Cartier parfums — lunettes SAS and Axa Corporate Solutions assurances SA v Ziegler France SA and Others.
Date: 2014-02-27
25. In that connection, it must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑184/12 Unamar  [2013] ECR, paragraph 28 and the case-law cited).
26. Furthermore, it must be observed that nothing in the documents before the Court suggests that the main proceedings fall within an exclusive head of jurisdiction laid down in Article 22 of Regulation No 44/2001. The Court’s ruling does not, therefore, have to cover cases in which the court second seised has such exclusive jurisdiction (see, to that effect, Case C‑351/89 Overseas Union Insurance and Others  [1991] ECR I‑3317, paragraph 20).
31. Next, as the French Government and the European Commission rightly observed, Regulation No 44/2001 does not set out in what circumstances the jurisdiction of the court first seised must be regarded as ‘established’ within the meaning of Article 27 thereof.
32. According to settled case-law, the provisions of that regulation must be interpreted independently, by reference to its scheme and purpose (see, Case C‑456/11 Gothaer Allgemeine Versicherung and Other s [2012] ECR, paragraph 25 and the case-law cited).
34. In the first place, as regards the overall scheme of Regulation No 44/2001, it must be recalled that the first sentence of Article 24 of Regulation No 44/2001 provides for a rule of jurisdiction based on the entering of an appearance by the defendant in respect of all disputes where the jurisdiction of the court seised is not derived from other provisions of that regulation. That provision applies also in cases where the court has been seised in breach of the provisions of that regulation and implies that the entering of an appearance by the defendant may be considered to be a tacit acceptance of the jurisdiction of the court seised and thus a prorogation of that court’s jurisdiction (Case C‑111/09 ČPP Vienna Insurance Group  [2010] ECR I‑4545, paragraph 21).
35. The second sentence of Article 24 of Regulation No 44/2001 provides for exceptions to that general rule. It determines that there is no tacit prorogation of jurisdiction of the court seised where the defendant contests the jurisdiction, thereby expressing his intention not to accept that court’s jurisdiction, or where the dispute is one in respect of which Article 22 of that regulation provides for rules on exclusive jurisdiction ( ČPP Vienna Insurance Group , paragraph 22).
36. The Court has already held that it is clear from Article 18 of the Brussels Convention, a provision which in essence is identical to Article 24 of Regulation No 44/2001, that the challenge to jurisdiction may not occur after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised (Case 150/80 Elefanten Schuh  [1981] ECR 1671, paragraph 16, and Case C‑144/12 Goldbet Sportwetten  [2013] ECR, paragraph 37).
37. Moreover, the Court has held that Article 18 of the Brussels Convention also applies in a case where the defendant makes submissions on both the jurisdiction of the court and the substance of the dispute. However, the challenge to jurisdiction may have the result attributed to it by Article 18 only if the applicant and the court seised of the matter are able to ascertain from the time of the defendant’s first defence that it is intended to contest the jurisdiction of the court (see, to that effect, Elefanten Schuh , paragraphs 14 and 15).
40. In the second place, as regards the purpose itself of Regulation No 44/2001, it must be recalled that one of the aims of that regulation, as is clear from recital 15 in the preamble thereto, is to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given where a number of courts have jurisdiction to hear the same dispute. It is for that purpose that the European Union legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens. It follows that, in order to achieve those aims, Article 27 of Regulation No 44/2001 must be interpreted broadly ( Overseas Union Insurance and Others , paragraph 16).
42. Furthermore, as is clear from the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1) and the case-law of the Court on Article 21 thereof, which corresponds to Article 27 of Regulation No 44/2001, the aim of the rule on lis pendens is also to avoid negative conflicts of jurisdiction. That rule was introduced so that the parties would not have to institute new proceedings if, for example, the court first seised of the matter were to decline jurisdiction (see Overseas Union Insurance and Others , paragraph 22).
44. Accordingly, it must be held that it is clear both from the overall scheme and the purpose of Regulation No 44/2001 that, in order for the jurisdiction of the court first seised to be established within the meaning of Article 27(2) thereof, it is sufficient, where the court second seised does not have exclusive jurisdiction under that regulation, that the court first seised has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded by national procedural law as being the first defence.