Opinion of Mr Advocate General Mancini Delivered on 11 April 1984 1

OPINION OF MR MANCINI — CASE 129/83

OPINION OF MR ADVOCATE GENERAL MANCINI DELIVERED ON 11 APRIL 1984 1

Mr President, against Mr Salinitri for the repayment Members of the Court, of the amount outstanding on a loan contracted in 1975 and 1976, and, as a justification for the international jur isdiction of the German court, he 1. The present reference for a pre claimed that the contracting parties had liminary ruling requires the Court to verbally agreed that Munich should interpret Article 21 of the Brussels be the place of performance of the Convention on Jurisdiction and En obligation to repay the loan. For his part, forcement of Judgments in Civil and the defendant denies both the obligation Commercial Matters (27 September and the existence of such an agreement. 1968). The Court must lay down the The Landgericht rejected the plaintiff's criteria according to which the court first argument and declined jurisdiction. It seised is to be identified when, in the stated that there was such an agreement same case, the parties bring actions but, since it was not in writing, as before two courts in different Member required by Article 17 of the Con States. More specifically, the Court is vention, it could not derogate from the called upon to define the concept of lis general criteria relating to jurisdiction. pendens recognized by the Convention Later, however, the Bundesgerichtshof and therefore to choose between two [Federal Supreme Court] (to which the possible interpretations of Article 21. The plaintiff had appealed after an unsuc first of those interpretations regards cessful appeal to the Oberlandesgericht Article 21 as a uniform rule for the [Higher Regional court], Munich) stayed definition of lis pendens and the second the proceedings and asked this Court to views it as a rule of private international decide whether, on the basis of Article 5 law, that is, a provision which refers to (1) and Article 17 of the said Con the legal system applicable to one or the vention, an agreement on the place of other court in order to ascertain, case by performance of an obligation, concluded case, the concept of lis pendens to be without observing the formalities applied in each action. Obviously, the specified in Article 17, was sufficient to second interpretation implies that there found jurisdiction in that place. are as many concepts of lis pendens as there are legal system in the Contracting States.

By its judgment of 17 January 1980 Siegfried Zeiger, merchant, owner of the ([1980] ECR 89), the Court replied that undertaking of the same name, whose the problem was to determine if the registered office is in Munich (Federal clause by which the parties fixed the Republic of Germany), brought an place of performance of a contractual action before the Landgericht [Regional obligation was valid according to the Court], Munich, against Sebastiano national law applicable to the contract. If Salinitri, also a merchant, who resides in it was, Article 5 (1) gave the court for Mascali, in Italy. He sought an order that place jurisdiction to take cognizance

1 — Translated from the Italian.

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of disputes relating to that obligation vention) is it the moment at which the irrespective of whether the formal con document initiating them was lodged ditions provided for under Article 17 had with the court ("Anhängigkeit") that is been observed. Since the clause at issue decisive or the moment at which — by was valid under German law, that service of that document on the decision implied that the Munich court defendant — the proceedings have had jurisdiction in the principal action. become fully instituted ("Rechtshängig Accordingly, the Bundesgerichtshof keit") ?" quashed the earlier decisions declining jurisdiction and remitted the case to the Landgericht for a fresh decision. 2. Since it provided for a plurality of courts (general and special), the Brussels Convention allows several international However, the story did not end there. jurisdictions to exist concurrently, and, Having heard new evidence and having as the Jenard Report (Official Journal, C requested an opinion from the Institute 59, 5. 3. 1979, p. 41) observes, that made of Comparative Law of the University of it necessary to regulate the question of lis Munich, the Landgericht once again pendens. That was done in Article 21 declined jurisdiction, but this time on the which provides that the courts of a ground that proceedings involving the Contracting State are of their own same cause of action had been brought motion to decline jurisdiction in regard (and were still pending) before the to proceedings brought before them Tribunale di Catania [District Court, when such proceedings are also pending Catania], the court which had jur before the courts of another State. The isdiction for the place in which the terms of that provision are clear: "Where defendant resided. In accordance with proceedings involving the same cause of the criterion of priority, it was the court action and between the same parties arc first seised which had jurisdiction, and brought in the courts of different... there was no doubt that, at the time States, any court other than the court when proceedings were brought before first seised shall ... decline the Landgericht, proceedings had already jurisdiction . . .". been initiated before the Italian court, the documents initiating the proceedings having been served on 13 January 1977 The problem raised by the national court and 23 September 1976 respectively. in this case concerns the expression "court other than the court first seised". The question which must be decided is The plaintiff did not accept that whether the priority therein referred to is unfavourable decision and brought an related to the lodging at the court appeal, contending that the decisive time registry of the document initiating the for identifying the court having proceedings or to service of that jurisdiction was not the moment at document on the defendant. The doubt which the document initiating the arises from the fact that the German proceedings was served but that at which version of Article 21 speaks of the proceedings were brought before the "Anhängigkeit". In the terminology of court. The Oberlandesgericht therefore German legal writing on the law of stayed the proceedings and referred the procedure and of German case-law, that following question to the Court for a term designates pendency deriving from preliminary ruling: "For the purposes of lodgment (and capable of producing resolving the question which court of a certain effects, such as causing time to Contracting State was first seised of cease to run for the purposes of proceedings (Article 21 of the Con limitation periods as provided for in

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Paragraph 270(3) of the Zivilpro court proposes. I would exclude in zeßordnung [Code of Civil Procedure]) particular the proposition that that whereas pendency which derives from provision lays down a concept of lis service and which removes jurisdiction pendens which is valid for the legal from a court later seised is defined as systems of the six Contracting States Rechtshängigkeit. The national court and, even more, that the concept is based suggests that it can be deduced from the on a concept of the institution of foregoing that Article 21 was intended to proceedings coincident with the lodging make priority dependent on the simple of the originating document. Let us leave lodging of the document initiating the aside for the moment the obviously proceedings. marginal argument derived from the German ' text of the Convention. A problem such as the one before the Court can only be resolved by (a) ascer taining what is meant by lis pendens in the context of Article 21, and (b) examining the six legal systems to see if That interpretation, which, obviously, they provide a uniform rule in this case sees in the expression "court other than and, therefore, if a uniform rule of law the court first seised" a uniform concept can be found in Article 21. of law, is confirmed, according to the national court, by the first paragraph of Article 22, which governs the staying of proceedings pending before any court other than the court first seised where the action in question is related to another action, brought before a court in Let us begin therefore with (a). The a different State. In the German text concept of lis [alibi] pendens implies, on of that provision, the past participle the one hand, that proceedings involving "brought" is rendered as erhohen which, the same cause of action have been in the language of German procedure, brought before different courts and, on designates the bringing of an action by the other, that there is a criterion for means of service of the document deciding which of the two courts is to be initiating it (Zustellung). The Oberlandes "master" of the proceedings. However, gericht observes that the use of two those criteria vary greatly. An English different words allows the conclusion to court, for example, can "disregard the be drawn that the authors of the fact that proceedings may already be Convention, modifying concepts peculiar pending before foreign courts" and can to German law, intended to lay down even "exceptionally. . . refuse to hear or two different types of pendency, one decide a case, if they believe it would be under Article 21, based on the lodging of better for the case to be heard before a the document initiating the proceedings, court having equivalent jurisdiction in and the other under Article 22, based on another State . . . because this would service of that document on the party. increase the likelihood of an efficient and impartial hearing of the particular case" (see Schlosser Report, Official Journal, C 59, 5. 3. 1979, p. 97). As has been seen, however, the Brussels Convention employs the criterion of priority. It therefore resolves the conflict 3. Let me say straight away that Article before the court to the disadvantage of 21 cannot be interpreted as the national the "court other than the court first

2412 ZELGER / SALINITRI seised". That, moreover, is the rule by pending from the moment of lodgment) which the national court must abide. as what Article 22 calls erhoben, it would appear to be establishing an autonomous concept of the institution of proceedings. However, what does "court other than I do not agree. I believe that the authors the court first seised" mean? The of the Convention did not employ the question presupposes a definition of the two terms to indicate different things. moment at which proceedings are Nor did they use anhängig to lend initiated and there are in theory two credence to the idea that, for the conceivable ways of carrying out that purposes of lis pendens, proceedings must task. The first is to identify that moment always and everywhere be considered without taking account of the many sub initiated by the lodgment of the stantive and procedural effects which the necessary document. Three factors various legal systems attach to it and the militate in fact against the doubts of the second is to determine it on the basis of national court. The first is that the the effects of a lis pendens and therefore distinction made in the German version deny jurisdiction in the proceedings to is not to be found in the French, Italian the court seised later. or Dutch versions. The second is that a lis pendens docs not arise in any of the other five countries prior to service of In my opinion, the first method leads the document initiating proceedings nowhere. Its purpose is to establish an upon the other party. The third is that, autonomous and neutral concept of the in German law itself, a lis pendens arises, institution of proceedings. It is futile, as I have already said, from service of however, to seek support for that prop the document originating proceedings ortion in the Convention itself. The and that law relies upon the earlier concept to which Article 21 refers when moment of lodgment for various other it speaks of "court other than the court purposes (such as, in certain cases, to firt seised" is, on the contrary, variable stop time running for the purposes of and divisible into its constituent parts limitation periods). according to the effects which are sought to be obtained from it, and the national legal systems offer us many examples of this. Let us take German law. When it is a question of time ceasing to run for the purposes of a period of limitation, 4. We have thus ascertained what reference is made purely to the lodging Article 21 means by lis pendens. Turning of the document initiating the pro now to the second aspect of the problem ceedings. When it is a question of before the Court, it must be asked if the identifying the lis pendens, that is, of rule laid down in that article is a uniform saying which court is "master" of the rule of law, that is, common to all the proceedings, it is service of that Contracting States, or if it refers to the document which is decisive. For two rules governing lis pendens under the different consequences, therefore, there legislation of each of those States. As we are two different concepts of the know, both possibilities are open (see in institution of proceedings. this context, as regards all the legal concepts to be found in the Convention, the judgment of 6 October 1976 in Case I pointed out that, in the view of the 12/76 Tessili ν Dun lop (1976) ECR Oberlandesgericht, a different conclusion 1473), and, in order to choose one or can be drawn from the German text of the other, there is no alternative but to Article 21. By defining anhängig (that is, examine successively each of the six legal

2413 OPINION OF MR MANCINI — CASE 129/83 systems. Can it be said that they contain Italian law is clearer. According to the a common concept of lis pendens f Better third paragraph of Article 39 of the still, can it be said that they designate the Code of Civil Procedure, "priority is same step in the procedure as the determined by service of the document decisive moment for the purposes of initiating proceedings", while registration identifying the court having jurisdiction of proceedings on the roll, which takes when the proceedings have been brought place after service and upon the initiative at different times before different courts? of the parties, has no effect on that situation. The same is true in Lux embourg. A lis pendens arises upon service (Article 61 and 171 of the Code of Civil Procedure) and, as the Tribunal d'Arrondissement [District Court], Luxembourg and the Cour Supérieure de I stated at the end of part 3 of this Justice [Supreme Court of Justice] have Opinion that they have something in pointed out, it is in no way affected by common: none of them places that registration of the proceedings on the moment in the procedural phase pre roll (judgment of 21 November 1957, ceding service of the document initiating Pas. lux., Vol. 17, p. 207 and judgment the proceedings on the defendant. of 9 November 1964, Pas. Lux., Vol. 19, According to Article 29 of the Belgian p. 426). The Netherlands rules are no Judicial Code, the court first seised is different. According to the first para identified by reference to the date of graph of Article 158 of the Wetboek van registration of the proceedings on the Burgerlijke Rechtsvordering [Code of roll (an event, mind, you, which follows Civil Procedure], there is a lis pendens and presupposes service of the document when the document initiating the initiating the proceedings on the other proceedings is served on the defendant. party). Germany has already been Registration, which must take place at spoken of several times (see Paragraph the latest on the day preceding the 253 (1) and Paragraph 261 (1), Zivil hearing for which the document Prozessordnung). In France, Article 100 initiating proceedings has been issued, is of the New Code of Civil Procedure not relevant (first paragraph, Article provides that "si le même litige est 135). pendant devant deux juridictions . . . également compétences .. ., la juridiction saisie en second lieu doit se dessaisir en faveur de l'autre". Moreover, according to Article 54, "la demande initiale" (which according to Article 53 "introduit l'instance") "est formée par assignation ou par remise d'une requête conjointe au secrétariat de la jurisdiction". However it 5. There are similar tendencies, there is not the mere unilateral lodging at the fore, but not identical rules. That, prin court registry of the document initiating cipally because of the Belgian rules and the proceedings which gives rise to a lis of the ambiguity of the French pendens. For this to occur, according to provisions, seems to me to be the the way in which Article 100 has been conclusion to which the comparative interpreted by the Cour de Cassation examination I have undertaken leads. If [Court of Cassation], it is essential that such is the case, it is not possible to the document initiating the proceedings elaborate a concept of lis pendens be notified to the other party (judgment common to and valid for all the legal of 24 April 1981, Bull. Civ., II, No 104). systems. Moreover, the Jenard Report

2414 ZELGER / SALINITRI takes the same view. It is stated in that undermining the possibilities of defence report that the Committee of Experts open to the defendant from two points which prepared the draft Convention of view. In the first place, because he is decided that there was "no need to unaware that proceedings have been specify in the text [of Article 21] the initiated against him before another point in time from which the proceedings court, he cannot raise the plea of lis alibi should be considered to be pending" and pendens in time and therefore take decided therefore to leave "this question prompt action to ensure that the case is to be settled by the internal law of each heard by the court first seised; secondly, Contracting State". because the rights of the defence would also be undermined because the mere lodging by the plaintiff of the document initiating the proceedings would prevent the defendant, even before that do cument had been served on him, from taking proceedings before another court which also had jurisdiction. Thus, Article 21 only permits solutions which do not However, the result which we have cause a lis pendens to arise before service. arrived at does not provide the complete Obviously, that does not prevent the answer to which the national court moment at which a lis pendens arises is entitled. Having decided that the from being shifted to a later stage (such provision is a rule of private international as, at the time of registration on the roll: law, it is now a question of ascertaining Article 29 of the Belgian Civil Code). if any national rules on lis penders are legitimate in the eyes of Community law and therefore capable of causing the renvoi provided for in Article 21 to become operative. I would doubt it. For example, I would not consider legitimate rules which limited the rights of the Nor is that all. In my opinion, the only defence. In fact, the Convention attaches systems which are in conformity with the particular importance to those rights objectives of the Convention are those when it includes among the conditions which make use of an automatic which will prevent recognition of a criterion to resolve the conflict between foreign judgment the fact that two courts before which proceedings the defendant was not "duly served with involving the same cause of action have the document which instituted the been brought. Leaving the choice to the proceedings... in sufficient time to discretion of those courts or to the enable him to arrange for his defence" parties would give rise to a situation of (Article 27 (2)). uncertainty and of competition between several authorities (what rule is to be applied, for example, if two courts in two different States both accept or decline jurisdiction?). It is precisely that situation that the concept of lis pendens is intended to overcome and that the Convention intended to eliminate. I It seems to me that to establish a link doubt therefore if the English, once they between a lis pendens and a procedural have ratified the Convention, can step preceding service of the document maintain in being the system to which I initiating the proceedings runs the risk of referred to in part 3 of this Opinion.

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6. For all the foregoing reasons, I propose that the Court reply as follows to the question referred to it by the Oberlandesgericht, Munich, by order of 22 June 1983, in the proceedings brought by Siegfried Zeiger against Sebastiano Salinitri:

Article 21 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (27 September 1968)), must be interpreted as meaning that the decisive time for determining the order of priority of two or more sets of proceedings involving the same cause of action and between the same parties brought in courts of different Contracting States, is the moment at which a lis pendens arises under the law of the court seised. That moment, however, must be identifiable by the application of objective criteria and must not precede service of the document initiating the proceeding on the defendant.

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