Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. 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 Convention) the Court of Appeal in the United Kingdom has referred for a preliminary ruling a number of questions concerning the interpretation of some of the Convention's provisions, notably Article 21 which deals with the question of lis pendens.

2. The questions were raised in a dispute between three reinsurance companies (Overseas Union Insurance Limited, OUI; Deutsche Ruck UK Reinsurance Limited, Deutsche Ruck; Pine Top Insurance Company Limited, Pine Top) and the insurers New Hampshire Insurance Company (New Hampshire) concerning the effects of a reinsurance policy.

3. The facts of the case and the course of the procedure were described in the order making the reference as follows. In September 1979 New Hampshire issued a policy of insurance to Nouvelles Galeries Réunies, a company incorporated in France, to cover risks for that company incurred under the five year warranty it gives on sales of electrical appliances. In December 1980 New Hampshire reinsured a proportion of that risk with OUI, Deutsche Ruck and Pine Top. In July 1986 the reinsurers ceased paying claims after raising a large number of queries concerning the operation and management of the insurance account.

First question

4. The first question concerns the applicability of Article 21 of the Convention. The Court of Appeal seeks to know whether Article 21 applies regardless of the domicile of the parties.

5. This Court has already delivered two judgments concerning Article 21 of the Convention.

6. In the first question the Court of Appeal asks whether the applicability of Article 21 of the Convention depends on the domicile of the parties and if so, of which one of them. The question was raised as a result of one of the arguments put forward by OUI, Deutsche Ruck and Pine Top before the Court of Appeal: they maintain that Article 21 of the Convention does not apply in this case as New Hampshire is not domiciled in a Contracting State, and in particular is not domiciled in France.

7. I now come back to the argument relied on by OUI, Deutsche Ruck and Pine Top as explained by them in their observations to this Court. They submit that Article 21 of the Convention applies solely if the defendant is domiciled in the territory of a Contracting State and not when, as the Court of Appeal assumed, he is not domiciled there. Whereas in the first case Article 2 and the provisions referred to in Article 3 of the Convention itself indicate which court has jurisdiction, jurisdiction in the second case is determined according to Article 4 of the Convention in each Contracting State by the law of that State. In that case English law provides that the principle of forum conveniens applies, according to which the English court itself may deal with the case if it is to be considered, in the circumstances of the case, as the most appropriate forum.

8. Article 21 of the Convention governs cases where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States. According to that article the court last seised (which I shall call the second court) must decline jurisdiction in favour of the court first seised (which I shall call the first court), unless it chooses to stay its proceedings where the jurisdiction of the first court is contested.

9. That interpretation is in accordance with the purpose of the provision. In Gubisch the Court of Justice described that purpose as follows (paragraph 8 of the decision):

Second and third questions

10. The second and third questions concern the interpretation of the second paragraph of Article 21 of the Convention.

11. Those questions arose as a result of an alternative argument relied on by OUI, Deutsche Ruck and Pine Top to the effect that the second paragraph of Article 21 of the Convention applies only where the first court has been properly seised, a fact which the second court must accordingly ascertain. If the English court did in fact examine the jurisdiction of the French court in their case, they maintain that it would be apparent that the French court is not entitled under the Convention to assume jurisdiction as regards Deutsche Ruck and Pine Top since they have their seat in England and ought therefore to have been sued there, and that as regards OUI, which is registered in England as an overseas company, the French court cannot derive jurisdiction from either the Convention or French law. New Hampshire contends, according to the order making reference, that the French courts do have jurisdiction on the ground that under French law it must be regarded as being domiciled in France for the purposes of the second paragraph of Article 4 of the Convention (or possibly the second paragraph of Article 8), and that such jurisdiction may in fact also be founded on Article 5(1) of the Convention.

12. The question whether the French courts have jurisdiction has not been put to this Court. The Court of Justice has been asked to give a preliminary ruling solely on the question whether the second court may or must examine the jurisdiction of the first.

13. Whether Article 16 of the Convention, like other articles (for instance Article 17) which confer exclusive jurisdiction, constitutes an exception to the rule laid down in Article 21 of the Convention is a question which I need not consider here. It has not been referred by the Court of Appeal. In any case, neither of the parties has suggested that this is a case of exclusive jurisdiction.

14. Now, as regards the questions actually referred, I agree with New Hampshire, the United Kingdom, the German Government and the Commission that the interpretation of the second paragraph of Article 21 of the Convention advocated by OUI, Deutsche Ruck and Pine Top (see paragraph 11, above) must be rejected. That is clear from the purpose of the provision, as just described.

15. Consequently, the second court must in circumstances such as those of the present case stay its proceedings, if it has not declined jurisdiction in favour of the first court. That also applies if the second court is of the opinion that the first court has no jurisdiction. In any case, whether the first court has jurisdiction or not is a matter not for the second court — leaving aside the case of exclusive jurisdiction — but for the first alone to decide. Any other conclusion would constitute an unjustified interference by the second court in the legal autonomy of the first.

Fourth question

16. The fourth question concerns the ambit of the provisions of Title II, Section 3, of the Convention with regard to reinsurance contracts. Since that question is asked only if the answer to the other questions indicates that the second court must or may examine the jurisdiction of the first court, I think that on the basis of the answers I have suggested up to now, this question needs no further consideration.

Conclusion

17. I suggest that the questions referred for a preliminary ruling should be answered as follows:

1 Original language: Dutch.

2 In view of the date on which the dispute was brought before the English courts (6 April 1988), these questions should be considered in the light of the Convention as amended by the Convention of Accession of 1978 (OJ 1978 L 304, p. 1) which came into force in the United Kingdom on 1 January 1987 (OJ 1986 C 285, p. 1). The version of the Convention as amended by the Convention of Accession of 1982 (OJ 1982 L 388, p 1) did not come into force in the Umletí Kingdom until 1 October 1989 (OJ 1989 C 249, p. 1). As regards the interpretation of the articles of the Convention discussed subsequently there is no difference because those anieles were not amended

3 Judgment of 8 December 1987 in Case 144/86 Cubmh [1987] ECR 4861.

4 Judgment of 7 June 1984 in Case 129/83 Zeiger [1984] ECR 2397.

5 See also: G. Droz, Compétence judiciaire et effets des jugements dans le marché commun 1972, p. 189, P. Gothot and D. Holleaux, La Convention de Bruxelles du 27 Septembre 1968, 1985 p. 123; P. Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments, 1987, p. 1221; J. Kropholler, Europäisches Zivilprozeßrecbt, 1987, p. 215.

6 G. Droz, op. cit., pp. 192-194; P. Kaye, op. cit., pp. 1221-1223.

7 Report by Mr P. Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1, at p. 41).

8 See to the same effect: P. Gothot and D. Holleaux, op. cit., p. 126; P. Kaye, op. cit., p. 1219.