C-115/88

'by providing that the courts of the 2. The main proceedings concern a dispute Contracting State in which the property is between Dresdner Bank AG, a company situated are to have exclusive jurisdiction in governed by German law, whose registered proceedings which have as their object office is at Frankfurt am Main, on the one rights in rem in immovable property or hand, and Mr and Mrs Reichert and their tenancies of immovable property, it was the son, on the other. On the basis of Article intention of the Brussels Convention to lay 1167 of the French civil code, Dresdner down a rule of jurisdiction without any Bank brought proceedings before the reference whatever to the classification of tribunal de grande instance (Regional actions as personal, real or mixed actions, Court), Grasse, in the form of an action taking account only of the substantive legal paulienne, seeking a declaration that the issue, namely the nature of the rights donation was ineffective as against the concerned, and whether the rule of juris­ applicant, who was a creditor of Mr and diction thus laid down entitles a creditor Mrs Reichert. The tribunal de grande who contests transactions entered into by instance, Grasse, within whose judicial his debtor in fraud of his rights — in this district the property is situated, held that it case a donation of rights in rem in had jurisdiction to hear the proceedings immovable property — to bring his action pursuant to Article 16(1) of the Convention before the courts of the Contracting State in of 27 September 1968 on jurisdiction and which the property is situated'. the enforcement of judgments in civil and commercial matters, which provides:

States or in the light of the objectives and 9. B — The second part of the question is, system of the Brussels Convention. in effect, whether the concept of 'proceedings which have as their object rights in rem in immovable property', as interpreted within the framework of the Brussels Convention, covers proceedings 6. A — Without formulating a general such as the action paulienne in French law in principle in that regard, the Court has cases where such an action — which may hitherto generally ruled in favour of an also concern movable property — is brought independent interpretation, although it by a creditor to challenge the donation of accepts that neither of the two options rules the legal ownership of immovable property out the other and that the choice must be made by a debtor. made on a case-by-case basis, depending on the provision concerned. ' It has taken that approach, in particular, in two cases

7. The cour d'appel considers that the which the property is situated. wording of Article 16(1) should not be interpreted as merely a reference to French internal law and its traditional classification of actions into personal, real and mixed 11. There is much to be said for such an actions. approach. If the action is successful, will Mr and Mrs Reichert's son not cease to be able to rely, as against the Dresdner Bank, on his right in rem—hitherto available erga omnes—in the property?

more qualified approach, see the judgment of 6 October 1976 in Case 12/76 Tessiliv Dunlop[1976] ECR 1473. 'of the uncertainty which would be created 2 — See the judgments of 14 December 1977 in Case 73/77 if the courts allowed exceptions to be made Sanders v Van der Pulle [1977] ECR 2383 and of 15 to the general rule laid down in Article January 1985 in Case 241/83 Rösier v Rottwinkel [1985] ECR 99. 16(1), which has the advantage of providing

15. It is striking to note that this conception of what constitutes the essence of a right in 13. In addition, an action paulienne lies only rem is shared by the United Kingdom — if the debt is liquid and due for payment. 3It representing the common law tradition — will therefore normally be followed by which also proposes that the scope of attachment, which can only be effected at Article 16(1) should be limited to the place where the property is situated. proceedings brought directly to determine Moreover, Article 54 of the French code of as against the whole world the lawful civil procedure provides that any creditor ownership or possession of the property. may be authorized to enter a provisional But, as the United Kingdom rightly points registration of a judicial hypothec over out, the principal object of the action in immovable property if he can show that he question is to establish that the defendant has 'a prima-facie valid claim', that there are acted with the intention of defrauding his circumstances of urgency and that recovery creditors rather than to determine the issue of the debt is endangered. 4 That step of lawful ownership or possession of appears to have been taken in the present immovable property. case. All those arguments, therefore, plead in favour of an interpretation allowing the courts of the place where the property is situated jurisdiction to hear an action 16. Like the United Kingdom, the German paulienne, as 'the best placed' 5to deal with and Italian Governments and the the dispute. Commission consider that it is not enough that a right in rem in immovable property should be concerned by an action, or that the action should relate to or have a connection 14. It is none the less certain, on the other with immovable property for Article 16(1) hand, that the plaintiff in an action to be applicable. On the contrary, the right 6 paulienne does not rely on any right in rem in rem must be the actual came of the and, as the French Government has stated, action, which must have as it object to if the action is successful, determine, erga omnes, the ownership of the property in question.

'the assignment, in the interests of the proper administration of justice, of exclusive 18. The Court's case-law cited above in jurisdiction to the courts of one Contracting footnote 2, which concerns the tenancies of State in accordance with Article 16 of the immovable property to which Article 16(1) Convention results in depriving the parties also refers, also takes a relatively restrictive of the choice of forum which would approach. The Court held that Article 16 otherwise be theirs and, in certain cases, covers neither disputes concerning contracts results in their being brought before a court whose principal object is not the tenancy which is not that of the domicile of any of (such as an agreement to rent under a them; usufructuary lease a retail business carried on in immovable property rented from a third person by the lessor — Sanders) nor those which are only indirectly related to the use of the property let (such as those having regard to that consideration, the concerning the loss of holiday enjoyment provisions of Article 16 must not be given a and travel expenses — Rösier). wider interpretation than is required by their objective'.

25. As regards the actual answer to be given to the cour d'appel, two options are available: either an answer couched in 26. In the final analysis, I think it preferable negative terms, ruling that proceedings such to choose the first option, as the French and as the action paulienne under Article 1167 of Italian Governments and the Commission the French civil code do not come within have done. My consideration of the national the scope of the paragraph in question court's question has necessarily been based (which would undoubtedly be sufficient to on the aim and effects of the action enable the national court to settle the paulienne in French law (disregarding, dispute before it) or one formulated in obviously, the classification of that action in positive terms, stating which types of action the French legal system). It would, are to be regarded as coming within the therefore, be prudent not to give an answer scope of Article 16(1). If the latter course going beyond that framework.

27. I therefore propose that the Court should rule as follows:

'(1) The concept of " proceedings which have as their object rights in rem in immovable property " in Article 16(1) of the Brussels Convention of 27 September 1968 must be interpreted in the light of the objectives and system of that convention ;

(2) An action such as the action paulienne under Article 1167 of the French civil code does not come within that concept.'

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