannot amend the scope of that article. It is a purely technical provision, ( 89 ) the application of which should, in my opinion, raise no issue as regards Article 47 of the Charter, since the parties to the dispute brought before the court second seised benefit by definition, as regards the judicial systems of the Member States, from the right of access to justice and from the guarantee of a fair hearing before the court first seised.

89.

As the Commission points out, where the exhaustive requirements laid down in Article 27 are fulfilled, the court second seised has an obligation to stay its proceedings, including of its own motion, and must do so without the possibility of taking into consideration other factors, such as the effectiveness of an applicant’s access to justice. It has no discretion in that regard, by contrast with the power conferred upon it by Article 28(1) of that regulation.

90.

Accordingly, I propose, in the alternative, that the answer to the first part of the eighth question should be in the negative.

91.

The three questions referred relating to Article 28(1) of Regulation No 44/2001 ( 90 ) will be considered together to examine, first of all, whether that provision is applicable only if the conditions for the application of Article 27(1) of that regulation are not fulfilled (1), and, then, which elements may be taken into consideration by the court second seised when it exercises the power to assess the appropriateness of staying proceedings which is conferred on it in the case of related actions by Article 28(2).

92.

In essence, the sixth question seeks to determine whether, before it is able to apply Article 28(1) of Regulation No 44/2001 — relating to the staying of proceedings in the case of related actions –, the court second seised must ensure that Article 27(1) of that regulation — relating to the staying of proceedings in the case of lis pendens — does not apply to the dispute which is pending before it, or whether it may opt directly to apply Article 28 without examining the possibility that Article 27 may apply. ( 91 )

93.

In my view, an answer to the sixth question will be necessary only in the event that, contrary to what I propose, the Court answers the first four questions referred to the effect that the provisions of Article 27 of Regulation No 44/2001 are intended to apply in the present case, on the basis that the subject-matter, cause of action and parties are the same and notwithstanding the possible exclusive jurisdiction of the court second seised, and that those provisions are therefore capable of applying at the same time as those of Article 28 of that regulation.

94.

I consider that it is appropriate to establish a logical, or even hierarchical, relationship between those provisions, so that the application of Article 27 is recognised as taking precedence over that of Article 28, in the light of the differences between them. ( 92 )

95.

First, those articles seek to attain objectives which are somewhat different. It is true that both contain rules which are intended to ensure, in so far as is possible, that irreconcilable judgments will not be given, in relation to the same dispute, in different States. ( 93 ) Nevertheless, it is clear from the case-law of the Court that irreconcilability is more flexibly understood in relation to Article 28 of Regulation No 44/2001 ( 94 ) than in relation to Article 27 of that regulation, since Article 28 is intended simply to encourage improved coordination in judicial activity in the various Member States. ( 95 )

96.

Secondly, the detailed rules of application of those provisions differ. While the application of Article 27 requires, in particular, the concurrent existence of the identical elements which it sets out, the application of Article 28 is less demanding. Thus, in the absence of a review of the requirements for the existence of lis pendens within the meaning of Article 27, two sets of proceedings which are none the less sufficiently connected may fall within the provisions concerning related actions, if the criteria in Article 28(3) are also fulfilled. ( 96 )

97.

Thirdly, the effects produced by Article 27(1) and Article 28(1) of Regulation No 44/2001 are very different, although both are concerned with the staying of proceedings. ( 97 ) The court second seised has a discretion in the case of related actions, ( 98 ) a situation in which it is free not to raise this issue of its own motion and not to stay its proceedings, which does not exist in the case of lis pendens, a situation in which the stay of proceedings must necessarily be implemented, even if no party has relied on that plea.

98.

Furthermore, I would point out that the Court stated, in Tatry, that the question referred to it concerning the scope of Article 22 of the Brussels Convention (equivalent to Article 28 of Regulation No 44/2001) ‘[arose] … only if the conditions for the application of Article 21 of the Convention [equivalent to Article 27 of that regulation] are not satisfied’. ( 99 ) It follows, in my view, that there is a relationship of subordination between those provisions, Article 28 applying only where Article 27 is not applicable. ( 100 )

99.

Accordingly, I propose that the answer to the sixth question should be that the application of Article 28(1) of Regulation No 44/2001 actually presupposes that the court second seised has previously reviewed the criteria for the application of Article 27(1) of that regulation and reached the conclusion that they are not fulfilled in the proceedings pending before it.

100.

However, given the wording of that question, ( 101 ) I would point out that in my opinion it is not necessary for the court second seised to rule formally, by an express judgment, on the non-application of Article 27 of Regulation No 44/2001 in the case concerned. It is sufficient that that court systematically carries out a prior review as to whether Article 27 is applicable when it intends to stay its proceedings under Article 28 of that regulation.

101.

In essence, the seventh question and the second part of the eighth question ask the Court to rule on the criteria that a court second seised of a dispute is able to take into account in exercising the power to stay proceedings allowed by Article 28(1) of Regulation No 44/2001, where another court is already seised of a related dispute. While one of those questions sets out a series of particular factors (a), the other is concerned with the right to judicial protection of the applicant bringing the second set of proceedings (b).

102.

In its seventh question, the referring court asks whether four factors which it lists could, and not should, be relevant to the second court seised in assessing whether it is appropriate to stay its proceedings or to give a ruling in the case of related actions, pursuant to Article 28(1) of Regulation No 44/2001. ( 102 )

103.

The wording of Article 28(1) does not contain an answer. The Commission asserts that the legislature’s intention was not to draw up such a list. It seems to me that discretion is, as a result, left to that court, subject nevertheless to the requirement that it respects in any event the purpose of Article 28 of that regulation, which is, in the interests of the proper administration of justice within the Union, to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom. ( 103 )

104.

In my opinion, it should be possible for the court second seised to take into account all the specific circumstances enabling it to determine whether it would be appropriate to stay its proceedings in each individual case brought before it. ( 104 ) There can be no question here of stating that a particular assessment criterion is valid in the absolute, without any tangible context, since a factor which is likely to be relevant in one case will not be necessarily be relevant in another case.

105.

I would add that the referring court does not specify whether it envisages that each of the criteria in relation to which it seeks a ruling from the Court should be considered in isolation, inasmuch as it would be sufficient in itself. However, I consider that none of them can be decisive in itself. Rather, the court second seised must weigh up all the elements for or against staying the proceedings in the case before it.

106.

Whatever position the Court should take in relation to the four criteria set out in the seventh question, the list which is drawn up therein by the referring court cannot be regarded as exhaustive. A variety of other assessment factors may warrant consideration under Article 28(1) of Regulation No 44/2001. For example, it would be possible to take into account information such as that referred to in the German legal writings cited in that respect by I. Weber ( 105 ) or the elements identified, non-exhaustively, by Advocate General Lenz. ( 106 )

107.

The first of the criteria listed in the order for reference concerns the fact that the court first seised is located in a Member State in which proceedings, statistically speaking, last significantly longer than in the Member State in which the court second seised is located. In my view, such a general assessment of the judicial system of another Member State cannot allow derogation from Article 28(1) of Regulation No 44/2001, ( 107 ) having regard to the principle of the equivalence of the systems of the Member States upon which that article is based.

108.

However, in the event that the court second seised finds in concreto that the length of the proceedings brought first in another Member State is manifestly excessive, that court could lawfully conclude that it is not appropriate, in that particular case, to suspend its proceedings on the basis that the actions are related. In that regard, it should be noted, by analogy, that the Court has already held, in relation to Regulation No 2201/2003, that the court second seised may proceed with the consideration of the action brought before it, after a reasonable period of time awaiting answers to questions raised by it has elapsed. ( 108 )

109.

The second criterion contemplated is concerned with cases where the court second seised considers that it is appropriate to apply to the dispute the law of the Member State in which that court is located. However, in my view, the court second seised cannot be allowed to give a ruling determining either the law applicable to the substance of the dispute pending before the court first seised, or whether the latter court is able to apply the provisions of substantive law in question. ( 109 )

110.

The third criterion referred to, clearly inspired by the advanced age of both parties to the main proceedings, relates to the age of one of the parties. It seems obvious to me that that element relating to an individual cannot be taken into account, since the rights and obligations falling within the scope of Regulation No 44/2001 are, almost without exception, of a non-personal nature. ( 110 )

111.

The fourth and final criterion referred to in the seventh question relates to the prospects of success of the action before the court first seised. I consider that the court second seised cannot, in this way, be allowed to rule in advance on the outcome of the proceedings before another court. Given that the court second seised will neither have heard all the claims of the parties in the first proceedings, nor have been given access to the evidence on which they rely, such an approach would be contrary to the principle of proper administration of justice and the fundamental right to a fair hearing.

112.

The second part of the eighth question asks the Court to rule on whether the court second seised may or must take into account the protection of the right of access to justice of the applicant who has brought proceedings before it, in the context of the application of Article 28 of Regulation No 44/2001, and accordingly where the proceedings pending before that court are related to proceedings pending before a court of another Member State.

113.

As with regard to the first part of that question, I consider that, although the referring court did not specify the subject-matter of the claim, the answer should be limited to the interpretation of Article 28(1), taking into account the evidence in this case. Therefore, the only situation examined here is that in which the court second seised intends to stay its proceedings, and not to decline jurisdiction. ( 111 )

114.

In my view, protection of the fundamental right referred to may play a significant role with respect to the application of Article 28(1) of that regulation. Contrary to what applies in the case of Article 27(1) of that regulation, the court second seised has in that context discretion which enables it to ensure that the right of access to justice of the applicant who has brought proceedings before it will not be seriously infringed, pursuant to Article 47 of the Charter, ( 112 ) in the event that it decides to stay its proceedings. Consequently, it is appropriate, in my view, to answer that second part of the eighth question in the affirmative.

115.

In the light of the foregoing considerations, I propose that the Court should answer as follows the questions referred by the Oberlandesgericht München: