Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. The present reference for a preliminary ruling requires the Court to interpret Article 21 of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (27 September 1968). The Court must lay down the criteria according to which the court first seised is to be identified when, in the same case, the parties bring actions before two courts in different Member States. More specifically, the Court is called upon to define the concept of lis pendens recognized by the Convention and therefore to choose between two possible interpretations of Article 21. The first of those interpretations regards Article 21 as a uniform rule for the definition of lis pendens and the second views it as a rule of private international law, that is, a provision which refers to the legal system applicable to one or the other court in order to ascertain, case by case, the concept of lis pendens to be applied in each action. Obviously, the second interpretation implies that there are as many concepts of lis pendens as there are legal system in the Contracting States.
2. Since it provided for a plurality of courts (general and special), the Brussels Convention allows several international jurisdictions to exist concurrently, and, as the Jenard Report (Official Journal, C 59, 5. 3. 1979, p. 41) observes, that made it necessary to regulate the question of lis pendens. That was done in Article 21 which provides that the courts of a Contracting State are of their own motion to decline jurisdiction in regard to proceedings brought before them when such proceedings are also pending before the courts of another State. The terms of that provision are clear: Where proceedings involving the same cause of action and between the same parties arc brought in the courts of different... States, any court other than the court first seised shall ... decline jurisdiction ....
3. Let me say straight away that Article 21 cannot be interpreted as the national court proposes. I would exclude in particular the proposition that that provision lays down a concept of lis pendens which is valid for the legal systems of the six Contracting States and, even more, that the concept is based on a concept of the institution of proceedings coincident with the lodging of the originating document. Let us leave aside for the moment the obviously 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) ascertaining what is meant by lis pendens in the context of Article 21, and (b) examining the six legal systems to see if they provide a uniform rule in this case and, therefore, if a uniform rule of law can be found in Article 21.
4. We have thus ascertained what Article 21 means by lis pendens. Turning now to the second aspect of the problem before the Court, it must be asked if the rule laid down in that article is a uniform rule of law, that is, common to all the Contracting States, or if it refers to the rules governing lis pendens under the legislation of each of those States. As we know, both possibilities are open (see in this context, as regards all the legal concepts to be found in the Convention, the judgment of 6 October 1976 in Case 12/76 Tessili ν Dun lop (1976) ECR 1473), and, in order to choose one or the other, there is no alternative but to examine successively each of the six legal systems. Can it be said that they contain a common concept of lis pendens ? Better still, can it be said that they designate the same step in the procedure as the decisive moment for the purposes of identifying the court having jurisdiction when the proceedings have been brought at different times before different courts?
5. There are similar tendencies, therefore, but not identical rules. That, principally because of the Belgian rules and of the ambiguity of the French provisions, seems to me to be the conclusion to which the comparative examination I have undertaken leads. If such is the case, it is not possible to elaborate a concept of lis pendens common to and valid for all the legal systems. Moreover, the Jenard Report takes the same view. It is stated in that report that the Committee of Experts which prepared the draft Convention decided that there was no need to specify in the text [of Article 21] the point in time from which the proceedings should be considered to be pending and decided therefore to leave this question to be settled by the internal law of each Contracting State.
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:
1 Translated from the Italian.