27

Taking the view that, in principle, the conditions laid down by Article 27(1) of that regulation or, at the very least, those laid down in Article 28(1) and (3) thereof had been fulfilled, the Oberlandesgericht München decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does the scope of Article 27 of [Regulation No 44/2001] extend also to cases in which two parties in one action each have the role of defendant because both parties have been sued by a third party, and in the other action have the roles of applicant and defendant? In such a situation are there proceedings “between the same parties”, or must the different claims raised by the applicant against the two defendants in the first action be examined separately, so that there cannot be taken to be proceedings “between the same parties”? 2. Are there proceedings involving “the same cause of action” within the meaning of Article 27 of Regulation No 44/2001 if the claims and arguments in the two actions are indeed different, but (a) the same preliminary issue has to be answered in order to decide both actions, or (b) in one action, by a claim in the alternative, a declaration is sought as to a legal relationship which features in the other action as a preliminary issue? 3. Are there proceedings which have as their object a right in rem in immovable property within the meaning of Article 22(1) of Regulation No 44/2001 if a declaration is sought that the defendant did not validly exercise a right in rem of pre-emption over land situated in Germany which indisputably exists in German law? 4. Is the court second seised, when making its decision under Article 27(1) of Regulation No 44/2001, and hence before the question of jurisdiction is decided by the court first seised, obliged to ascertain whether the court first seised lacks jurisdiction because of Article 22(1) of Regulation No 44/2001, because such lack of jurisdiction of the court first seised would, under Article 35(1) of Regulation No 44/2001, lead to a judgment of the court first seised not being recognised? Is Article 27(1) of Regulation No 44/2001 not applicable for the court second seised if the court second seised comes to the conclusion that the court first seised lacks jurisdiction because of Article 22(1) of Regulation No 44/2001? 5. Is the court second seised, when making its decision under Article 27(1) of Regulation No 44/2001, and hence before the question of jurisdiction is decided by the court first seised, obliged to examine the complaint of one party that the other party acted in abuse of process by bringing proceedings before the court first seised? Is Article 27(1) of Regulation No 44/2001 not applicable for the court second seised if the court second seised comes to the conclusion that the bringing of proceedings before the court first seised was an abuse of process? 6. Does the application of Article 28(1) of Regulation No 44/2001 presuppose that the court second seised has previously decided that Article 27(1) of Regulation No 44/2001 does not apply in the specific case? 7. May account be taken in the exercise of the discretion allowed by Article 28(1) of Regulation No 44/2001: (a) of the fact that the court first seised is situated in a Member State in which proceedings statistically last considerably longer than in the Member State in which the court second seised is situated, (b) of the fact that, in the assessment of the court second seised, the law of the Member State in which the court second seised is situated is applicable, (c) of the age of one of the parties, (d) of the prospects of success of the action before the court first seised? 8. In the interpretation and application of Articles 27 and 28 of Regulation No 44/2001, in addition to the aim of avoiding irreconcilable or contradictory judgments, must the second applicant’s entitlement to justice be taken into account?’