C-241/83

RÖSLER / ROTTWINKEL

JUDGMENT OF THE COURT (Fourth Chamber) 15 January 1985 *

In Case 241/83

REFERENCE to the Court under the Protocol of 3 June 1973 to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Bundesgerichtshof [Federal Court of Justice] for a preliminary ruling in the action pending before that court between

Erich Rosier, Berlin,

and

* Language of the Case: German.

JUDGMENT OF 15. 1. 1985 — CASE 241/83

JUDGMENT

Facts and Issues

The facts of the case, the course of the Furthermore, the defendant's behaviour procedure and the written observations provoked repeated arguments between the submitted pursuant to Article 20 of the parties at the holiday resort. The plaintiff Protocol on the Statute of the Court of claimed that his and his family's rest and Justice of the EEC may be summarized as quiet had been considerably disturbed. He follows : claimed damages from the defendant for loss of holiday enjoyment, founding his claim on a breach of the lease, and reimbursement of the costs of travelling to 1. Facts and written procedure the holiday resort which he needlessly incurred. He also claimed under the terms of the lease payment of incidental charges in By a written agreement dated 19 January respect of gas, electricity and water and for 1980 the plaintiff in the main proceedings cleaning at the end of the letting. let a flat in his holiday villa at Cannobio in Italy to the defendant in the main proceedings for the period 12 July to 2 August 1980. The rent agreed for four The Landgericht Berlin dismissed the action persons was DM 2 625. By the terms of the as inadmissible on the ground that, agreement visitors were not allowed to stay according to Article 16 (1) of the Con­ overnight. The extra costs of gas, water and vention of 27 September 1968 on electricity had to be calculated according to Jurisdiction and the Enforcement of the quantities consumed and there was also Judgments in Civil and Commercial matters an extra charge for cleaning at the end of (hereinafter referred to as 'the Convention') the letting. The parties further agreed that the courts of Italy had exclusive jurisdiction the agreement was to be governed by to entertain the plaintiff's claims. German law.

The defendant appealed on a point of law In the grounds of its order for reference the against the judgment of the Kammergericht Bundesgerichtshof argues as follows: to the Bundesgerichtshof [Federal Court of Justice] which by order of 5 October 1983 decided to submit the following questions to the Court of Justice for a preliminary The conditions in which the Italian courts ruling: would have jurisdiction under Article 16 (1) of the Convention are not satisfied. Although the provision does not distinguish in terms between leases of long duration and agreements for the short letting of holiday 'In accordance with Article 3 of the homes, it would be in the interests of Protocol of 3 June 1971 on the interpret­ expediency for the provision not to apply at ation of the Convention of 27 September least in cases where the lease concerns only 1968 on Jurisdiction and the Enforcement a very short letting of a holiday home, both of Judgments in Civil and Commercial parties ordinarily reside in a country other Matters (Bundesgesetzblatt II 1972, p. 773) than that in which the property is located and Article 2 of the German Law of 7 and they have agreed that the substantive August 1972 (Bundesgesetzblatt II 1972, p. law of their State of residence is to apply. 845) the following questions shall be Dicta of the Court of Justice in its judgment submitted to the Court of Justice of the of 14 December 1977 in Case 73/77, European Communities in Luxembourg for Sanders v van der Putte, [1977] ECR 2383 a preliminary ruling: also support a restrictive interpretation, for the Court there held that the provisions of Article 16 of the Convention must not be given a wider interpretation than their purpose requires since the effect of conferring exclusive jurisdiction under that (1) Is Article 16 (1) of the Convention provision is to deprive the parties of the applicable if a lease concluded between choice of forum which they would persons resident in the Federal Republic otherwise have and to require them in such of Germany is for the short letting only cases to appear before a court which is not of a holiday home located in Italy and that of the domicile of any of them. the parties to the lease have agreed that German law is to apply?

Upon hearing the report of the Judge- Even if it must be assumed that in principle Rapporteur and the views of the Advocate Article 16 (1) of the Convention applies to General the Court decided to open the oral leases of holiday homes, the Bundes­ procedure without any preparatory enquiry. gerichtshof is inclined to the view that inter­ national jurisdiction under Article 16 (1) should be conferred only in respect of By order of 30 May 1984 the Court claims arising from the lease that are assigned the case to the Fourth Chamber directly related to the rented property. pursuant to Article 95 (1) and (2) of the Despite the clear difficulties of Rules of Procedure. distinguishing between claims and although the Bundesgerichtshof is aware of the danger of splitting jurisdiction to entertain claims, it must accord with the purpose of 2. Written observations Article 16 (1) not to confer jurisdiction under the provision in respect of every claim which may arise under a lease, but to The plaintiff in the main proceedings submits distinguish between them. Accordingly, that Article 16 (1) of the Convention is not Article 16 (1) of the Convention ought not applicable in this case. The agreement in to apply to the claim for the payment of question is for the short letting of a holiday incidental charges (cleaning, gas, electricity home which, on an economic view, is more and water) or a fortiori to claims for akin to a lodging 'agreement than to a lease damages for a spoiled holiday and in the proper meaning of the word. unnecessarily incurred travel expenses as the latter have no real connection with the rented property. Even in so far as The claims involved are primarily for compensation is claimed for damaged compensation for the loss of holiday articles listed in the inventory, the rented enjoyment and for damage to, or loss of, property itself is not affected. movable property. Furthermore the place of performance is in the Federal Republic of Germany. In particular, monies due, In accordance with Article 5 (1) of the including the rent, had to be paid in the Protocol of 3 June 1971 and Article 20 of Federal Republic of Germany and the keys the Protocol on the Statute of the Court of also had to be returned there. All the Justice of the European Economic witnesses named are German nationals and Community, written observations were must be examined in Germany if the submitted by the plaintiff in the main unnecessary costs of travelling to Italy are proceedings, represented by Günter to be avoided. The court need not have any Groppel, Rechtsanwalt, Bielefeld, the special local knowledge. A court inspection Government of the Federal Republic of of the premises is out of the question.

(a) In its judgment of 14 December 1977 in The spirit of Article 16 (1) of the Case 73/77, Sanders v van der Putte, Convention does not therefore require [1977] ECR 2383 the Court held that letting of holiday homes to be assigned to Article 16(1) must be construed narrowly the exclusive jurisdiction of the courts of the since the parties have no choice of place where they are situated. Consequently, forum: it must not be given a wider the provision must be interpreted to the interpretation than its objective requires; effect that short-term lettings of holiday homes must not be considered 'tenancies' (b) The ratio legis of Article 16 (1) is that ten­ within the meaning of Article 16 (1). ancies of immovable property, especially of dwellings, are generally governed by complex legislation which is strongly influenced by social considerations best As regards Article 16, the Schlosser Report applied by the courts of the country in expressly states that: 'However, the which it is in force. underlying principle of the provision quite clearly does not require its application to short-term agreements for use and occupation such as, for example, holiday The inexpediency of applying Article 16 (1) accommodation' (Official Journal 1979 of the Convention to the letting of holiday C 59, p. 120). homes becomes particularly clear if the parties have made their contract subject exclusively to German law as in this case. That choice of governing law would also That result also meets considerations of have to be respected by the Italian courts. expediency in cases where the parties are They would therefore have to examine the both resident in Germany and the rented facts solely with regard to German sub­ holiday home is situated abroad. Instructing stantive law. As a result, the purpose of foreign lawyers, appearing before a distant conferring jurisdiction on the courts of the foreign court and arranging for the place where the property is situated, which costly translation of correspondence is is to make the mandatory provisions of the unnecessary. law of that place applicable by making the forum and applicable law coincide and generally to simplify the proceedings, is irrelevant in this case; on the contrary, the The German Government concludes that proceedings would be made unnecessarily the first question must be answered in the more difficult. negative.

According to Article 16 (1), exclusive part by customary practices which are not jurisdiction is to be assigned in proceedings generally known except in the courts of the 'which have as their object... tenancies of place, or possibly of the country, where the immovable property'.. Since the provision immovable property is situated'. must be interpreted restrictively, only proceedings involving claims directly related to the rented property itself, such as, for example, disputes about the existence of a As regards tenancies of immovable property lease, giving up possession or compensation in particular, the report goes on to state that for damage caused to the property, fall these 'will include tenancies of dwellings thereunder. In the view of the draftsmen of and of premises for professional or the Convention set forth in the Jenard commercial use, and agricultural holdings' Report (Official Journal 1979 C 59, p. 1), and that disputes relating to them will there will be no exclusive jurisdiction in mainly be 'disputes between landlord and proceedings for the recovery of rent since tenant over the existence or interpretation they must be regarded as relating to a of leases, compensation for damage caused subject-matter which is quite distinct from by the tenant, eviction, etc.' whereas the the rented property itself. That view must rule does not apply to proceedings apply a fortiori to proceedings for concerned only with the recovery of rent, compensation for indirect damage arising since such proceedings can be considered to from a breach of the lease by one party and relate to a subject-matter which is quite not related to the rented property itself. distinct from the rented property itself. The Therefore, the plaintiff's claims for report concludes that the adoption of the compensation for lost holiday enjoyment provision was dictated by the fact that and unnecessarily incurred travel expenses tenancies of immovable property are often do not fall under Article 16 (1). governed in the various States by special legislation which often provides for exclusive jurisdiction.

None of the facts mentioned by the national On the second question the Italian court indicate that Article 16 (1) should not Government submits that the incidental be applied. The fact that it was agreed to let charges relating to the letting are a charge immovable property for holiday to be borne by the lessee and should accommodation is undoubtedly irrelevant. therefore be ascribed to the lease itself. A Article 16 (1) does not distinguish between dispute over such costs must clearly fall short-term and long-term tenancies or within the exclusive jurisdiction conferred between the different uses to which the by Article 16 (1). property is put: it may be used for pro­ fessional, commercial or agricultural purposes, as a dwelling, for holidays and so forth. Although some requirements, particu­ larly rules of public policy, may govern only some situations and not others, any As regards the claim for damages, a generalized limitation would be arbitrary distinction might be drawn between actions and, since it could not be defined in precise for damages accompanied by a claim for terms, might easily be used to evade performance or rescission, in which case mandatory rules. Article 16 (1) appears to be operative, and actions for damages in which the non-per­ formance of the contract is an historical fact to be established only as an incidental matter (such might be the case with the claim of the lessee in this case for the payment of travel and other expenses on The fact that neither contracting party account of lost holiday enjoyment), in resides in Italy seems immaterial. It is which case there might be some doubt as to sufficient to consider that the Convention whether Article 16 (1) applies since, as the presupposes the existence of a Community Jenard Report points out, 'the matters territory and that precisely by providing for referred to in this article will normally be exclusive jurisdiction and thus ruling out the subject of exclusive jurisdiction only if any derogation by agreement between the they constitute the principal subject-matter parties, Article 16 (1) seeks to guarantee of the proceedings of which the court is to be seised'. 'the proper administration of justice' so that the parties' place of residence must be quite immaterial.

The plaintiff is not making any claim for sought is the payment of sums of money by rent but is claiming damages for breaches of way of compensation, rather than, for the lease and consequential loss flowing example, an order of the court to give or therefrom. Claims for rent appear generally surrender possession of premises. In the to have a closer connection with the rented submission of the United Kingdom, the property than the claims made in this case German court is as well, if not better, by the plaintiff. placed to provide a remedy as the Italian

enforced. In such cases it does seem appro tenant and to the giving up of possession of priate to apply the traditional principle of premises as being particular instances of actor sequiturforum rei. disputes in which jurisdiction is exclusively assigned to the courts of the State in which the immovable property is situated. Those disputes may require inquiries and expert assessments which must be carried out on the spot and frequently involve the The claims made by the plaintiff do not application of complex special rules. As the appear to have a close connection with the Court explained, the assignment of exclusive rented property but consist of a claim for jurisdiction in those cases satisfies the need compensation for loss of holiday enjoyment for the proper administration of justice. In which is entirely distinct from the rented the view of the United Kingdom, that need property. Such a claim might also lie in the does not require claims such as those in this general law relating to liability for tort or case for breach of terms of a lease and for delict. The question of the extent of the consequential loss to be assigned to the defendant's liability to make compensation exclusive jurisdiction of the courts of the is a problem of the general law of State in which the property is situated. obligations and is not specific to leases of immovable property.

Those claims may applied for. In the present case, the remedy also be characterized as purely contractual

The United Kingdom therefore supports the Secondly, the terms of Article 16 (1) show view expressed by the Bundesgerichtshof that it applies in respect of particular that the plaintiff's claim for compensation proceedings, and not in respect of particular for the loss of, or damage to, articles listed rights in rem or tenancies. The terms of in the inventory does not affect the rented Article 16 (1) do not suggest that any property. Such claims could arise from any distinction is to be drawn between tenancies form of agreement permitting the use or of varying durations or between tenancies occupation of immovable property and do for particular purposes. not depend on the existence of an agreement giving possession of the immovable property in which those articles are found. Such claims ought not, therefore, to be regarded as disputes which have as There does not seem to be any point at their object tenancies of immovable property which a short-term agreement becomes for the purposes of Article 16 (1) of the readily distinguishable from an agreement Convention. of a longer duration. In the present case, for example, there would not appear to be any distinction in principle between a lease for a period of three weeks and a lease for two The United Kingdom concludes that for months or longer. It appears equally Article 16 (1) to apply, the objective of the difficult to draw a distinction, for the proceedings must be the determination, purposes of Article 16 (1), between leases enforcement or giving effect to, or the for different purposes such as holiday termination of, rights of possession. lettings, or leases of business premises. Accordingly, the answer to the second question referred by the Bundesgerichtshof should be that Article 16 (1) does not apply to actions for damages for breach of the The Schlosser Report on the Accession lease, for compensation for lost holiday Convention of 9 October 1978 also enjoyment or for recovery of incidental emphasizes that it is the type of proceedings charges payable under the lease. rather than the nature of the tenancy or other real property right which should determine the scope of Article 16 (1) (see If the Court accepts the submission of the paragraphs 163 and 164 of the Report). United Kingdom in respect of the second question, the Court may consider it unnecessary to answer the first question. The United Kingdom submits that the reason why Article 16 (1) may not apply to However, in the event that the Court does short-term lettings of holiday accom­ consider it necessary to answer the first modation is not because of the character of question, the United Kingdom makes the the letting but rather because of the nature following observations. of the proceedings. In most cases, disputes relating to the use and occupation of such premises will be matters of the law of First, the fact that the parties are domiciled obligations rather than matters concerning in Germany is irrelevant since Article 16 rights in immovable property.

During the discussions which took place within the Council working party on the The parties' choice of law should not be a accession of Denmark, Ireland and the determining factor in ascertaining the scope United Kingdom to the Convention the of Article 16 (1). It is clear from the express question of restricting exclusive jurisdiction terms of Article 17 (2) of the Convention under Article 16 (1) in cases concerning that an agreement conferring jurisdiction on leases was again examined. The United a particular court is to have no legal force if Kingdom delegation proposed an it purports to exclude the jurisdiction of a amendment whereby in disputes relating to court having exclusive jurisdiction by virtue personal obligations arising from tenancies of Article 16. If the choice of law were to of immovable property jurisdiction under determine the scope of Article 16 (1), the Article 16 (1) would not be exclusive; that result might be that the courts of the place non-exclusive jurisdiction would apply in where the property was situated might be particular to actions for the payment of rent deprived of jurisdiction in cases where it and to actions concerning short-term was most appropriate, in the interests of the agreements for use and occupation such as, administration of justice, that they should for example, lettings of holiday flats or have jurisdiction. homes abroad. The majority of the other delegations did not agree with that proposal. The working party finally agreed Moreover, it must be open to doubt to leave Article 16 (1) unchanged. whether the choice by the parties of a foreign law to govern their lease would in all cases be effective to exclude the operation of the law of the country in which the property is situated, since in many cases The Commission considers that the wording the rules of law of Contracting States of Article 16 (1) provides no ground for concerning leases cannot be derogated from excluding short-term leases of immovable by contract. property from its scope.

In the present case it is beyond dispute that Provisions of that kind apply in all the the rented property in Italy is 'immovable Member States to agreements for the property' within the meaning of Article permanent use and occupation of 16 (1) but it may be doubtful whether the immovable property, especially living claim made in the main proceedings relates accommodation, agricultural holdings and to a lease. None of the language versions of agricultural buildings, by persons for whom Article 16 (1) make any distinction as to the the leased property is an essential part of duration or type of lease. It is also silent on their livelihood. the question of the domicile of the parties to the lease and on the question of whether they have agreed to the application of a law other than that of the place where the property is situated. That social purpose does not exist in the case of lettings of holiday accommodation. Normally such accommodation comprises not only the fittings usually found in empty rented accommodation but also all interior However, the present case does not simply fittings and equipment such as furniture, involve a lease of short duration, i.e. three curtains, bed linen and other household weeks, but an agreement sui generis for the items. Lettings of holiday accommodation temporary use and occupation of a are often supplemented by agreements on furnished holiday residence. the services to be provided by the lessor, i.e., as in the present case, the cleaning of the premises at the end of the letting and the washing of bed linen, towels and so forth to The Commission is inclined to the view that be provided by the owner. Hence a the assignment of exclusive international fundamental difference between short jurisdiction to the courts of the States in lettings of holiday accommodation and which holiday homes are situated would long-term leases is that the rented property lead to results which would be both unfair is not an essential part of the holiday- and contrary to the ratio legis. maker's livelihood. For those reasons furnished accommodation in general and furnished holiday accommodation in particular are in some Contracting States expressly or implicitly excluded from the The Convention is meant to protect persons scope of special legislation designed to resident in the Community. The provision protect tenants. on international jurisdiction has that purpose as well. Disputes are assigned to the courts which, for procedural and geo­ graphical reasons and owing to their thorough knowledge of the legal rules to be applied in the individual case, are in the best Furthermore, the legislation of some position to decide them. Member States generally provides that leases cannot be relied upon as against third parties, particularly purchasers of leased property, unless they are entered in a public register whereas lettings of holiday Such legal rules include mandatory accommodation do not have to be provisions which must be observed in registered. That effect vis à vis third parties deciding the dispute, regardless of the law of registered leases has caused them to be governing the contract, and which are categorized as rights in rem and brought therefore in the nature of public policy. them within the scope of Article 16 (1).

The Commission observes that the plaintiff's That difficulty of interpretation can be claims are as follows: resolved by considering the spirit of Article 16 (1). It seeks to protect a specific group of persons, namely tenants of immovable property for whom such property forms an First, he is claiming damages for the essential part of their livelihood. defendant's breach of the agreement in accommodating in the premises let more 'than the four persons agreed upon. This The fact that both parties are resident in caused the cesspool to overflow, creating an Germany and not in the Contracting State intolerable smell, and a considerable in which the holiday home is situated is nuisance owing to the noise due in irrelevant, for according to its terms Article particular to the presence of a small child. 16 applies generally, irrespective of the The plaintiff's rest and quiet was parties' 'domicile'. considerably disturbed. The travel costs to and from the holiday resort were therefore needlessly incurred and should therefore be paid by the defendant. The existence of an agreement between the parties regarding the application of the law of the State in which they reside cannot have the effect of depriving the courts of the The question is whether such claims are place in which the holiday home is situated directly related to tenancies of immovable of exclusive jurisdiction either. In such a property for the purposes of Article 16 (1). case those courts ought to have regard to The answer to that question is affirmative as the parties' choice of governing law in so regards claims directly related to tenancies, far as the provisions of local law allow such such as, for example, those concerning the choice and in so far as the public policy of existence or inexistence of a tenancy, the the lex fori does not prohibit the application termination of the tenancy and disputes over of foreign law or require local law to be defects found in or damage caused to the applied. rented property. The first head of claim does not relate to any of those matters but involves disputes admittedly arising from the All things considered the Commission takes use of the rented property in a way contrary the view that the grant of the use and to the agreement but such use did not cause

Decision

1 By order of 5 October 1983, which was received at the Court on 24 October 1983, the Bundesgerichtshof [Federal Court of Justice] referred to the Court for a pre­ liminary ruling under the Protocol of 3 June 1971 to the Convention of 17 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and ' Commercial Matters (hereinafter referred to as 'the Convention ) two questions on the interpretation of Article 16 (1) of that convention.

2 By a written agreement dated 19 January 1980, Horst Rottwinkel, the plaintiff in the main proceedings, let a flat in his holiday villa at Cannobio in Italy to Erich Rosier, the defendant in the main proceedings, for the period from 12 July to 2 August 1980. The rent agreed for four persons was DM 2 625. By the terms of the agreement visitors were not allowed to stay overnight. The incidental charges for gas, water and electricity had to be calculated according to the quantities consumed and there was also an extra charge for cleaning at the end of the letting. The parties further agreed that the agreement was to be governed by German law, that Bielefeld was to be the place of performance and that its courts were to have jurisdiction.

JUDGMENT OF 15. 1. 1985 — CASE 241/83

3 The plaintiff in the main proceedings spent his holiday in the holiday villa at the same time as the defendant.

4 On 7 January 1981 the plaintiff sued the defendant in the Landgericht [Regional Court] Berlin, for damages and for the payment of outstanding incidental charges. He claimed that throughout the holiday the defendant had accommodated more than four persons in the holiday home which caused the cesspool constantly to overflow, creating an intolerable smell, and was a considerable nuisance owing to the noise.

(2) If Article 16 (1) is applicable, does it apply to actions for damages for breach of the lease, particularly for compensation for loss of holiday enjoyment and for the recovery of incidental charges payable under the lease?'

9 The plaintiff submits that Article 16 (1) of the Convention is not applicable to this case. In his view, the agreement in question is for the short letting of a holiday home which, on an economic view, is more akin to a lodging agreement than to a lease in the proper meaning of the word. The claims involved are primarily for compensation for the loss of holiday enjoyment and for damage to, or loss of, movable property. Furthermore, the place of performance is in the Federal Republic of Germany. The agreement provided that monies due, including the rent, had to be paid in the Federal Republic and the keys also had to be returned there. A court inspection of the premises is out of the question as a means oí resolving the dispute.

12 A further aim of Article 16 (1) is that the tenant of a dwelling, who as a general rule is socially in a comparatively weak position, should not be put at any further disadvantage by the fact that the trial takes place before a court far away from his place of residence. That aim is also irrelevant as far as leases of holiday homes are concerned because the lessee does not normally reside at the place where the holiday home is situated or require any special social consideration.

RÖSLER / ROTTWINKEL

those in this case for breach of terms of a lease and for consequential loss, to be assigned to the exclusive jurisdiction of the courts of the State in which the property is situated. Similar arguments apply to the claim by the plaintiff for incidental charges, namely those relating to the consumption of gas, electricity and water and for cleaning. The claims concerning the loss of, or damage to, articles listed in the inventory do not affect the rented property and ought not to be regarded as disputes which have as their object tenancies of immovable property for the purposes of Article 16 (1) of the Convention. For that provision to apply, the objective of the proceedings must be the determination, enforcement or giving effect to, or the termination of, rights of possession.

JUDGMENT OF 15. 1. 1985 — CASE 241/83

17 The Commission states that in some Contracting States furnished accommodation in general and furnished holiday accommodation in particular are expressly or impliedly excluded from the matters covered by special legislation for the protection of tenants. For those reasons it considers that the letting for consideration of furnished accommodation, particularly furnished holiday accommodation, does not come within the scope of application of Article 16 (1).

18 Article 16 of the Convention provides as follows:

'The following courts shall have exclusive jurisdiction, regardless of domicile:

(1) in proceedings which have as their object rights in rem in, or tenancies of, immovable property, the courts of the Contracting State in which the property is situated;

19 The raison d'être of the exclusive jurisdiction conferred by Article 16 (1) on the courts of the Contracting State in which the property is situated is the fact that tenancies are closely bound up with the law of immovable property and with the provisions, generally of a mandatory character, governing its use, such as legislation controlling the level of rents and protecting the rights of tenants, including tenant farmers.

25 The reply to the first question must therefore be that Article 16 (1) of the Convention applies to all lettings of immovable property, even for a short term and even where they relate only to the use and occupation of a holiday home.

26 With regard to the second question, it must be noted that the Convention grants exclusive jurisdiction 'in proceedings which have as their object ... tenancies of immovable property'. In its judgment in Sanders v van der Putte, cited above, the Court considered that that expression covers disputes between landlords and tenants as to the existence or the interpretation of leases or to compensation for damage caused by the tenant. The Court must point out that that list is not exhaustive. The Government of the Italian Republic is right in arguing that disputes concerning the payment of rent fall under that exclusive jurisdiction. It would in fact be contrary to one of the aims of the provision in question, namely the correct application of national legislation on tenancies, to exclude from that exclusive jurisdiction disputes which are, in some Member States at least, governed by special legislation, such as the Italian 'fair rent' legislation.

27 Leases generally contain terms concerning entry into possession by the tenant, the use to which the property is to be put, the obligations of the landlord and tenant regarding the maintenance of the property, the duration of the lease and the giving up of possession to the landlord, the rent and the incidental charges to be paid by the tenant, such as water, gas and electricity charges.

29 The reply to the second question must therefore be that any dispute concerning the existence of tenancies or the interpretation of the terms thereof, their duration, the giving up of possession to the landlord, the repairing of damage caused by the tenant or the recovery of rent and of incidental charges payable by the tenant, such as charges for the consumption of water, gas and electricity, falls within the exclusive jurisdiction conferred by Article 16 (1) of the Convention on the courts of the State in which the property is situated. Disputes concerning the obligations of the landlord or of the tenant under the terms of the tenancy fall within that exclusive jurisdiction. On the other hand, disputes which are only indirectly related to the use of the property let, such as those concerning the loss of holiday enjoyment and travel expenses, do not fall within the exclusive jurisdiction conferred by that article.

Costs

30 The costs incurred by the Government of the Federal Republic of Germany, the Government of the Italian Republic, the United Kingdom, and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fourth Chamber)

in answer to the questions referred to it by the Bundesgerichtshof, by order of 3 October 1983, hereby rules:

P. Heim G. Bosco Registrar President of the Fourth Chamber