EUPillar OLG München, 16.2.2012

Summary

A company based in Germany brought a claim before the court in Milan (Italy) against I. and M. in which it claimed a declaratory judgment concerning the correct exercising of a pre-emptive right by I. and the validity of a contract concluded between the company and M. After that I. brought an action against M. before the Regional Court Munich for an approval of a registration in the land register. The Regional Court stayed the proceedings; the immediately lodged appeals had to be assessed by the Higher Regional Court. The court also stayed the proceedings in order to obtain a preliminary ruling by the CJEU concerning the questions: Does Art. 27 Brussels I include the case that two parties in one litigation are defendants because they are both sued by a third party and in another litigation are defendant and plaintiff? Is that a litigation ‘between the same parties’ as in Art. 27 (1) Brussels I? Is there ‘the same cause of action’ as in Art. 27 (1) Brussels I when the statements of claim in both proceedings are different but (1) for the decision there has to be solved the same preliminary question or (2) in one proceeding there’s a claim for a declaratory judgment that plays a role as a preliminary question in the other proceeding? Is there an action concerning ‘rights in rem in immovable property’ as in Art. 22 (1) Brussels I when there is required a declaratory judgment concerning the fact that the defendant didn’t exercise the pre-emptive right correctly? Does the later seised court have to examine whether the earlier seised court doesn’t have international jurisdiction because of Art. 22 (1) Brussels I because in that case a judgment by the first seised court would pursuant to Art. 35 Brussels I not be recognized? Is Art. 27 (1) Brussels I inapplicable for the later seised court if the court comes to the conclusion that the first seised court doesn’t have the international jurisdiction because of Art. 22 (1) Brussels I? Is the later seised court obliged to examine whether one party acted abusively by seising another court if the other party claims this action as an abuse? Is Art. 27 (1) Brussels I inapplicable for the later seised court when this court comes to the conclusion that the seising of the first seised court has been abusive? Does the application of Art. 28 (1) Brussels I require that the later seised court has had decided before that in the present case Art. 27 (1) Brussels I is inapplicable? Does under application and interpretation of Art. 27 Brussels I and following the second plaintiff’s right to access to justice have to be considered? The CJEU answered the questions in C-438/12 (3/4/2014): Article 22(1) Brussels I must be interpreted as meaning that there falls within the category of proceedings which have as their object ‘rights in rem in immovable property’ within the meaning of that provision an action such as that brought in the present case before the courts of another Member State, seeking a declaration of invalidity of the exercise of a right of pre-emption attaching to that property and which produces effects with respect to all the parties. Article 27(1) Brussels I must be interpreted as meaning that, before staying its proceedings in accordance with that provision, the court second seised is required to examine whether, by reason of a failure to take into consideration the exclusive jurisdiction laid down in Article 22(1) thereof, the decision of the court first seised will be recognised in the other Member States in accordance with Article 35(1) of that regulation.