Judgment of the Court of 9 December 2003 in Case C-116/02 (Reference for a preliminary ruling from the Oberlandesgericht Innsbruck): Erich Gasser GmbH v MISAT Srl (Brussels Convention — Article 21 — Lis pendens — Article 17 — Agreement conferring jurisdiction — Obligation to stay proceedings of court second seised designated in an agreement conferring jurisdiction — Excessive duration of proceedings before courts in the Member State of the court first seised)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Court of Justice of the European Union, courts and tribunals, judicial proceedings, jurisdiction, preliminary issue

24.1.2004

EN

Official Journal of the European Union

C 21/7

2.

The principle of non-discrimination laid down by Article 7(4)
of Regulation (EEC) No 1612/68 of the Council of 15 October
1968 on freedom of movement
for workers within the
Community does not preclude a person carrying on an activity
as a post-graduate student, such as the person in the main
proceedings, from being deemed, in a Member State, to be a
trainee fellowship student who is not entitled to any rights
under the national system of unemployment benefits, even
though in other Member States a person carrying on similar
activities is deemed to be carrying on an occupational activity
and is entitled to benefits under the unemployment benefits
system.

(1) OJ C 118 of 18.5.2002.

JUDGMENT OF THE COURT

of 9 December 2003

in Case C-116/02 (Reference for a preliminary ruling from
the Oberlandesgericht Innsbruck): Erich Gasser GmbH v
MISAT Srl (1)

(Brussels Convention — Article 21 — Lis pendens —
Article 17 — Agreement conferring jurisdiction — Obli-
gation to stay proceedings of court second seised designated
in an agreement conferring jurisdiction — Excessive duration
of proceedings before courts in the Member State of the court
first seised)

(2004/C 21/12)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-116/02: Reference to the Court 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
by the Oberlandesgericht Innsbruck (Austria) for a preliminary
ruling in the proceedings pending before that court between
Erich Gasser GmbH and MISAT Srl, on the interpretation of
Article 21 of the abovementioned Convention of 27 September
1968, as amended by the Convention of 9 October 1978 on
the accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ
1978 L 304, p. 1, and — amended text — p. 77), by the
Convention of 25 October 1982 on the accession of the
Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of
26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic (OJ 1989 L 285, p. 1) and by the
Convention of 29 November 1996 on the accession of the

Republic of Austria, the Republic of Finland and the Kingdom
of Sweden (OJ 1997 C 15, p. 1), the Court, composed
of: V. Skouris, President, P. Jann, C. W. A. Timmermans,
C. Gulmann, J. N. Cunha Rodrigues and A. Rosas (Presidents
of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
R. Schintgen (Rapporteur), F. Macken, N. Colneric and S. von
Bahr, Judges; P. Léger, Advocate General; M.-F. Contet, Princi-
pal Administrator, for the Registrar, has given a judgment on
9 December 2003, in which it has ruled:

1. A national court may, 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, as amended by
the Convention of 9 October 1978 on the accession 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 Austria, the Republic of Finland and the Kingdom
of Sweden, refer to the Court of Justice a request for interpret-
ation 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 interpretation of the Convention and
to explain why it considers that a reply to its questions is
necessary to enable it to give judgment.

2. Article 21 of the Brussels Convention must be interpreted as
meaning that a court second seised whose jurisdiction has been
claimed under an agreement
conferring jurisdiction must
nevertheless stay proceedings until the court first seised has
declared that it has no jurisdiction.

3. Article 21 of the Brussels Convention must be interpreted 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 established is excessively
long.

(1) OJ C 144 of 15.6.2002.