## Facts

- A German machinery supplier and an Italian buyer disputed an international sales contract for machinery.
- The supplier filed suit in Germany seeking performance of the contract, principally payment of the price.
- The buyer later filed suit in Italy seeking a declaration that no valid contract existed or, alternatively, rescission/discharge of the contract (including claims tied to consent or performance issues such as late delivery).
- The supplier argued in the Italian proceedings that the Italian court was second seised and had to stay and then decline jurisdiction under Article 21 of the 1968 Brussels Convention (lis pendens).
- The Italian courts rejected the lis pendens objection, and the Italian Supreme Court of Cassation referred a question to the European Court of Justice on the interpretation of Article 21.

## Issues

1. Whether the terms in Article 21 of the Brussels Convention (including “same cause of action” and “same subject-matter”) have an autonomous, Convention-wide meaning rather than meaning supplied by national law.
2. Whether Article 21 applies when one proceeding seeks enforcement of a contract and the other seeks rescission/discharge or a declaration of non-existence of that same contract between the same parties.

## Decision

- The court held that the concepts used in Article 21 to determine lis pendens must be interpreted autonomously, independent of national law.
- The court held that lis pendens exists where one party sues in one Contracting State for rescission/discharge (or equivalent declaratory relief) while the other party’s action to enforce the same contract is pending in another Contracting State.
- Accordingly, the court second seised must stay its proceedings of its own motion until the first court’s jurisdiction is established and, once established, must decline jurisdiction.

## Legal Principles

- Article 21’s criteria for lis pendens (“same parties,” “same cause of action,” and “same subject-matter”) are Convention concepts requiring uniform interpretation across Contracting States.
- Actions seeking contract enforcement and actions seeking rescission/discharge (or a declaration that no contract exists) can constitute the same cause of action and subject-matter when they concern the same contractual relationship and hinge on the same essential factual and legal questions.
- Article 21 is applied functionally to prevent parallel proceedings and irreconcilable judgments, including the risk that one court treats a contract as ineffective while another orders its performance.
- When Article 21 applies, the second-seised court has a mandatory duty to stay proceedings on its own motion and later decline jurisdiction once the first-seised court’s jurisdiction is confirmed.

## Conclusion

The court interpreted Article 21 of the Brussels Convention to require an autonomous, uniform lis pendens rule and held that competing suits to enforce and to rescind/discharge the same international sales contract between the same parties trigger the stay-and-decline mechanism for the court second seised.


Gubisch Maschinenfabrik KG v. Palumbo, Case 144/86, [1987] E.C.R. 4861 (E.C.J. 1987)