Mærsk Olie & Gas A/S v Firma M. de Haan en W. de Boer.
Date: 2004-10-14
31. It should be borne in mind at the outset that Article 21 of the Brussels Convention, together with Article 22 on related actions, is contained in Section 8 of Title II of that Convention, which 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, so far as possible and from the outset, the possibility of a situation arising such as that referred to in Article 27(3) of the Convention, that is to say, the non-recognition of a judgment on account of its irreconcilability with a judgment given in proceedings between the same parties in the State in which recognition is sought (see Case 144/86 Gubisch Maschinenfabrik  [1987] ECR 4861, paragraph 8, and Case C-116/02 Gasser  [2003] ECR I-0000, paragraph 41).
32. It follows that, in order to achieve those aims, Article 21 must be interpreted broadly so as to cover, in principle, all situations of lis pendens  before courts in Contracting States, irrespective of the parties’ domicile (Case C-351/89 Overseas Union Insurance and Others  [1991] ECR I-3317, paragraph 16, and Gasser , cited above, paragraph 41).
36. The fact that, in proceedings for the establishment of a liability limitation fund, the claims are verified by an administrator or may also be challenged by the debtor is not such as to cast doubt on that analysis. As the Court has already ruled, in order to determine whether two sets of proceedings have the same subject-matter under Article 21 of the Brussels Convention, account should be taken, as is evident from the wording of that article, only of the applicants’ respective claims in each of the sets of proceedings, and not of the defence which may be raised by a defendant (Case C-111/01 Gantner Electronic  [2003] ECR I‑4207, paragraph 26).
38. As the ‘cause of action’ comprises the facts and the legal rule invoked as the basis for the application (see Case C-406/92 The Tatry [1994] ECR I-5439, paragraph 39), the unavoidable conclusion is that, even if it be assumed that the facts underlying the two sets of proceedings are identical, the legal rule which forms the basis of each of those applications is different, as has been pointed out by Mærsk, the Commission and the Advocate General at point 41 of his Opinion. The action for damages is based on the law governing non-contractual liability, whereas the application for the establishment of a liability limitation fund is based on the 1957 Convention and on the Netherlands legislation which gives effect to it.
45. As the Court has already ruled (see Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 17), in order to be a ‘judgment’ for the purposes of the Convention the decision in question must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties.
46. As is pointed out in the Report on the Brussels Convention (OJ 1979 C 59, p. 71, point 184), Article 25 of that Convention is not limited to decisions which terminate a dispute in whole or in part, but also applies to provisional or interlocutory decisions.
50. While it is true that, according to settled case-law, the Convention is concerned essentially with judicial decisions which, before their recognition and enforcement are sought in a State other than the State of origin, have been, or have been capable of being, the subject in that State of origin, and under various procedures, of an inquiry in contested proceedings (Case 125/79 Denilauler [1980] ECR 1553, paragraph 13), it must be stated clearly that, even if it was taken at the conclusion of an initial phase of the proceedings in which both parties were not heard, the order of the Netherlands court could have been the subject of submissions by both parties before the issue of its recognition or its enforcement pursuant to the Convention came to be addressed (see also, along these lines, Case C-474/93 Hengst Import [1995] ECR I-2113, paragraph 14).
55. According to settled case-law, the purpose of Article 27(2) of the Convention is to ensure that a judgment will not be recognised or enforced under the Convention if the defendant has not had an opportunity to put his defence before the court which gave the judgment (Case 166/80 Klomps [1981] ECR 1593, paragraph 9, Case C‑172/91 Sonntag  [1993] ECR I-1963, paragraph 38, and Hengst Import , cited above, paragraph 17).
56. It follows that non-recognition of a judgment for the reasons set out in Article 27(2) of the Brussels Convention is possible only where the defendant was in default of appearance in the original proceedings. That provision cannot therefore be relied on where the defendant appeared, at least if he was notified of the elements of the claim and had the opportunity to arrange for his defence ( Sonntag , cited above, paragraph 39).
61. It is for the court in which enforcement is sought to determine whether notification was effected in the due and proper form and in sufficient time to enable the defendant to arrange its defence effectively, account being taken of all the circumstances of the case ( Klomps , cited above, paragraph 20, and Case 49/84 Debaecker and Plouvier  [1985] ECR 1779, paragraph 31).