Siegfried Zelger v Sebastiano Salinitri.
Date: 1984-06-07
10 IT SHOULD BE POINTED OUT THAT THE RULES OF PROCEDURE OF THE VARIOUS CONTRACTING STATES ARE NOT IDENTICAL AS REGARDS DETERMINING THE DATE AT WHICH THE COURTS ARE SEISED .
11 IT APPEARS FROM INFORMATION ON COMPARATIVE LAW PLACED BEFORE THE COURT THAT IN FRANCE , ITALY , LUXEMBOURG AND THE NETHERLANDS THE ACTION IS CONSIDERED TO BE PENDING BEFORE THE COURT FROM THE MOMENT AT WHICH THE DOCUMENT INITIATING THE PROCEEDINGS IS SERVED UPON THE DEFENDANT . IN BELGIUM THE COURT IS SEISED WHEN THE ACTION IS REGISTERED ON ITS GENERAL ROLL , SUCH REGISTRATION IMPLYING IN PRINCIPLE PRIOR SERVICE OF THE WRIT OF SUMMONS ON THE DEFENDANT .
12 IN THE FEDERAL REPUBLIC OF GERMANY THE ACTION IS BROUGHT , ACCORDING TO PARAGRAPH 253 ( 1 ) OF THE ZIVILPROZESSORDNUNG , WHEN THE DOCUMENT INITIATING THE PROCEEDINGS HAS BEEN SERVED ON THE DEFENDANT . SERVICE IS EFFECTED OF ITS OWN MOTION BY THE COURT TO WHICH THE DOCUMENT HAS BEEN SUBMITTED . THE PROCEDURAL STAGE BETWEEN THE LODGING OF THE DOCUMENT AT THE REGISTRY OF THE COURT AND SERVICE IS CALLED ' ' ANHANGIGKEIT ' ' . THE LODGING OF THE DOCUMENT INITIATING THE PROCEEDINGS PLAYS A ROLE AS REGARDS LIMITATION PERIODS AND COMPLIANCE WITH PROCEDURAL TIME-LIMITS BUT IN NO WAY DETERMINES THE MOMENT AT WHICH THE ACTION BECOMES PENDING . IT IS CLEAR FROM THE AFOREMENTIONED PARAGRAPH 253 , READ TOGETHER WITH PARAGRAPH 261 ( 1 ) OF THE     ZIVILPROZESSORDNUNG , THAT AN ACTION BECOMES PENDING ONCE THE DOCUMENT INITIATING THE PROCEEDINGS HAS BEEN SERVED ON THE DEFENDANT .
13 IT FOLLOWS FROM THE COMPARISON OF THE LEGISLATION MENTIONED ABOVE THAT A COMMON CONCEPT OF LIS PENDENS CANNOT BE ARRIVED AT BY A RAPPROCHEMENT OF THE VARIOUS RELEVANT NATIONAL PROVISIONS . A FORTIORI , THEREFORE , IT IS NOT POSSIBLE TO EXTEND TO ALL THE CONTRACTING PARTIES , AS IS PROPOSED BY THE PLAINTIFF IN THE MAIN ACTION , A CONCEPT WHICH IS PECULIAR TO GERMAN LAW AND WHICH , BECAUSE OF ITS CHARACTERISTICS , CANNOT BE TRANSPOSED TO THE OTHER LEGAL SYSTEMS CONCERNED .
14 IT MAY PROPERLY BE INFERRED FROM ARTICLE 21 , READ AS A WHOLE , THAT A COURT ' S OBLIGATION TO DECLINE JURISDICTION IN FAVOUR OF ANOTHER COURT ONLY COMES INTO EXISTENCE IF IT IS ESTABLISHED THAT PROCEEDINGS HAVE BEEN DEFINITIVELY BROUGHT BEFORE A COURT IN ANOTHER STATE INVOLVING THE SAME CAUSE OF ACTION AND BETWEEN THE SAME PARTIES . BEYOND THAT , ARTICLE 21 GIVES NO INDICATION OF THE NATURE OF THE PROCEDURAL FORMALITIES WHICH MUST BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF CONSIDERING WHETHER OR NOT TO RECOGNIZE THE EXISTENCE OF SUCH AN EFFECT . IN PARTICULAR , IT GIVES NO INDICATION AS TO THE ANSWER TO THE QUESTION WHETHER A LIS PENDENS COMES INTO BEING UPON THE RECEIPT BY A COURT OF AN APPLICATION OR UPON SERVICE OR NOTIFICAITON OF THAT APPLICATION ON OR TO THE PARTY CONCERNED .
15 SINCE THE OBJECT OF THE CONVENTION IS NOT TO UNIFY THOSE FORMALITIES , WHICH ARE CLOSELY LINKED TO THE ORGANIZATION OF JUDICIAL PROCEDURE IN THE VARIOUS STATES , THE QUESTION AS TO THE MOMENT AT WHICH THE CONDITIONS FOR DEFINITIVE SEISIN FOR THE PURPOSES OF ARTICLE 21 ARE MET MUST BE APPRAISED AND RESOLVED , IN THE CASE OF EACH COURT , ACCORDING TO THE RULES OF ITS OWN NATIONAL LAW . THAT METHOD ALLOWS EACH COURT TO ESTABLISH WITH A SUFFICIENT DEGREE OF CERTAINTY , BY REFERENCE TO ITS OWN NATIONAL LAW , AS REGARDS ITSELF , AND BY REFERENCE TO THE NATIONAL LAW OF ANY OTHER COURT WHICH HAS BEEN SEISED , AS REGARDS THAT COURT , THE ORDER OR PRIORITY IN TIME OF SEVERAL ACTIONS BROUGHT WITHIN THE CONDITIONS LAID DOWN BY THE CONVENTION .