C-158/87

soured relations between Mr Scherrens and Mr President, his mother-in-law. She gave the land Members of the Court, situated in the Netherlands to another daughter, Rita A. M. van Poucke, and the donee did not recognize Scherrens' right to lease them as he had done for the previous seven years. 1. This reference for a preliminary ruling is concerned with the interpretation of Article 16 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial In accordance with Article 11 of the Matters (Brussels Convention) which Pachtwet (Agricultural Holdings Law) of 23 provides: 'The following courts shall have January 1958 (Staatsblad 1958, No 37), exclusive jurisdiction, regardless of Scherrens then brought proceedings against domicile: (1) in proceedings which have as his mother-in-law, sister-in-law and wife, their object rights in rem in, or tenancies of, Lucie M. L. van Poucke, before the immovable property, the courts of the Pachtkamer of the Kantongerecht contracting State in which the property is (Cantonal Court), Oostburg, asking that the situated; ... ' . lease agreement be set down in writing (9 December 1982); however, since he failed to prove that the transaction had ever taken place, his application was dismissed by a judgment of 2 May 1985. The facts are as follows. The court making the reference — the Pachtkamer (Chamber dealing with agricultural leases) of the Gerechtshof (Regional Court of Appeal), Arnhem — was called upon to settle a The tenant, however, did not give up. In dispute as to the existence of a lease which parallel with an action brought in Belgium Mr Raphaël O . E. Scherrens claims to have for the refund of part of the rent paid in concluded orally in the winter of 1972/73, respect of the land there, he lodged an as tenant-farmer, with the landlords, who appeal with the Pachtkamer of the later became his parents-in-law, Mr Gerechtshof, Arnhem. There then arose the B. P. J. van Poucke, who died on 8 question on which this Court is requested to November 1973, and Maria G. Maenhout. rule. In Scherrens' view, the combined The particularity of the holding to which provisions of Article 16 (1) of the Brussels the alleged leasing agreement relates is that Convention and the second sentence of it consists of a building with about five Article 137 (1) of the Pachtwet require that hectares of land situated at Maldegem the ruling on the entire holding, the main (Belgium) and four plots of land totalling 12 part of which is on Netherlands territory, be hectares, lying seven kilometres away in the given by the Netherlands court. However, commune of Sluis (Netherlands). The in the opinion of Maria G. Maenhout and dispute arose in 1982 from an event which Rita A. M. van Poucke, the Gerechtshof,

It follows that the jurisdiction to entertain a dispute concerning the lease of an agri­ In the proceedings before this Court, cultural holding divided between two written observations were submitted by contracting States vests exclusively, in Maria G. Maenhout, Rita A. M. respect of each part, in the courts of the van Poucke and the Commission of the State in whose territory that part lies; and European Communities. Only the even if the concomitant risk is that the same Commission took part in the hearing. instrument (the lease) will be subject to the appraisal of different national courts, the terms and effects of the judgments cannot extend to those parts of the land which fall 2. As observed above, the judgment of the within another jurisdiction. national court and the documents laid before it show that the question is whether there is a single lease concluded in respect That solution accords fully with the purpose of agricultural lands which are not adjacent, of the Convention and the rationale of are of varying sizes and are situated in the Article 16 (1). Indeed, this Court has territory of different States. recently held that to confer jurisdiction on the courts of the State in which the land is situated fulfils, better than any other rule, the requirement of 'providing for a clear In a situation of this kind, jurisdiction is and certain attribution of jurisdiction' and is guided by the age-old principle of the forum due to at least three factors: 'the fact that rei sitae ('ne contra situs legem in immo- tenancies are closely bound up with the law bilibus quidquam decerni possit privato of immovable property', 'the provisions, consensu et par est sic judicari', as generally of a mandatory character, D'Argentré wrote in De Statutis personalibus governing [the] use' of such property and et realibus, Commentarii ad patrias Britonum the 'first-hand knowledge [of the courts leges, seu Consuetudines generales anti- concerned] of the facts relating to the quissimi Ducatus Britanniáé, Article creation of tenancies and to the CCXVIII, Gl. 6, Nos 2 and 3, Paris 1614, performance of the terms thereof Col. 676). That rule was embodied in (judgment of 15 January 1985 in Case

As the defendants and the Commission point out, preference for the forum rei sitae is also in keeping with the principle of the That view cannot be accepted. It must first sound administration of justice. Besides the be observed that Article 16 (1) is to be reasons recited above, that preference is interpreted strictly. That is shown by several justified by (a) practical necessities, since it arguments based on the text itself: first, by is clear that judgments concerning rights in the imperative nature of exclusive juris­ rem in immovable property are enforced at diction, which cannot be overridden either the place where that property is situated; (b) by an agreement attributing jurisdiction to the often special nature of the national laws the courts of another contracting State or on the letting of immovable property and of by way of tacit prorogation (Articles 17 and the courts applying them; and (c) the fact 18); secondly, by the obligation on the that agreements whereby ownership is trans­ court of a contracting State other than that ferred or a right over immovable property is whose courts are recognized as having granted are registered at the place where exclusive jurisdiction to declare that it has that property is situated (to this effect, see no jurisdiction (Article 19); lastly, by the the Jenard Report, Official Journal 1979, fact that breach of those rules is authority C 59, p. 35, and in legal literature: Droz, for refusing to recognize or enforce the Compétence judiciaire et effets des jugements judgments concerned (Articles 28 and 34). dans le Marché commun, Paris, 1972, p. 101, and Bischoff's note on the judgment of the Court of 14 December 1977 in Case 73/77, published in the Journal du droit interna- tional 1978, p. 388 et seq., especially at p. 392). Furthermore, although in the case described by the Commission the application of Article 16 (1) may indeed, by involving duplication of the courts concerned and the laws applicable, give rise to certain disad­ 3. Endorsing the opinion of certain authors vantages, the extent of those disadvantages (Droz, op. cit., p. 193; Gothot and does not appear to justify exceptions to the Holleaux, La convention de Bruxelles du 27 principle of exclusive jurisdiction. It may be septembre 1968, compétence judiciaire et effets added that the economic unity of land does des jugements de la CEE, Paris, 1985, p. not necessarily preclude its being divisible 126), the Commission maintains that, in into separate parts for legal purposes and special circumstances, the rule under Article thus capable of falling under the jurisdiction 16 must be relinquished in favour of an of different national courts (see Niboyet, exclusive jurisdiction which is undivided but 'Les conflits de lois relatifs aux immeubles concurrent and in practice governed, by situés aux frontières des états', published in virtue of Article 23, by the criterion of the Revue de droit international et de légisktion court first seised. The hypothesis envisaged comparée, 1933, p. 468 et seq.).