European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The development that the procedural system of lis pendens has experienced since the adoption of the initial provisions of the Brussels Convention  raises difficulties of application of transitory law . In case of lis pendens, Article 29 of Regulation No 1215/2012 now provides that (i) any court other than the court first seized shall of its own motion stay its proceedings until such time as the ju …

Treatment of exception of lis pendens

The development that the procedural system of lis pendens has experienced since the adoption of the initial provisions of the Brussels Convention  raises difficulties of application of transitory law . In case of lis pendens, Article 29 of Regulation No 1215/2012 now provides that (i) any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established; (ii) where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favor of that court. 

It cannot be derogated from the obligation on the court second seized to stay proceedings until the court first seized has declared that it has no jurisdiction, without undermining the principle of mutual trust and legal certainty on which the regulation relies . The obligation to stay proceedings can be set aside neither on the ground that the duration of proceedings before the courts of the Member State in which the court first seized is established is excessively long, nor in case of abuse of procedure . Furthermore, Article 29 sets forth that the declination of jurisdiction must be in favor of the court first seized where actions come within the exclusive jurisdiction of several courts. 

Under Regulation No 44/2001, the court first seized, which had a duty to verify the existence of a clause conferring jurisdiction, had to declare that it has no jurisdiction in favor of the court second seized where the latter has exclusive jurisdiction pursuant to a prorogation by contract . Article 31 of Regulation No 1215/2012 now provides that where a court of a Member State on which an agreement confers exclusive jurisdiction is second seized, any court of another Member State must stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement (Art. 31(2)). Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State must decline jurisdiction in favor of that court (Art. 31(3)). Paragraphs 2 and 3 do not apply to matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the claimant and the agreement is not valid under a provision contained within those sections (Art. 31(4)).

The Brussels Convention provided before the adoption of the San Sebastian Convention that, in case of lis pendens, the court second seized was to decline jurisdiction in favor of the court first seized, since the court second seized was authorized to stay its proceedings only if the jurisdiction of the first court was challenged. Once amended, Article 21 of the Convention imposed on the court second seized to stay its proceedings until such time as the jurisdiction of the court first seized was established; then, the court second seized declined jurisdiction in favor of the first court. Regulations No 44/2001 and No 1215-2012 fully repeat those provisions. 

Article 66(1) of the regulation provides in this respect that the regulation applies to legal proceedings instituted and to authentic documents formally drawn up or registered after the entry into force thereof, which means, a contrario, that the Brussels Convention and the subsequent accession conventions remain applicable to actions initiated before that date, following their date of entry into force and that of instituting of the proceedings. For an example of difficulties of application of transitory law, see Case C-163/95 von Horn v Cinnamond [1997] ECR I-5451, LawLex200900000645JBJ: where proceedings involving the same subject-matter and the same cause of action and between the same parties are pending in two different Contracting States, the first proceedings having been brought before the date of entry into force of the Brussels Convention as amended by San Sebastian Convention and the second proceedings after that date, the court second seized must stay proceedings under the provisions of the amended Brussels Convention only if the court first seized has assumed jurisdiction on the basis of a rule which accords with the Brussels Convention or an accession convention which was in force when the proceedings were instituted. On the other hand, if such is not the case, the court second seized must disapply Article [27 of the regulation] and continue with the proceedings. Lastly, where the court first seized has not yet ruled on whether it has jurisdiction, the court second seized may apply provisionally the provisions of Article [27] - thus stay its proceedings -, it being understood that the proceedings may later be resumed before the court second seized if the court first seized declines jurisdiction or the rule on which it has founded its jurisdiction does not accord with the Brussels Convention or the accession convention which was in force when the proceedings were instituted. 

Case C-116/02 Gasser [2003] ECR I-14693, LawLex200900000400JBJ: setting aside the application of the rules of lis penden in cases where the court first seized belongs to a Member State in whose courts there are, in general, excessive delays in dealing with cases would be manifestly contrary both to the letter and spirit and to the aim of the regulation, which is to ensure legal certainty by allowing individuals to foresee with sufficient certainty which court will have jurisdiction. Moreover, this undermines the mutual trust which the Member States accord to each other's legal systems and judicial institutions which has enabled a compulsory system of jurisdiction to be established and as a corollary the waiver by those States of the right to apply their internal rules on recognition and enforcement of foreign judgments in favor of a simplified mechanism provided for by the regulation.

Case C-116/02 Gasser [2003] ECR I-14693, LawLex200900000400JBJ. In this case, the Government of the United Kingdom which supported the claimant's application, suggested that the Court of Justice should recognize an exception to the application of Article 27 whereby the court second seized would be entitled to examine the jurisdiction of the court first seized, where: 1) the claimant has brought proceedings in bad faith before a court without jurisdiction for the purpose of blocking proceedings before the courts of another Member State which enjoy jurisdiction under the regulation; 2) the court first seized has not decided the question of its jurisdiction within a reasonable time. Along the same lines, Case C-159/02 Turner [2004] ECR I-3565, LawLex200900000627JBJ.

Case C-116/02 Gasser [2003] ECR I-14693, LawLex200900000400JBJ, issued under the Brussels Convention, amended by the San Sebastian Convention: "it is incumbent on the court first seised to verify the existence of the agreement [conferring jurisdiction] and to decline jurisdiction if it is established, in accordance with Article [23], that the parties actually agreed to designate the court second seised as having exclusive jurisdiction" insofar as "in no case is the court second seised in a better position than the court first seised to determine whether the latter has jurisdiction".

European Business Law

363. Treatment of exception of lis pendens

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363. Treatment of exception of lis pendens

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise