61983J0129

CONVENTION ON JURISDICTION AND ENFORCEMENT OF JUDGMENTS - LIS PENDENS - PROCEEDINGS BROUGHT IN THE COURTS OF DIFFERENT CONTRACTING STATES - COURT ' ' FIRST SEISED ' ' - CONCEPT

( CONVENTION OF 27 SEPTEMBER 1968 , ART . 21 )

ARTICLE 21 OF THE CONVENTION OF 28 SEPTEMBER 1968 MUST BE INTERPRETED AS MEANING THAT THE COURT ' ' FIRST SEISED ' ' IS THE ONE BEFORE WHICH THE REQUIREMENTS FOR PROCEEDINGS TO BECOME DEFINITIVELY PENDING ARE FIRST FULFILLED , SUCH REQUIREMENTS TO BE DETERMINED IN ACCORDANCE WITH THE NATIONAL LAW OF EACH OF THE COURTS CONCERNED .

IN CASE 129/83

REFERENCE TO THE COURT UNDER THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE OBERLANDESGERICHT MUNCHEN ( HIGHER REGIONAL COURT , MUNICH ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SIEGFRIED ZELGER , MUNICH ,

AND

SEBASTIANO SALINITRI , MASCALI ( ITALY ),

ON THE INTERPRETATION OF ARTICLE 21 OF THE CONVENTION CONCERNING THE BRINGING OF PROCEEDINGS BEFORE A COURT ,

1 BY AN ORDER OF 22 JUNE 1983 , RECEIVED AT THE COURT ON 8 JULY 1983 , THE OBERLANDESGERICHT MUNCHEN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' ' THE CONVENTION ' ' ) A QUESTION ON THE INTERPRETATION OF ARTICLE 21 OF THAT CONVENTION .

2 THE TWO PARTIES IN THE MAIN ACTION ARE MERCHANTS , ONE OF WHOM HAS HIS PLACE OF BUSINESS IN MUNICH IN THE FEDERAL REPUBLIC OF GERMANY AND THE OTHER IN MASCALI IN SICILY . THE PLAINTIFF IN THE MAIN ACTION BROUGHT PROCEEDINGS AGAINST THE DEFENDANT FOR REPAYMENT OF AN AMOUNT OUTSTANDING ON A LOAN DATING BACK TO 1975 AND 1976 . THE APPLICATION WHICH IS THE SUBJECT OF THE DISPUTE WAS LODGED AT THE REGISTRY OF THE LANDGERICHT MUNCHEN I ON 5 AUGUST 1976 AND SERVED ON THE DEFENDANT IN THE MAIN ACTION ON 13 JANUARY 1977 . IN ADDITION , THE PLAINTIFF IN THE MAIN ACTION BROUGHT FURTHER PROCEEDINGS WITH THE SAME PURPOSE AND INVOLVING THE SAME CAUSE OF ACTION BEFORE THE TRIBUNALE CIVILE IN CATANIA , ITALY , BY AN APPLICATION WHICH WAS LODGED WITH THAT COURT ON 22 OR 23 SEPTEMBER 1976 AND SERVED ON THE DEFENDANT ON 23 SEPTEMBER 1976 .

3 THE LANDGERICHT DISMISSED THE PROCEEDINGS ON THE GROUND THAT IT LACKED INTERNATIONAL JURISDICTION . BEFORE THE LANDGERICHT THE PROCEEDINGS WERE DEFINITIVELY INSTITUTED ONLY ON 13 JANUARY 1977 , BY SERVICE OF THE DOCUMENT INITIATING THEM ( PARAGRAPHS 261 ( 1 ) AND 253 ( 1 ) OF THE ZIVILPROZESSORDNUNG ( CODE OF CIVIL PROCEDURE )) WHEREAS THEY HAD BEEN DEFINITIVELY INSTITUTED BEFORE THE COURT IN CATANIA BY SERVICE OF AN EQUIVALENT DOCUMENT ON 23 SEPTEMBER 1976 . IN THE OPINION OF THE LANDGERICHT MUNCHEN THE COURT IN CATANIA HAD JURISDICTION BY VIRTUE OF ARTICLE 21 OF THE CONVENTION .

4 THE PLAINTIFF APPEALED TO THE OBERLANDESGERICHT CONTENDING THAT THE DECISIVE TIME WAS NOT THE MOMENT AT WHICH THE DOCUMENT INITIATING THE PROCEEDINGS WAS SERVED BUT THE MOMENT AT WHICH THE COURT WAS SEISED OF THE PROCEEDINGS .

5 THE OBERLANDESGERICHT MUNCHEN CONSIDERED THAT THE DISPUTE RAISED QUESTIONS CONCERNING THE INTERPRETATION OF THE AFORESAID CONVENTION . IT THEREFORE STAYED THE PROCEEDINGS AND BY ORDER OF 22 JUNE 1983 REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' ' FOR THE PURPOSE OF RESOLVING THE QUESTION WHICH COURT OF A CONTRACTING STATE WAS FIRST SEISED OF PROCEEDINGS ( ARTICLE 21 OF THE CONVENTION ) IS IT THE MOMENT AT WHICH THE DOCUMENT INITIATING THEM WAS LODGED WITH THE COURT ( ' ' ANHANGIGKEIT ' ' ) THAT IS DECISIVE OR THE MOMENT AT WHICH - BY SERVICE OF THAT DOCUMENT ON THE DEFENDANT - THE PROCEEDINGS HAVE BECOME FULLY INSTITUTED ( ' ' RECHTSHANGIGKEIT ' ' ) ?

' '

6 ARTICLE 21 OF THE CONVENTION PROVIDES :

' ' 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 DECLINE JURISDICTION IN FAVOUR OF THAT COURT .

A COURT WHICH WOULD BE REQUIRED TO DECLINE JURISDICTION MAY STAY ITS PROCEEDINGS IF THE JURISDICTION OF THE OTHER COURT IS CONTESTED . ' '

7 THE PLAINTIFF IN THE MAIN ACTION CONSIDERS THAT ARTICLE 21 OF THE CONVENTION ADOPTS AS THE MOMENT AT WHICH THE PROCEEDINGS ARE BROUGHT THE DATE ON WHICH THE APPLICATION IS LODGED AT THE COURT . THE GERMAN TEXT OF THE CONVENTION USES THE WORD ' ' ANHANGIG ' ' AS BEING EQUIVALENT TO THE WORD ' ' FORMEES ' ' ( ' ' BROUGHT ' ' ) IN THE FRENCH VERSION . AN ACTION IS ' ' ANHANGIG ' ' IN GERMAN LAW AS SOON AS THE DOCUMENT INITIATING THE PROCEEDINGS IS LODGED AT THE REGISTRY OF THE COURT . ON THE OTHER HAND , THE WORD ' ' FORMEES ' ' IN THE FRENCH TEXT OF ARTICLE 22 OF THE CONVENTION HAS BEEN TRANSLATED AS ' ' ERHOBEN ' ' IN THE GERMAN TEXT . THE PLAINTIFF IN THE MAIN ACTION CONCLUDES THAT THE CONVENTION INTENDED TO DISTINGUISH BETWEEN THE CONCEPT OF THE BRINGING OF PROCEEDINGS WITHIN THE MEANING OF ARTICLE 21 , IN WHICH CASE THE MERE LODGING OF THE DOCUMENT INITIATING THE PROCEEDINGS IS SUFFICIENT , AND THE CONCEPT OF BRINGING AN ACTION WITHIN THE MEANING OF ARTICLE 22 , FOR WHICH THE ACTION MUST BE DEFINITIVELY PENDING ACCORDING TO THE NATIONAL LAW OF THE MEMBER STATE CONCERNED .

8 IN THE VIEW OF THE PLAINTIFF IN THE MAIN ACTION , SERVICE OF THE PROCEEDINGS IS , IN GERMAN LAW , A MATTER FOR THE COURT AND NOT FOR THE PARTIES . THE JURISDICTION OF THE COURT SEISED THUS CANNOT DEPEND ON DELAYS IN SERVICE EFFECTED BY THE COURT ITSELF .

9 THE DEFENDANT IN THE MAIN ACTION CONSIDERS THAT THE DIFFERENCE BETWEEN THE GERMAN WORDS USED IN ARTICLES 21 AND 22 OF THE CONVENTION AS BEING EQUIVALENT TO ' ' FORMEES ' ' IN THE FRENCH VERSION CANNOT HAVE ANY EFFECT ON THE INTERPRETATION OF THE CONVENTION . HE CONTENDS THAT THE CONCEPT OF BRINGING PROCEEDINGS WITHIN THE MEANING OF ARTICLE 21 OF THE CONVENTION MUST BE INTERPRETED AS MEANING THE DEFINITIVE INITIATION OF THE ACTION AND THAT THAT CONCEPT MUST BE DETERMINED BY REFERENCE TO THE LEX FORI OF THE COURT SEISED .

10 IT SHOULD BE POINTED OUT THAT THE RULES OF PROCEDURE OF THE VARIOUS CONTRACTING STATES ARE NOT IDENTICAL AS REGARDS DETERMINING THE DATE AT WHICH THE COURTS ARE SEISED .

11 IT APPEARS FROM INFORMATION ON COMPARATIVE LAW PLACED BEFORE THE COURT THAT IN FRANCE , ITALY , LUXEMBOURG AND THE NETHERLANDS THE ACTION IS CONSIDERED TO BE PENDING BEFORE THE COURT FROM THE MOMENT AT WHICH THE DOCUMENT INITIATING THE PROCEEDINGS IS SERVED UPON THE DEFENDANT . IN BELGIUM THE COURT IS SEISED WHEN THE ACTION IS REGISTERED ON ITS GENERAL ROLL , SUCH REGISTRATION IMPLYING IN PRINCIPLE PRIOR SERVICE OF THE WRIT OF SUMMONS ON THE DEFENDANT .

12 IN THE FEDERAL REPUBLIC OF GERMANY THE ACTION IS BROUGHT , ACCORDING TO PARAGRAPH 253 ( 1 ) OF THE ZIVILPROZESSORDNUNG , WHEN THE DOCUMENT INITIATING THE PROCEEDINGS HAS BEEN SERVED ON THE DEFENDANT . SERVICE IS EFFECTED OF ITS OWN MOTION BY THE COURT TO WHICH THE DOCUMENT HAS BEEN SUBMITTED . THE PROCEDURAL STAGE BETWEEN THE LODGING OF THE DOCUMENT AT THE REGISTRY OF THE COURT AND SERVICE IS CALLED ' ' ANHANGIGKEIT ' ' . THE LODGING OF THE DOCUMENT INITIATING THE PROCEEDINGS PLAYS A ROLE AS REGARDS LIMITATION PERIODS AND COMPLIANCE WITH PROCEDURAL TIME-LIMITS BUT IN NO WAY DETERMINES THE MOMENT AT WHICH THE ACTION BECOMES PENDING . IT IS CLEAR FROM THE AFOREMENTIONED PARAGRAPH 253 , READ TOGETHER WITH PARAGRAPH 261 ( 1 ) OF THE ZIVILPROZESSORDNUNG , THAT AN ACTION BECOMES PENDING ONCE THE DOCUMENT INITIATING THE PROCEEDINGS HAS BEEN SERVED ON THE DEFENDANT .

13 IT FOLLOWS FROM THE COMPARISON OF THE LEGISLATION MENTIONED ABOVE THAT A COMMON CONCEPT OF LIS PENDENS CANNOT BE ARRIVED AT BY A RAPPROCHEMENT OF THE VARIOUS RELEVANT NATIONAL PROVISIONS . A FORTIORI , THEREFORE , IT IS NOT POSSIBLE TO EXTEND TO ALL THE CONTRACTING PARTIES , AS IS PROPOSED BY THE PLAINTIFF IN THE MAIN ACTION , A CONCEPT WHICH IS PECULIAR TO GERMAN LAW AND WHICH , BECAUSE OF ITS CHARACTERISTICS , CANNOT BE TRANSPOSED TO THE OTHER LEGAL SYSTEMS CONCERNED .

14 IT MAY PROPERLY BE INFERRED FROM ARTICLE 21 , READ AS A WHOLE , THAT A COURT ' S OBLIGATION TO DECLINE JURISDICTION IN FAVOUR OF ANOTHER COURT ONLY COMES INTO EXISTENCE IF IT IS ESTABLISHED THAT PROCEEDINGS HAVE BEEN DEFINITIVELY BROUGHT BEFORE A COURT IN ANOTHER STATE INVOLVING THE SAME CAUSE OF ACTION AND BETWEEN THE SAME PARTIES . BEYOND THAT , ARTICLE 21 GIVES NO INDICATION OF THE NATURE OF THE PROCEDURAL FORMALITIES WHICH MUST BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF CONSIDERING WHETHER OR NOT TO RECOGNIZE THE EXISTENCE OF SUCH AN EFFECT . IN PARTICULAR , IT GIVES NO INDICATION AS TO THE ANSWER TO THE QUESTION WHETHER A LIS PENDENS COMES INTO BEING UPON THE RECEIPT BY A COURT OF AN APPLICATION OR UPON SERVICE OR NOTIFICAITON OF THAT APPLICATION ON OR TO THE PARTY CONCERNED .

15 SINCE THE OBJECT OF THE CONVENTION IS NOT TO UNIFY THOSE FORMALITIES , WHICH ARE CLOSELY LINKED TO THE ORGANIZATION OF JUDICIAL PROCEDURE IN THE VARIOUS STATES , THE QUESTION AS TO THE MOMENT AT WHICH THE CONDITIONS FOR DEFINITIVE SEISIN FOR THE PURPOSES OF ARTICLE 21 ARE MET MUST BE APPRAISED AND RESOLVED , IN THE CASE OF EACH COURT , ACCORDING TO THE RULES OF ITS OWN NATIONAL LAW . THAT METHOD ALLOWS EACH COURT TO ESTABLISH WITH A SUFFICIENT DEGREE OF CERTAINTY , BY REFERENCE TO ITS OWN NATIONAL LAW , AS REGARDS ITSELF , AND BY REFERENCE TO THE NATIONAL LAW OF ANY OTHER COURT WHICH HAS BEEN SEISED , AS REGARDS THAT COURT , THE ORDER OR PRIORITY IN TIME OF SEVERAL ACTIONS BROUGHT WITHIN THE CONDITIONS LAID DOWN BY THE CONVENTION .

16 THE ANSWER TO THE QUESTION RAISED BY THE OBERLANDESGERICHT MUNCHEN IS THEREFORE THAT ARTICLE 21 OF THE CONVENTION MUST BE INTERPRETED AS MEANING THAT THE COURT ' ' FIRST SEISED ' ' IS THE ONE BEFORE WHICH THE REQUIREMENTS FOR PROCEEDINGS TO BECOME DEFINITIVELY PENDING ARE FIRST FULFILLED , SUCH REQUIREMENTS TO BE DETERMINED IN ACCORDANCE WITH THE NATIONAL LAW OF EACH OF THE COURTS CONCERNED .

COSTS

17 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE OBERLANDESGERICHT MUNCHEN , BY ORDER OF 22 JUNE 1983 , HEREBY RULES :

ARTICLE 21 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS MUST BE INTERPRETED AS MEANING THAT THE COURT ' ' FIRST SEISED ' ' IS THE ONE BEFORE WHICH THE REQUIREMENTS FOR PROCEEDINGS TO BECOME DEFINITIVELY PENDING ARE FIRST FULFILLED , SUCH REQUIREMENTS TO BE DETERMINED IN ACCORDANCE WITH THE NATIONAL LAW OF EACH OF THE COURTS CONCERNED .