Summary
Parties
Grounds
Decision on costs
Operative part
Keywords

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CONVENTION ON JURISDICTION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS - LIS PENDENS - CONCEPT - INDEPENDENT INTERPRETATION - ACTIONS INVOLVING THE SAME SUBJECT-MATTER AND THE SAME CAUSE OF ACTION - ACTION FOR RESCISSION OR DISCHARGE OF A CONTRACT AND ACTION TO ENFORCE THE CONTRACT

( CONVENTION OF 27 SEPTEMBER 1968, ART . 21 )

Summary

THE TERMS USED IN ARTICLE 21 OF THE CONVENTION OF 27 SEPTEMBER 1968 IN ORDER TO DETERMINE WHETHER A SITUATION OF LIS PENDENS ARISES MUST BE REGARDED AS INDEPENDENT .

LIS PENDENS WITHIN THE MEANING OF THAT ARTICLE ARISES WHERE A PARTY BRINGS AN ACTION BEFORE A COURT IN A CONTRACTING STATE FOR THE RESCISSION OR DISCHARGE OF AN INTERNATIONAL SALES CONTRACT WHILST AN ACTION BY THE OTHER PARTY TO ENFORCE THE SAME CONTRACT IS PENDING BEFORE A COURT IN ANOTHER CONTRACTING STATE .

Parties

IN CASE 144/86

REFERENCE TO THE COURT PURSUANT TO 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 CORTE SUPREMA DI CASSAZIONE, ROME, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

GUBISCH MASCHINENFABRIK KG, WHOSE REGISTERED OFFICE IS IN FLENSBURG,

AND

GIULIO PALUMBO, RESIDENT IN ROME,

ON THE INTERPRETATION OF ARTICLE 21 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( OFFICIAL JOURNAL 1978, L 304, P . 77 ),

THE COURT ( SIXTH CHAMBER )

COMPOSED OF : O . DUE AND G . C . RODRIGUEZ IGLESIAS ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, K . BAHLMANN AND C . KAKOURIS, JUDGES,

ADVOCATE GENERAL : G . F . MANCINI

REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

GUBISCH MASCHINENFABRIK KG, BY E . MEISSNER, IN THE WRITTEN PROCEDURE,

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, BY C . BOEHMER, IN THE WRITTEN PROCEDURE,

THE GOVERNMENT OF THE ITALIAN REPUBLIC, BY O . FIUMARA, IN THE WRITTEN PROCEDURE,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY G . BERARDIS, IN THE WRITTEN AND ORAL PROCEDURES,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 19 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 11 JUNE 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN ORDER OF 9 JANUARY 1986, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 12 JUNE 1986, THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ), ROME, REFERRED 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 ( HEREINAFTER REFERRED TO AS "THE CONVENTION ") A QUESTION ON THE INTERPRETATION OF ARTICLE 21 OF THE CONVENTION .

2 THAT QUESTION AROSE IN A DISPUTE BETWEEN GUBISCH MASCHINENFABRIK KG ( HEREINAFTER REFERRED TO AS "GUBISCH "), WHOSE REGISTERED OFFICE IS IN FLENSBURG ( FEDERAL REPUBLIC OF GERMANY ), AND MR PALUMBO, RESIDENT IN ROME, RELATING TO THE VALIDITY OF A CONTRACT OF SALE . MR PALUMBO BROUGHT PROCEEDINGS AGAINST GUBISCH BEFORE THE TRIBUNALE DI ROMA ( DISTRICT COURT, ROME ) FOR A DECLARATION THAT THE CONTRACT WAS INOPERATIVE ON THE GROUND THAT HIS ORDER HAD BEEN REVOKED BEFORE IT REACHED GUBISCH FOR ACCEPTANCE . IN THE ALTERNATIVE, THE PLAINTIFF CLAIMED THE CONTRACT SHOULD BE SET ASIDE FOR LACK OF CONSENT OR, IN THE ALTERNATIVE, ITS DISCHARGE ON THE GROUND THAT GUBISCH HAD NOT COMPLIED WITH THE TIME-LIMIT FOR DELIVERY .

3 GUBISCH OBJECTED THAT THE TRIBUNALE DI ROMA LACKED JURISDICTION, IN ACCORDANCE WITH ARTICLE 21 OF THE CONVENTION, ON THE GROUND THAT IT HAD ALREADY BROUGHT AN ACTION BEFORE THE LANDGERICHT ( REGIONAL COURT ), FLENSBURG, TO ENFORCE PERFORMANCE BY MR PALUMBO OF HIS OBLIGATION UNDER THE CONTRACT, NAMELY PAYMENT FOR THE MACHINE HE HAD PURCHASED .

4 THE TRIBUNALE DI ROMA DISMISSED THE OBJECTION OF LIS PENDENS BASED ON ARTICLE 21 OF THE CONVENTION; GUBISCH APPEALED TO THE CORTE SUPREMA DI CASSAZIONE, WHICH STAYED THE PROCEEDINGS AND REFERRED TO THE COURT THE FOLLOWING QUESTION FOR A PRELIMINARY RULING :

"DOES A CASE WHERE, IN RELATION TO THE SAME CONTRACT, ONE PARTY APPLIES TO A COURT IN A CONTRACTING STATE FOR A DECLARATION THAT THE CONTRACT IS INOPERATIVE ( OR IN ANY EVENT FOR ITS DISCHARGE ) WHILST THE OTHER INSTITUTES PROCEEDINGS BEFORE THE COURTS OF ANOTHER CONTRACTING STATE FOR ITS ENFORCEMENT FALL WITHIN THE SCOPE OF THE CONCEPT OF LIS PENDENS PURSUANT TO ARTICLE 21 OF THE BRUSSELS CONVENTION OF 27 SEPTEMBER 1968?"

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 IN ORDER TO ANSWER THE QUESTION SUBMITTED, IT IS NECESSARY TO DETERMINE FIRST OF ALL WHETHER THE TERMS USED IN ARTICLE 21 OF THE CONVENTION IN ORDER TO DESCRIBE THE CIRCUMSTANCES CONSTITUTING LIS PENDENS ( AN EXPRESSION USED SOLELY IN THE HEADING OF SECTION 8 OF TITLE II ) ARE TO BE INTERPRETED INDEPENDENTLY OR ARE TO BE REGARDED AS REFERRING TO THE NATIONAL LAW OF ONE OR OTHER OF THE STATES CONCERNED .

7 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 6 OCTOBER 1976 IN CASE 12/76 TESSILI V DUNLOP (( 1976 )) ECR 1473, NEITHER OF THOSE TWO OPTIONS RULES OU