Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV.
Date: 2003-05-08
20.  The Oberster Gerichtshof is, however, unsure whether, taking account of the relevant case-law of the Court (see Case 144/86   Gubisch Maschinenfabrik   [1987] ECR 4861, paragraphs 16 to 18, and Case C-406/92   The Tatry   [1994] ECR I-5439, paragraphs 30 to 34), there any grounds for holding that the requirements for   lis pendens   have been met in this case.
25.  In that regard it must be observed, first of all, that according to its wording Article 21 of the Convention applies where two actions are between the same parties and involve the same subject-matter (see   Gubisch   Maschinenfabrik  , cited above, paragraph 14).  Furthermore, the subject-matter of the dispute for the purpose of that provision means the end the action has in view (The Tatry  , cited above, paragraph 41).
26.  It thus appears from the wording of Article 21 of the Convention that it refers only to the applicants' respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant.
27.   Next, it follows from Case 129/83   Zelger   v   Salinitri   [1984] ECR 2397, paragraphs 10 to 15, that, in so far as the substantive conditions laid down in paragraph 25 of the present judgment are met,   lis  pendens   exists from the moment when two courts of different Contracting States are definitively seised of an action, that is to say, before the defendants have been able to put forward their arguments.
28.  Although it is not applicable   ratione temporis   to the case in the main proceedings, Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) confirms that interpretation.
30.  Finally, the objective and automatic character of the   lis   pendens   mechanism should be stressed.  As the United Kingdom Government correctly points out, Article 21 of the Convention adopts a simple method to determine, at the outset of proceedings, which of the courts seised will ultimately hear and determine the dispute.  The court second seised is required, of its own motion, to stay its proceedings until the jurisdiction of the court first seised is established.  Once that has been established, it must decline jurisdiction in favour of the court first seised.  The purpose of Article 21 of the Convention would be frustrated if the content and nature of the claims could be modified by arguments necessarily submitted at a later date by the defendant. Apart from delays and expense, such a solution could have the result that a court initially designated as having jurisdiction under that article would subsequently have to decline to hear the case.
34.  As a preliminary point, it must be recalled that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts established by Article 234 EC, it is solely for the national court before which a 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.  Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see,inter alia  , Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59, Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 38, and Case C-390/99   Canal Satélite Digital   [2002] ECR I-607, paragraph 18).
35.  However, the Court has also held that, in exceptional circumstances, it can examine the conditions in which a case has been referred to it by the national court, in order to assess whether it has jurisdiction (PreussenElektra  , cited above, paragraph 39, and   Canal Satélite Digital  , cited above, paragraph 19).  The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court, for its part, to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see   Bosman  , cited above, paragraph 60, and Case C-451/99   Cura Anlagen   [2002] ECR I-3193, paragraph 26).
36.  It is therefore possible that there will be a refusal to rule on a question referred by a national court for a preliminary ruling where,   inter alia  , the problem is hypothetical or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, for example,   PreussenElektra  , paragraph 39, and   Canal Satélite Digital  , paragraph 19).
37.  In order to enable the Court to provide a useful interpretation of Community law, it is appropriate that, before making the reference to the Court, the national court should establish the facts of the case and settle the questions of purely national law (see Joined Cases 36/80 and 71/80   Irish Creamery Milk Suppliers Association   [1981] ECR 735, paragraph 6).  By the same token, it is essential for the national court to explain why it considers that a reply to its questions is necessary to enable it to give judgment (see  Joined Cases 98/85, 162/85 and 258/85   Bertini and Others   [1986] ECR 1885, paragraph 6, and Case C-343/90   Lourenço Dias   [1992] ECR I-4673, paragraph 19).
38.  That case-law may be transposed to orders for preliminary reference provided for by the Protocol (see, to that effect, Case C-220/95   Van den Boogaard   [1997] ECR I-1147, paragraph 16; Case C-295/95   Farrell   [1997] ECR I-1683, paragraph 11; and Case C-159/97   Castelletti   [1999] ECR I-1597, paragraph 14).