Gubisch Maschinenfabrik KG v Giulio Palumbo.
Date: 1987-12-08
7 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 6 OCTOBER 1976 IN CASE 12/76 TESSILI V DUNLOP (( 1976 )) ECR 1473, NEITHER OF THOSE TWO OPTIONS RULES OUT THE OTHER SINCE THE APPROPRIATE CHOICE CAN BE MADE ONLY IN RESPECT OF EACH OF THE PROVISIONS OF THE CONVENTION TO ENSURE THAT IT IS FULLY EFFECTIVE HAVING REGARD TO THE OBJECTIVES OF ARTICLE 220 OF THE EEC TREATY .
8 ACCORDING TO ITS PREAMBLE, WHICH INCORPORATES IN PART THE TERMS OF ARTICLE 220, THE CONVENTION SEEKS IN PARTICULAR TO FACILITATE THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS OF COURTS OR TRIBUNALS AND TO STRENGTHEN IN THE COMMUNITY THE LEGAL PROTECTION OF PERSONS THEREIN ESTABLISHED . ARTICLE 21, TOGETHER WITH ARTICLE 22 ON RELATED ACTIONS, IS CONTAINED IN SECTION 8 OF TITLE II OF THE CONVENTION; THAT SECTION IS INTENDED, IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE WITHIN THE COMMUNITY, TO PREVENT PARALLEL PROCEEDINGS BEFORE THE COURTS OF DIFFERENT CONTRACTING STATES AND TO AVOID CONFLICTS BETWEEN DECISIONS WHICH MIGHT RESULT THEREFROM . THOSE RULES ARE THEREFORE DESIGNED TO PRECLUDE, IN SO FAR AS IS POSSIBLE AND FROM THE OUTSET, THE POSSIBILITY OF A SITUATION ARISING SUCH AS THAT REFERRED TO IN ARTICLE 27 ( 3 ), THAT IS TO SAY THE NON-RECOGNITION OF A JUDGMENT ON ACCOUNT OF ITS IRRECONCILABILITY WITH A JUDGMENT GIVEN IN A DISPUTE BETWEEN THE SAME PARTIES IN THE STATE IN WHICH RECOGNITION IS SOUGHT .
11 HAVING REGARD TO THE AFORESAID OBJECTIVES OF THE CONVENTION AND TO THE FACT THAT ARTICLE 21, INSTEAD OF REFERRING TO THE TERM LIS PENDENS AS USED IN THE DIFFERENT NATIONAL LEGAL SYSTEMS OF THE CONTRACTING STATES, LAYS DOWN A NUMBER OF SUBSTANTIVE CONDITIONS AS COMPONENTS OF A DEFINITION, IT MUST BE CONCLUDED THAT THE TERMS USED IN ARTICLE 21 IN ORDER TO DETERMINE WHETHER A SITUATION OF LIS PENDENS ARISES MUST BE REGARDED AS INDEPENDENT .
14 IT MUST BE OBSERVED FIRST OF ALL THAT ACCORDING TO ITS WORDING ARTICLE 21 APPLIES WHERE TWO ACTIONS ARE BETWEEN THE SAME PARTIES AND INVOLVE THE SAME CAUSE OF ACTION AND THE SAME SUBJECT-MATTER; IT DOES NOT LAY DOWN ANY FURTHER CONDITIONS . EVEN THOUGH THE GERMAN VERSION OF ARTICLE 21 DOES NOT EXPRESSLY DISTINGUISH BETWEEN THE TERMS "SUBJECT-MATTER" AND "CAUSE OF ACTION", IT MUST BE CONSTRUED IN THE SAME MANNER AS THE OTHER LANGUAGE VERSIONS, ALL OF WHICH MAKE THAT DISTINCTION .
16 IN PARTICULAR, IN A CASE SUCH AS THIS, INVOLVING THE INTERNATIONAL SALE OF TANGIBLE MOVEABLE PROPERTY, IT IS APPARENT THAT THE ACTION TO ENFORCE THE CONTRACT IS AIMED AT GIVING EFFECT TO IT, AND THAT THE ACTION FOR ITS RESCISSION OR DISCHARGE IS AIMED PRECISELY AT DEPRIVING IT OF ANY EFFECT . THE QUESTION WHETHER THE CONTRACT IS BINDING THEREFORE LIES AT THE HEART OF THE TWO ACTIONS . IF IT IS THE ACTION FOR RESCISSION OR DISCHARGE OF THE CONTRACT THAT IS BROUGHT SUBSEQUENTLY, IT MAY EVEN BE REGARDED AS SIMPLY A DEFENCE AGAINST THE FIRST ACTION, BROUGHT IN THE FORM OF INDEPENDENT PROCEEDINGS BEFORE A COURT IN ANOTHER CONTRACTING STATE .
17 IN THOSE PROCEDURAL CIRCUMSTANCES IT MUST BE HELD THAT THE TWO ACTIONS HAVE THE SAME SUBJECT-MATTER, FOR THAT CONCEPT CANNOT BE RESTRICTED SO AS TO MEAN TWO CLAIMS WHICH ARE ENTIRELY IDENTICAL .
18 IF, IN CIRCUMSTANCES SUCH AS THOSE OF THIS CASE, THE QUESTIONS AT ISSUE CONCERNING A SINGLE INTERNATIONAL SALES CONTRACT WERE NOT DECIDED SOLELY BY THE COURT BEFORE WHICH THE ACTION TO ENFORCE THE CONTRACT IS PENDING AND WHICH WAS SEISED FIRST, THERE WOULD BE A DANGER FOR THE PARTY SEEKING ENFORCEMENT THAT UNDER ARTICLE 27 ( 3 ) A JUDGMENT GIVEN IN HIS FAVOUR MIGHT NOT BE RECOGNIZED, EVEN THOUGH ANY DEFENCE PUT FORWARD BY THE DEFENDANT ALLEGING THAT THE CONTRACT WAS NOT BINDING HAD NOT BEEN ACCEPTED . THERE CAN BE NO DOUBT THAT A JUDGMENT GIVEN IN A CONTRACTING STATE REQUIRING PERFORMANCE OF THE CONTRACT WOULD NOT BE RECOGNIZED IN THE STATE IN WHICH RECOGNITION WAS SOUGHT IF A COURT IN THAT STATE HAD GIVEN A JUDGMENT RESCINDING OR DISCHARGING THE CONTRACT . SUCH A RESULT, RESTRICTING THE EFFECTS OF EACH JUDGMENT TO THE TERRITORY OF THE STATE CONCERNED, WOULD RUN COUNTER TO THE OBJECTIVES OF THE CONVENTION, WHICH IS INTENDED TO STRENGTHEN LEGAL PROTECTION THROUGHOUT THE TERRITORY OF THE COMMUNITY AND TO FACILITATE RECOGNITION IN EACH CONTRACTING STATE OF JUDGMENTS GIVEN IN ANY OTHER CONTRACTING STATE .