C-280/90

HACKER

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 10 December 1991 *

Mr President, 4. Although the catalogue specified that the Members of the Court, size of the holiday home was 100 square metres, according to Mrs Hacker it was only 55 square metres in area, which meant that she was obliged to rent additional accommodation locally at a cost of DM 288. Mrs Hacker was not satisfied with the 1. Article 16(1) of the Brussels Convention 1 arrangements and finally cut short her gives exclusive jurisdiction in proceedings holiday. which have as their object tenancies of immovable property to the courts of the Contracting State in which the property is situated.

5. In the Amtsgericht and then the Landgericht Köln Mrs Hacker claimed D M 760 as a reduction in the cost of the holiday, damages representing the cost of 2. That provision has once again been renting the extra room, and D M 3 046.35 submitted to the Court for interpretation by damages as compensation for lost holiday the Landgericht Köln in connection with a enjoyment on behalf of herself and her contract for the letting of a holiday home. husband.

3. By a contract dated 5 April 1989, 6. The Landgericht Köln asks the Court formally described as a 'tenancy agreement', essentially: Euro-Relais of Cologne, a travel organizer, undertook to make available for the use of Mrs Hacker, who is domiciled in Cologne, 2 a holiday home in the Netherlands which was not owned by the agency. The holiday (1) if there is a tenancy agreement within home, which was chosen from a catalogue, the meaning of Article 16(1) of the was to be let for a fortnight, at a price of Convention in circumstances such as DM 1 520. The agency also undertook to those arising in this case; make bookings for the ferry crossing to the island of Ameland.

7. The Court has already been called upon domiciled in a Contracting State shall, to interpret the concept of 'tenancies of whatever their nationality, be sued in the immovable property^ within" the meaning of courts of that State. Article 16(1) of the Convention three times. The Court established the principle that the concept should be interpreted independently on the basis of the Convention itself, without reference to the law applicable 11. As the Jenard Report points out, 6 under the conflict rules of the national court Article 16 provides for exclusive jurisdiction hearing the main proceedings. 3 which may not be departed from either by an agreement purporting to confer juris­ diction on the courts of another Contracting State (Article 17) or by an implied submission to the jurisdiction (Article 18). 8. Only if there is uniformity of interpre­ Under Article 19 of the Convention any tation will uniform application of the court of a State other than the State whose Convention in all the Contracting States be courts have exclusive jurisdiction pursuant ensured in this area and the 'free movement to Article 16 must declare of its own motion of decisions' which constitutes the primary that it has no jurisdiction. Finally, a foreign objective of the Convention guaranteed. decision given in disregard of exclusive jurisdiction will not. be recognized (Article 28) or enforced (Article 34).

9. As regards the method of interpretation the Court will recall the particularly instructive formula it offered in its judgment in LTV w Eurocontrol·.* 12. In its judgment in Sanders7 the Court emphasized that:

'Having regard to that consideration the 14. In that case two private individuals, provisions of Article 16 must not be given a both domiciled in Germany, concluded a wider interpretation than is required by their letting agreement, which they expressly objective.' 8 stated was to be governed by German law, for a holiday villa in Italy. It was agreed that the letting would be for four persons for a period of three weeks and that the tenant was not permitted to accommodate The Court concluded that the concept of a visitors. The owner, who spent his holiday tenancy did not cover a contract relating to in the same villa at the same time as the a business carried on in immovable property tenant, brought proceedings against the rented from a third person by the lessor. 9 tenant in the courts of his domicile on the ground that the clauses in the contract had not been complied with, in particular in respect of the number of persons to be accommodated. 13. However, precisely in a case where there was a contract for the letting of a holiday home, the Court held in Rosier™ that Article 16(1) of the Convention 15. The Court stated:

exceptions may be made to the general rule 19. Speaking at a seminar on the Brussels laid down in Article 16 owing to the special Convention held in Luxembourg on 11 and character of certain tenancies, such as 12 March 1991, Mr M. Carpenter short-term lettings of holiday homes, even concluded on the subject of Article 16 'it though the wording of that article provides may be that parties to such lettings (of no indication in that respect. holiday accommodation) will increasingly resort to arbitration in future to avoid the inconveniences caused by Article 16'. u It must be emphasized in this regard that ( . . . ) inherent in any exception to the general rule laid down in Article 16(1) is the risk of further extensions which might call in question the application of national legis- 20. Noting the solution arrived at in the lation governing the use of immovable Rosier judgment, the States who were property.' 1 3 parties to the San Sebastian Convention 'on the accession of Spain and Portugal' of 26 May 1989 decided to insert a new 16. It follows that when two nationals of a subparagraph (b) in Article 16(1) concerning single Member State, both domiciled in that short-term tenancies, in particular tenancies State, make a tenancy agreement for a for holiday purposes. ls holiday home in another Member State, actions arising from that tenancy fall within the exclusive jurisdiction of the courts of the latter State. 21. That Convention, which has not yet entered into force, provides in the new 17. The Court's judgment failed, however, Article 16(l)(b) for the concurrent juris- to dispel the unease 14 caused in the national diction of the courts of the defendant's legal systems and academic writing by the domicile 'in proceedings which have as their provision contained in Article 16 which is object tenancies of immovable property general and does not make distinctions. concluded for temporary private use for a maximum period of six consecutive months (...) provided that the landlord and the tenant are natural persons and are domiciled 18. In their commentary on the Brussels in the same Contracting State'. 19 Convention, 1 5 Gothot and Holleaux had already stated: 'It may well be thought excessive to give exclusive jurisdiction over any dispute whatsoever arising from a tenancy of immovable property to the courts of the country where the immovable 22. The exclusive jurisdiction rule contained property is situated when the dispute will in Article 16(1) of the Brussels Convention sometimes be purely a matter for the is applicable 'regardless of domicile' and ordinary law governing contracts or links jurisdiction to a territory: the territory rentals'. 16 where the property is situated.

25. It should first be noted that, as a business organizing holiday accommo- 30. With regard to the jurisdiction rattorte dation, the agency undertakes in that type loci it might well be considered that disputes of contract more than just to make a concerning whether the accommodation was holiday home available. It seems clear to me in conformity with that offered in the that the travel agency's obligations are not catalogue, cancellation insurance, the at an end once it has made the holiday validity of clauses limiting liability or the home available. duty to give professional advice fall within the jurisdiction of the courts where the contract was negotiated and concluded rather than the courts for the place in which 26. All the other services provided by the the property is situated. The same is true of agency must be taken into account when the price: as the Landgericht Frankfurt judi- characterizing the contract: advising the ciously observed, 22 the price of accommo- client, booking the chosen villa, making dation is often a catalogue price determined ferry bookings, providing cancellation by the state of supply and demand in travel insurance, paying the rental to the owner agencies rather than by the state of the (avoiding the need for the holidaymaker to rental market in the place where the do so), etc. That multitude of services is property is situated. reflected in the fact that the price paid by the holidaymaker represents not merely the rent but also the cost of insurance, 'booking fees' and the agency's remuneration. 31. In circumstances such as those that arose in this case, there is not, therefore, a tenancy within the meaning of Article 16 of

the Brussels Convention which makes a where the property is situated a contract strong link between the rules on tenancies whose 'centre of gravity" is the place where and those on rights in rem.2i It is striking to it was concluded. note that in this case the claims of the plaintiff in the main proceedings are personal claims in contractual liability which, moreover, in no sense put at issue the status 34. The Landgericht Köln asks solely in the of the property. event that the Court should find that there was a tenancy within the meaning of Article 16(1) of the Convention whether a distinction should be drawn between the 32. Finally, it should be remembered that different claims put forward by the plaintiff because Article 16 provides for exclusive in the main proceedings. I shall therefore jurisdiction, the Court interprets the article examine the question only in the alternative. narrowly, stating in the Sanders2* judgment The Court will recall that the plaintiff is that it applies only seeking a reduction in the price because of a shortcoming in the holiday home (which was smaller in area than had been specified), claiming damages for having had 'to tenancies of immovable property properly to rent an extra room and compensation for so-called, that is to say, in particular, a disturbed holiday. disputes between lessors and tenants as to the existence or interpretation of leases or to compensation for damage caused by the tenant and to giving up possession of the premises'. 25 35. In the Rosier case the Court held:

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HACKER

36. The action which the Court considered decision: the risk of conflicting decisions, in that case to be inseparable from the the risk of both courts declining jurisdiction tenancy agreement was brought by the with no possibility of any court resolving owner who, having spent his holiday at the the issue, and in addition the excessive costs same time as the tenant in the villa that he and burden on the parties. had let, complained about the noise and excessive number of people in the villa. He was seeking compensation for 'lost holiday enjoyment' as a holidaymaker staying in the same villa as the tenant, not as its owner. 40. The Court will recall that in the Peters judgment it stated:

39. Finally we should not underestimate the major practical difficulties which could 42. Consequently I consider that in the result from a 'Zuständigkeitssplitting', 28 event that the Court should not share my referred to by the Landgericht Köln in its 29 — Case 34/82 Peters v ZNAV [1983] ECR 987, paragraph 28 — 'Splitting of jurisdiction.' 17.

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OPINION OF MR DARMON —CASE C-280/90

opinion but takes the view that a contract of the Convention, all the plaintiffs claims such as that concluded by the parties to the are sufficiently connected with that tenancy main proceedings should be regarded as a and therefore fall within the ambit of that tenancy within the meaning of Article 16(1) article.

43. I therefore conclude that the Court should hold that:

(1) Article 16(1) of the Brussels Convention should be interpreted as not applicable to a contract concluded in a Contracting State between a travel organizer and a client, both of whom are domiciled in that State, which obliges the travel organizer, amongst other services provided, to procure for the use of the client for a few weeks holiday accomodation — whether or not the travel organizer owns the accommodation — situated in another Contracting State;