Erich Gasser GmbH v MISAT Srl.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Schintgen
• ECLI: ECLI:EU:C:2003:657
• Date: 09 December 2003
• Docket Number: C-116/02
• Procedure Type: Reference for a preliminary ruling

Case C-116/02


Erich Gasser GmbH
v
MISAT Srl


(Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria))

«(Brussels Convention – Article 21 – Lis pendens – Article 17 – Agreement conferring jurisdiction – Obligation to stay proceedings of court second seised designated in an agreement conferring jurisdiction – Excessive duration of proceedings before courts in the Member State of the court first seised)»

Opinion of Advocate General Léger delivered on 9 September 2003

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Judgment of the Court (Full Court), 9 December 2003

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Summary of the Judgment

1..

Convention on Jurisdiction and the Enforcement of Judgments – Protocol on the Interpretation of the Convention by the Court of Justice – Preliminary rulings – Jurisdiction of the Court of Justice – Question relying on the submissions of a party to the main proceedings – Whether admissible – Conditions

(Brussels Convention of 27 September 1968; Protocol of 3 June 1971)

2..

Convention on Jurisdiction and the Enforcement of Judgments – Lis pendens – Actions brought before courts in different Contracting States – Jurisdiction of the court second seised claimed under an agreement conferring jurisdiction – Not relevant to the obligation to decline jurisdiction

(Brussels Convention of 27 September 1968, Art. 21)

3..

Convention on Jurisdiction and the Enforcement of Judgments – Lis pendens – Actions brought before courts in different Contracting States – Excessive duration of proceedings before courts in the Member State of the court first seised – Not relevant to the application of Article 21 of the Convention

(Brussels Convention of 27 September 1968, Art. 21)

1.

A national court may, 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 the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, refer to the Court of Justice a request for interpretation of the Brussels Convention, even where it relies on the submissions of a party to the main proceedings of which it has not yet examined the merits, provided that it considers, having regard to the particular circumstances of the case, that a preliminary ruling is necessary to enable it to give judgment and that the questions on which it seeks a ruling from the Court are relevant. It is nevertheless incumbent on the national court to provide the Court of Justice with factual and legal information enabling it to give a useful interpretation of the Convention and to explain why it considers that a reply to its questions is necessary to enable it to give judgment. see para. 27, operative part 1

2.

Article 21 of the Brussels Convention must be interpreted as meaning 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. That fact is not such as to call in question the application of the procedural rule contained in Article 21 of the Convention, which is based clearly and solely on the chronological order in which the courts involved are seised. see paras 47, 54, operative part 2

3.

Article 21 of the Brussels Convention of 27 September 1968 must be interpreted as meaning that it cannot be derogated from where, in general, the duration of proceedings before the courts of the Contracting State in which the court first seised is established is excessively long. An interpretation whereby the application of that article should be set aside in such a situation would be manifestly contrary both to the letter and spirit and to the aim of the Convention. see paras 70, 73, operative part 3

JUDGMENT OF THE COURT (Full Court)
9 December 2003 (1)

((Brussels Convention – Article 21 – Lis pendens – Article 17 – Agreement conferring jurisdiction – Obligation to stay proceedings of court second seised designated in an agreement conferring jurisdiction – Excessive duration of proceedings before courts in the Member State of the court first seised))

In Case C-116/02, 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 the Enforcement of Judgments in Civil and Commercial Matters by the Oberlandesgericht Innsbruck (Austria) for a preliminary ruling in the proceedings pending before that court between Erich Gasser GmbH

and

MISAT Srl, on the interpretation of Article 21 of the abovementioned Convention of 27 September 1968, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and ─ amended text ─ p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1),

THE COURT (Full Court),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas (Presidents of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken, N. Colneric and S. von Bahr, Judges, Advocate General: P. Léger,
Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Erich Gasser GmbH, by K. Schelling, Rechtsanwalt,

─

MISAT Srl, by U.C. Walter, Rechtsanwältin,

─

the Italian Government, by I.M. Braguglia, acting as Agent, assisted by O. Fiumara, Vice Avvocato Generale dello Stato,

─

the United Kingdom Government, by K. Manji, acting as Agent, and by D. Lloyd Jones QC,

─

the Commission of the European Communities, by A.-M. Rouchaud-Joët and S. Grünheid, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Erich Gasser GmbH, the Italian Government, the United Kingdom Government and the Commission at the hearing on 13 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 9 September 2003,

gives the following

Judgment

1

By judgment of 25 March 2002, received at the Court on 2 April 2002, the Oberlandesgericht (Higher Regional Court) Innsbruck 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 the Enforcement of Judgments in Civil and Commercial Matters (the Protocol), a number of questions on the interpretation of Article 21 of the abovementioned Convention of 27 September 1968, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and ─ amended text ─ p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1) (the Brussels Convention or the Convention).

2

Those questions were raised in proceedings between Erich Gasser GmbH ( Gasser), a company incorporated under Austrian law, and MISAT Srl ( MISAT), a company incorporated under Italian law, following a breakdown in their business relations.

Legal background

3

The aim of the Convention, according to its preamble, is to facilitate the reciprocal recognition and enforcement of judgments in accordance with Article 293 EC and to strengthen the legal protection of persons established in the Community. The preamble also states that it is necessary for that purpose to determine the international jurisdiction of the courts of the Contracting States.

4

The provisions on jurisdiction are contained in Title II of the Brussels Convention. Article 2 of the Convention lays down the general rule that the courts in the State in which the defendant is domiciled are to have jurisdiction. Article 5 of the Convention provides, however, that in matters relating to a contract the defendant may be sued in the courts for the place where the obligation which the action seeks to enforce was or should have been performed.

5

Article 16 of the Convention lays down rules governing exclusive jurisdiction. In particular, pursuant to Article 16(1)(a), in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated are to have exclusive jurisdiction.

6

Articles 17 and 18 of the Convention deal with the attribution of jurisdiction. Article 17 is worded as follows:If the parties, one or more of whom is domiciled in a Contracting...