Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Italian Court of Cassation seeks an interpretation of the concept of lis pendens pursuant to the first paragraph of Article 21 of the Brussels Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the Convention).

2. The view is generally held that the concept of lis pendens to which Article 21 refers must be interpreted independently, that is to say without reference to its definition under the lex fori. There is disagreement, however, as regards the conditions governing the operation of that provision. According to the Italian Government, that provision must be interpreted literally. In other words, for lis pendens to arise, the actions brought by the parties must involve the same subject-matter and the same cause of action. Otherwise, the relationship, if any, between proceedings pending before the courts of different States is determined and regulated in the Convention by the rules on related actions. Consequently, and for the same reasons as those specified by the tribunale di Roma, the question submitted for a preliminary ruling must be answered in the negative.

3. Both points of view are plausible and are skilfully argued. In my view, however, the first is more persuasive.

4. With that in mind, I now turn to this case. It is clear from the order for reference that the action pending before the tribunale di Roma is for a declaration that a contract of sale is inoperative because the offer was revoked, whilst the action before the German court assumes the validity of the contract and seeks to obtain judgment for the amount of the price. As the Commission has pointed out, the two cases do not involve either the same subject-matter or the same cause of action. Both cases are indeed concerned with the question whether a contract exists and whether it is operative. In the case pending before the Landgericht Flensburg, however, that question is secondary or, to be more precise, preliminary to consideration of the substance of the action to enforce payment of the price. In such circumstances, it is impossible to endorse the argument of the German Government that, for the purposes of the first paragraph of Article 21, the action for a declaration that the contract is inoperative is substantially incorporated in the action to enforce the contract. From the procedural point of view, the relief sought by the plaintiff in the two cases differs widely in terms of its scope and its effects.

5. In the light of all the foregoing considerations I suggest that the Court answer the question submitted by the Italian Court of Cassation by order of 28 May 1986 in proceedings brought by Gubisch Maschinenfabrik KG against Giulio Palumbo as follows:

1 Translated from the Italian.