Opinion of the Advocate General — ECLI:EU:C:2003:436
Date: 2003-09-09
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: Austria

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) 
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SUMMARY — CASE C-116/02 
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 Proto­
col of 3 June 1971 on the interpretation 
by the Court of Justice of the Con­
vention of 27 September 1968 on 
Jurisdiction and the Enforcement of 
Judgments in Civil and Commercial 
Matters, as amended by the Conven­
tion of 9 October 1978 on the Acces­
sion 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 Aus­
tria, 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 interpre­
tation 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 
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GASSER 
has been claimed under an agreement 
conferring jurisdiction must neverthe­
less 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 pro­
cedural 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 inter­
preted 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 estab­
lished is excessively long. 
An interpretation whereby the appli­
cation 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) 
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