Примери за използване на Second seised на Английски и техните преводи на Български
{-}
-
Colloquial
-
Official
-
Medicine
-
Ecclesiastic
-
Ecclesiastic
-
Computer
The information to be considered by the court second seised in the context of the application of Article 27(1) of Regulation No 44/2001.
In other words, it is necessary to take into account the desired legal consequence andthe basis on which the judgment given in the first dispute would have force of res judicata before the court second seised.
Of the fact that, in the assessment of the court second seised, the law of the Member State in which the court second seised is situated is applicable.
Of the fact that the court first seised is situated in a Member State in which proceedings statistically last considerably longer than in the Member State in which the court second seised is situated.
I consider that the court second seised cannot, in this way, be allowed to rule in advance on the outcome of the proceedings before another court.
The effects, as regards any stay of proceedings on grounds of lis pendens, of the exclusive jurisdiction of the court second seised under Article 22(1) of Regulation No 44/2001(fourth question).
The current mechanism is reversed, since the court second seised is, on the contrary, required to stay its proceedings‘until such time as the jurisdiction of the court first seised is established'.
It follows that, in a situation such as that at issue in the main proceedings, if the court first seised gives a judgment which fails to take account of Article 22(1) of Regulation No 44/2001,that judgment cannot be recognised in the Member State in which the court second seised is situated.
Therefore, the only situation examined here is that in which the court second seised intends to stay its proceedings, and not to decline jurisdiction.
Requiring the court second seised which has exclusive jurisdiction to stay its proceedings in such circumstances would simply lead to an absolute waste of time and would therefore not satisfy the requirement for the proper administration of justice.
That is, in my view, the rationale for the obligation imposed on the court second seised to stay its proceedings until the jurisdiction of the court first seised has been established.
Generally, the court second seised cannot be required to consider whether such criteria are fulfilled, since this could require a hearing of all the parties to the dispute which is pending before the court first seised or the gathering of the relevant evidence.
Does the application of Article 28(1) of Regulation No 44/2001 presuppose that the court second seised has previously decided that Article 27 of[that regulation] does not apply in the specific case?
The first of the criteria listed in the order for reference concerns the fact that the court first seised is located in a Member State in which proceedings, statistically speaking,last significantly longer than in the Member State in which the court second seised is located.
Is Article 27(1)of Regulation No 44/2001 not applicable for the court second seised if the court second seised comes to the conclusion that the bringing of proceedings before the court first seised was an abuse of process?
However, as stated in paragraph 47 of the present judgment, and unlike the situation in case which gave rise to the judgment in Gasser,in the present case exclusive jurisdiction has been established in favour of the court second seised pursuant to Article 22(1) of Regulation No 44/2001, which is in Section 6 of Chapter II thereof.
Is Article 27(1)of Regulation No 44/2001 not applicable for the court second seised if the court second seised comes to the conclusion that the court first seised lacks jurisdiction because of Article 22(1) of Regulation No 44/2001?
Given that the court second seised will neither have heard all the claims of the parties in the first proceedings, nor have been given access to the evidence on which they rely, such an approach would be contrary to the principle of proper administration of justice and the fundamental right to a fair hearing.
However, given the wording of that question,(102)I would point out that in my opinion it is not necessary for the court second seised to rule formally, by an express judgment, on the non-application of Article 27 of Regulation No 44/2001 in the case concerned.
The Court concluded therefrom that a court second seised whose jurisdiction has been claimed under an agreement conferring jurisdiction must nevertheless stay proceedings until the court first seised has declared that it has no jurisdiction, in particular on grounds of legal certainty.
In addition, the implementation of the obligation to stay its proceedings under Article 27(1)of Regulation No 44/2001 cannot require the court second seised to acquaint itself with the specific features of the rules of civil law or civil procedure applicable in the Member State of the court first seised. .
Where the court second seised is the only one which has exclusive jurisdiction(45) on the basis of the latter provision, it would, in my opinion, be inappropriate for it to stay the proceedings pending before it, under Article 27(1) of that regulation, pending the decision of the court first seised, since the latter cannot validly declare that it has jurisdiction and therefore rule on the merits of the concurrent proceedings.
However, I consider,like the Commission, that any abuse of process by the applicant who first brought proceedings before the court of another Member State is not an element which the court second seised can, or even must, take into account where there is a situation of lis pendens within the meaning of Article 27 of Regulation No 44/2001.
More specifically, in such a situation the court second seised examines solely the question of its own jurisdiction, which is exclusive in this case, as was pointed out by Advocate General Van Gerven in that case.
Accordingly, I propose that the answer to the sixth question should be that theapplication of Article 28(1) of Regulation No 44/2001 actually presupposes that the court second seised has previously reviewed the criteria for the application of Article 27(1) of that regulation and reached the conclusion that they are not fulfilled in the proceedings pending before it.
The Court is called upon to determine whether, before the court second seised can apply Article 28(1) of Regulation No 44/2001, concerning related actions which are pending before the courts of different Member States, it must have decided that Article 27(1) of that regulation, concerning cases of lis pendens, is not applicable to the case in question.
It is a purely technical provision,(90) the application of which should, in my opinion, raise no issue as regards Article 47 of the Charter,since the parties to the dispute brought before the court second seised benefit by definition, as regards the judicial systems of the Member States, from the right of access to justice and from the guarantee of a fair hearing before the court first seised. .
The second part of the eighth question asks the Court to rule on whether the court second seised may or must take into account the protection of the right of access to justice of the applicant who has brought proceedings before it, in the context of the application of Article 28 of Regulation No 44/2001, and accordingly where the proceedings pending before that court are related to proceedings pending before a court of another Member State.
However, in order not to render ineffective the mechanism provided for in Article 27(1),I consider that such an assertion of its own exclusive jurisdiction by the court second seised, to the detriment of the priority in principle accorded to the court first seised, should be limited to cases in which a reliable assessment can be made as to the issues concerning recognition and enforcement without risk of conflicting judgments.
It is concerned with a situation where the applicant bringing proceedings before the court second seised argues before it that the earlier bringing of proceedings before another court by the defendant(‘the other party' in the words of that question) was abusive, and does so before the latter court has ruled on its own jurisdiction.