C-294/92
ECLI:EU:C:1994:41
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WEBB
OPINION OF ADVOCATE GENERAL DARMON delivered on 8 February 1994 "
Mr President, opened in Antibes by his son in whose name Members of the Court, the property was registered.
1. In this reference from the Court of 4. In March 1990, the father, George Webb, Appeal this Court is asked to rule upon the brought an action against his son in the High interpretation of Article 16(1) of the Brussels Court primarily for a declaration that the Convention of 27 September 1968 on Juris- son held the property upon trust and for an diction and the Enforcement of Judgments in order that his son should execute such docu- Civil and Commercial Matters ' (hereinafter ments as should be required to vest the legal referred to as 'the Convention'). The main ownership of the property in himself. facts of the dispute are as follows.
5. The son, Lawrence Webb, besides con- 2. During 1971 George Lawrence Webb tending that the property was a gift to him, concluded an agreement for the purchase of challenges the jurisdiction of the English a flat in Antibes (France). The authorizations courts on the ground that, since the action required by the Bank of England under concerns a right in rem in immovable prop- exchange control legislation were granted in erty, only the French court of the place the name of his son, Lawrence Desmond where the property is located has jurisdic- Webb. tion. He relies in this regard on Article 16(1) of the Convention, which provides that:
3. The funds necessary for the purchase were transferred from the bank account of the plaintiff in the main proceedings to one 'The following courts shall have exclusive jurisdiction, regardless of domicile: ... in pro- ceedings which have as their object rights in rem in, or tenancies of, immovable property, * Original language: French. the courts of the Contracting State in which 1 — As amended by the Convention of Accession of 9 Octo- ber 1978 (OJ 1978 L 304, p. 1). the property is situated'.
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6. By judgment of 23 May 1991 the High vent within the meaning of Article 16(1) of C o u r t dismissed that objection on the the Convention? ground that the father's claim is based on a fiduciary relationship, the father not seeking an order for possession, rectification of the land register or a declaration that he is the owner. 9. The Convention does take account of trusts and their specific nature since it lays down jurisdiction in matters concerning trusts in Article 5(6). However, that prov- ision is inapplicable in the present case owing 7. An appeal was lodged and the Court of to the very particular nature of the trust in Appeal has referred the following question: question. Whereas the aforesaid provision can only govern 'a trust created by the oper- ation of a statute, or by a written instrument, or created orally and evidenced in writing', the resulting trust involved here is to be deduced 'Whether on the true interpretation of Arti- cle 16(1) of the Brussels Convention the pro- ceedings in the action in the Chancery Div- ision of the High Court of Justice the short title and reference to the record of which is Webb v Webb [1990] W N o 2827 are pro- '... from the presumed intention of the per- ceedings in respect of which the courts of son who furnishes the property, or the pur- France have exclusive jurisdiction'. chase price of the property'. 2
8. A preliminary observation is called for. 10. As regards a resulting trust, Mr Béraudo Although the referring court has made its gives the example reference on the basis of Article 177 of the E E C Treaty, the relevant provision in this case is Article 3 of the Protocol of 3 June 1971. Even under that provision, the Court may not rule directly on the case before the C o u r t of Appeal but must provide it with '... of a person who buys property in anoth- the necessary criteria for interpretation so er's name. In the absence of a clear intention that it may give judgment. The question to make a gift, the person who financed the must therefore be reframed and could be put purchase is presumed to have retained equi- in these terms: does an action brought by a table title, the beneficial interest in the prop- person against another person for a declara- erty. The nominal owner has only the legal tion that the other person holds immovable property as trustee and for an order requir- ing the latter to execute such documents as 2 — Dyer-Van Loon Report on Trusts and Similar Institutions, should be required to vest the legal owner- Hague Conference on Private International Law, Proceed- ings of the Fifteenth Session, S to 20 October 1984, Vol- ship in the plaintiff constitute an action in- ume II, 1985, p. 64, No 110.
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title. He is the presumed trustee of the prop- 13. Finally, a judgment given in another erty'. 3 Contracting State in disregard of that juris- diction rule cannot be recognized (Article 28) nor enforced (Article 34).
11. Where Article 16 is concerned, it should be borne in mind that this provision appears in Section 5 of Title II of the Convention and determines which courts are to have jurisdiction where the principal subject- 14. Article 16 may therefore have the effect matter of the claim relates to a matter men- of bringing parties before a court which is tioned therein. Article 16, which confers not that of any of them. exclusive jurisdiction, has the effect of oust- ing the jurisdiction of the courts of the place where the defendant is domiciled and applies irrespective of any contrary agreement between the parties. 15. That provision, in the part conferring exclusive jurisdiction 'in proceedings which have as their object rights in rem in immov- able property' on the courts of the Contract- 12. As Droz wrote 4 ing State in which the property is situated, has given rise to only one judgment of the Court, in Reichert I, 6 on which the obser- vations of the parties concentrated, though it '... the heads of jurisdiction enumerated in was not mentioned during the proceedings Article 16 will normally be the subject of before the English courts. exclusive jurisdiction only if they relate to the principal subject-matter of the proceed- ings of which the court is to be seised. This follows a contrario, but quite clearly, from Article 19 of the Convention which requires the court to decline jurisdiction, where a 16. In the case in which that ruling was court of another Member State has exclusive given, a man and wife domiciled in the Fed- jurisdiction under Article 16, only if it is eral Republic of Germany had donated to seised of the principal subject-matter of the their son, who was also domiciled in that issue reserved for the courts of another State, the legal ownership of immovable Member State'. 5 property located in France, taking a life interest for themselves. The German bank, which was a creditor of the couple, had brought in France an 'action paulienne' 3 — 'Les Trusts Anglo-Saxons et le Droit Français', LGDJ, 1992, p. 38, N o 65. 4 — Competence Judiciaire et Exécution des Jugements dans le Marché Commun, Dalloz, 1972. 5 — Paragraph 146. See also the Jenard Report, OJ 1979 C 59, 6 — Judgment in Case C-l 15/88 Reichert and Others v Dresdner p. 34 and 38; Bellet, P.: 'L'élaboration d'une Convention sur Bank [1990] ECR 1-27. It should be remembered that fol- la Reconnaissance des Jugements dans le Cadre du Marché lowing delivery of that judgment the referring court made a Commun', Journal du Droit International, 1965, p. 833, 857; fresh reference in order to determine whether the action Gothot et Holleaux: La Convention de Bruxelles du 27 Sep- paulienne could be treated as an action covered by Arti- tembre 1968, Jupiter, 1985, paragraph 141; Kaye, P.: Civil cles 5(3), 16(5) and 24 of the Convention (judgment in Case Jurisdiction and Enforcement of Foreign Judgments, Profes- C-261/90 Reichen II [1992] ECR 1-2149). The second judg- sional Books, 1987, p. 874. ment is not relevant for the purposes of these proceedings.
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which had the effect of making the transfer '... must not be given a wider interpretation of property ineffective against itself. After than is required by its objective...', 10 the defendants had challenged the jurisdic- tion of the French court in favour of the German court of their domicile, the Cour d'Appel, Aix-en-Provence, referred a ques- tion asking in substance whether the action paulienne constituted an action in rem the ratio legis of that provision resting on the within the meaning of Article 16(1) of the principle of proximity n which justified con- Convention. ferring jurisdiction on the courts of the locus rei sitae, which
17. In its ruling the Court referred to its "... are the best placed, for reasons of proxim- judgment in Sanders,7 relating to the con- ity, to ascertain the facts satisfactorily and to cept of 'tenancies of immovable property' apply the rules and practices which are gen- and its judgment in Duijnstee,8 on 'proceed- erally those of the State in which the prop- ings concerned with the registration or valid- erty is situated...'. 12 ity of patents', and repeated its concern to ensure that concepts used in the Convention should be applied uniformly, this requiring
19. Those considerations led the Court to interpret that provision as meaning that
'... an independent definition [to] be given in Community law to the phrase "proceedings which have as their object rights in rem in immovable property"'. 9 '... the exclusive jurisdiction of the Contract- ing State in which the property is situated does not encompass all actions concerning rights in rem in immovable property but only those which both come within the scope of the Brussels Convention and are 18. After then observing that Article 16 pro- actions which seek to determine the extent, vided for a forum different from that ordi- content, ownership or possession of immov- narily having jurisdiction, the Court came to able property or the existence of other rights the conclusion tiiat it
10 — Paragraph 9. 7 _ Judgment in Case 73/77 Sanders v Van der Putte [1977] 11 — See, on this point, the study by Lagarde on 'Le Principe de ECR 2383. Proximité dans le Droit International Privé Contemporain', 8 — Judgment in Case 288/82 Duijnstee v Gaderbauer [1983] Académie de Droit International, Recueil des Cours, 1986, ECR 3663. I, Volume 196 of the collection, p. 9 et seq., 129. 9 — Paragraph 8. 12 — Paragraph 10.
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in rem therein and to provide the holders of 22. Thus, being based on an enforceable those rights with the protection of the pow- claim, the action paulienne has as its purpose ers which attach to their interest'. 13 to preserve the creditor's general security over the debtor's estate but without giving him a ius in rem, so that, as Ancel states: 17
20. The Court found it necessary to consider the basis and purpose of the action brought and refused to apply Article 16(1) on the 'Claims seeking to strike down a right in ground that: rem in immovable property by challenging the transaction by which the property was transferred do not concern that category of rights as directly as those striking at their structure and protection. Unlike the latter, the former arise away from the core of the 'The action paulienne ... is based on the "substance" — the legal nature of the prop- creditor's personal claim against the debtor erty — and are therefore liable to be barred and seeks to protect whatever security he by the rule of strict interpretation'. 18 may have over the debtor's estate'. 14
23. The positions taken before the Court are 21. As Bischoff states: 15 as follows.
'It would not therefore be rash to venture the view that the implications of the judg- 24. O n the one hand, we have the United ment certainly extend beyond the action Kingdom, which takes the view that the paulienne alone and embrace all actions for object of the father's action is 'the determi- annulment, rescission or avoidance which, nation of the question whether land is held although they might have a bearing on title under a trust' 19 and that the action concerns to property, are based on a right in personam only the relations internal to the trust so that of the plaintiff'.16 it cannot be regarded as concerning a right in rem.
13 — Paragraph 11. 14 — Paragraph 12. 17 — Revue Critique de Droit International Privé. 1991, p. 151. 15 — Journal de Droit International, 1990, p. 503. 18 — P. 157. 16 — P. 505. 19 — Paragraph 9 of its observations.
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25. That view is shared by the plaintiff in the necessarily be assessed in the light of the main proceedings who considers that 'where subject-matter of the claim, as defined in the the dispute concerns the existence or other- originating application, without looking at wise of a right arising out of a contract purpose. 21 between the parties, or out of their conduct towards each other, the courts of the situs will be no better qualified to determine the dispute than the courts of any other Con- tracting State'. 20 29. Exclusive jurisdiction is conferred pro- vided that the principal subject-matter of the claim relates to rights in rem in immovable property. Reading the French, Spanish and Italian texts ('en matière de droits réels 26. O n the other hand, we have both the immobiliers', 'en materia de derechos reales Commission and the defendant — the Com- immobiliarios', 'in materia di diritti reali mission expressly and the defendant more immobiliari'), one notices the slight differ- implicitly — laying stress on the purpose of ence in the English text ('in proceedings the claim and submitting that the action is which have as their object rights in rem'). one in rem, with the father claiming to be the owner, which at the hearing led Counsel for the defendant to sum up the plaintiff's claim, not without humour, in these words: 'What is the plaintiff's claim? My Lords, the plain- tiff's claim is to own the flat!' 30. As Advocate General Sir Gordon Slynn stated in his Opinion in the Rosier case: 22
27. The question is not an easy one and I have pondered on the correct approach to take, for the claim of ownership undeniably 'The other language versions seem to indi- underlies the claim for the recognition of cate that what is covered is litigation the such a trust. subject-matter (rather than "the object") of which is a tenancy agreement of immovable property rather than one which concerns simply the immovable property itself'. 23
28. However, the approach which looks at the actual aim pursued by the plaintiff in the 21 — See Verheul, J. P.: 'The EEC Convention on Jurisdiction main proceedings is not supported by the and Judgments of 27 September 1968 in Netherlands Legal Practice', Netherlands International Law Review, 1975, relevant provision, by prevailing academic p. 210. opinion or by the case-law of the Court. The 22 — Judgment in Case 241/83 Rosier v Rottwinkel [1985] jurisdiction ratione materiae of a court must ECR 99. 23 — At p. 104 in fine. English academic writers also consider that the subject-matter of the claim determines the forum and not the purpose. See, to this effect, Dashwood-Hacon- White: A Guide to the Civil Jurisdiction and Judgments Convention, Kluwer, 1987, p. 29; Anton, A. E-: Civil Juris- 20 — P. 9 of his observations. diction in Scotland, Green & Son Ltd, 1984, p. 103.
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31. Jenard also explained in this report that defendant execute such documents as are necessary to vest the legal ownership in the plaintiff constitutes an action in rem for the purposes of Article 16(1).
'... the matters referred to in this article will normally be the subject of exclusive jurisdic- tion only if they constitute the principal subject-matter of the proceedings of which the court is to be seised', 34. The distinction between rights in per- sonam and rights in rem, which is well known in continental legal systems, was defined in this way in the Schlosser Report:
and
'[tjhese rules (on exclusive jurisdiction), 'A right in personam can only be claimed which take as their criterion the subject- against a particular person ... A right in rem, matter of the action, are applicable regardless on the other hand, is available against the of the domicile or nationality of the whole world. The most important legal con- parties.' 24 sequence flowing from the nature of a right in rem is that its owner is entitled to demand that the thing in which it exists be given u p by anyone not enjoying a prior right'. 25
32. As far as the case-law of the Court is concerned, the requirement of a restrictive interpretation of Article 16, laid down for the first time in the Sanders judgment, cited above, reflects the Court's refusal to extend 35. Where property is transferred to a the scope of that provision to cover claims trustee to be held in trust, 'dual owner- which only indirectly or incidentally concern ship' 26 arises since title stands in the name of rights in rem. the trustee or in the name of another person on behalf of the trustee, 27 and the benefi- ciary holds the beneficial interest which is an equitable interest.
33. The question to be determined, there- fore, is whether or not an action for a decla- 25 — OJ 1979 C 59, paragraph 166 at p. 120. ration that a person holds property in trust 26 — See the Dyer-Van Loon Report, cited above in footnote 2, for another person and for an order that the paragraph 9 at p. 15. 27 — Sec, in this regard, the definition of a trust in Artide 2 of the Hague Convention of 1 July 1985 on the law applicable to trusts and on their recognition, in the Hague Conference on Private International Law, Proceedings of the Fifteenth Session, 8 to 20 October 1984, cited above in footnote 2, 24 — OJ 1979 C 59, p. 34, my emphasis. p. 362.
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36. According to the Schlosser Report, equi- 38. However, in the case in point, can the table interests action brought by the plaintiff in the main proceedings be regarded as an action laying claim to the immovable property situated in France on the basis of an equitable interest if the subject-matter of the dispute relates to the possible existence of a trust between '... are not, however, merely the equivalent of himself and his son, or, alternatively, to the personal rights on the Continent. Some can question of the parties' intention when the be registered and then, like legal rights, have property was purchased? 31 Is this not rather universal effect, even against purchasers in a preliminary question, which, whilst indeed good faith. Even if not registered they oper- having decisive consequences as regards ate in principle against all the world; only ownership, is intrinsically based at this stage purchasers in good faith who had no knowl- on a purely personal relationship? edge of them are protected in such a case'. 2S
37. Lasok and Stone 2 9 also suggest that equitable interests in land should be included 39. Although the circumstances of the in the concept of rights in rem. According to Duijnstee case, cited above, were quite differ- them: ent since it concerned Article 16(4), that case presents certain similarities. The relevant facts were as follows.
'... there can be no doubt that an equitable interest in land, as known to English law, qualifies as a "right in rem" for the purpose of Article 16(1); such an interest is binding on all persons, with the limited exceptions of 40. Mr Goderbauer, the employee of a com- certain purchasers, viz. those who purchase pany, had been granted patents in his name without notice, or benefit of non- in various Contracting States. The liquidator registration, or purchase from a vendor exer- in the winding-up of the company, cising powers of overreaching'. 30 Mr Duijnstee, claimed that those patents belonged to the person in whose name he sought their transfer. Article 16(4) confers 28 — Paragraph 167(b), at p. 121, second paragraph, in fine. jurisdiction 'in proceedings concerned with 29 — Conflict of Laws in the European Community, Professional the registration or validity of patents' on 'the Books, 1987. 30 —- At p. 237. See also Megarry and Wade: The Law of Real courts of the Contracting State in which the Property, 1984, p. 114, who state as follows: 'If by rights in deposit or registration ... has taken place'. rem is meant (as normally) rights enforceable against third parties generally, as opposed to rights in personam which are enforceable only against specified persons (e. g. contrac- tual rights), then equitable rights to property are unques- tionably rights in rem, though somewhat different írom legal rights to property'. See also Kaye, op. cit., p. 901. 31 — Paragraph 11 of the order for reference.
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41. After pointing out that none of the 43. Although the legality of the registration claims primarily concerned validity or regis- was not the principal subject-matter of the tration, Advocate General Rozès continued: dispute, nevertheless it was closely linked to the intention of, and relations between, the parties at the time of deposit so that this question had to be examined prior to the completion of the transfer formalities.
'That question (of the relationship between the company and the employee) arises in advance of the formalities, properly so-called, for the transfer of the applications 44. It is for that reason that I find the Com- lodged or patents registered .... It is not until mission's arguments in this case, based on a decision has been taken on any assistance the authority of Professor Kaye, unconvinc- which Mr Goderbauer might have to give to ing. According to Professor Kaye, the Liquidator that the problem of the trans- fer, properly so-called, of the rights of the applicant or the inventor will actually arise in the other Contracting States...'. 32
'[a]n action for a declaration that land pur- chased by one person in the name of another is subject to a resulting trust in favour of the former' 34
42. In its judgment the Court held that Arti- cle 16(4) was not applicable on the ground that
is covered by Article 16(1) in so far as the dispute concerns an equitable interest in land and
'... neither the validity of the patents nor the legality of their registration in the various countries is disputed by the parties to the main action. The outcome of the case in fact '[t]here seems no good reason why Arti- depends exclusively on the question whether cle 16(1) should not also be held to apply Mr Goderbauer or the insolvent company ... when the immovable property, rights in rem is entitled to the patent, which must be in which form the object of the proceedings, determined on the basis of the legal relation- is or is alleged to be property subject to a ship which existed between the parties con- trust, since the sound policy reasons for sub- cerned'. 33 jecting such proceedings to the exclusive jurisdiction of courts of the Contracting
32 — At pp. 3683 and 3684. 33 — Paragraph 26. 34 — P. 903.
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State situs are no less applicable than would 47. In this regard, Schlosser draws such a be the case if the property were not held on distinction: trust'. 35
'One could ... envisage a dispute arising between two people as to which of them was trustee of certain property. If one of them instituted proceedings against the other in a German court claiming the cancellation of 45. However, besides expressing doubt the entry in the land register showing the about actions which might be considered as defendant as the owner of the property and being in rem, Kaye, after giving the example the substitution of an entry showing the of an action for the recognition of a resulting plaintiff as the true owner, there can be no trust as an action in rem, goes on to mention doubt that, under Article 16(1) or (3), the likewise as an action in rem proceedings German court would have exclusive jurisdic- brought under section 172 of the Law of tion. However, if a declaration is sought that Property Act 1925, which penalizes the con- a particular person is a trustee of a particular veyance of property by a settlor to trustees trust which includes certain property, Arti- with intent to defraud creditors, 3 6 these cle 16(1) does not become applicable merely being proceedings which may be equated because that property includes immovable with the action paulienne, which, in its judg- property'. 37 ment in Reichert I, however, the Court held to be in personam.
48. The dividing line therefore appears to lie between actions whose principal subject- matter is a dispute over ownership between persons who do not claim inter se any fidu- ciary relationship and actions concerning a 46. I myself take the view that only actions breach of fiduciary duty which, if found to bearing directly upon 'the extent, content or have been committed, will have effects in ownership of immovable property' fall rem. In such a case, the personal nature of within the scope of Article 16(1). the relations is, in my view, the overriding factor.
35 — P p . 901 and 902. 36 — P. 903, (d). 37 — Paragraph 120 at p. 108.
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49. There can be no ground here for apply- immovable property do not therefore have as ing Article 16 since that provision, inter- their object rights in rem'.39 preted in the light of Article 19, is designed to govern only situations in which the in rem nature is predominant.
52. According to Gothot and Holleaux: 40
50. This is precisely the logic adopted in the Schlosser Report with regard to actions in 'Mixed actions by which a person relies on connection with obligations to transfer both a right in rem and a right in personam immovable property. 3 8 According to Schlo- arising from the same legal transaction also sser, in French, Belgian and Luxembourg appear to lie outside the scope of Arti- law, which is largely followed by Italian law, cle 16(1)...'. 41 ownership is transferred as soon as the con- tract is concluded, which is the time from which the purchaser may proceed to effect transcription which has the effect of making his title effective against third parties. In the They also consider that an action for div- United Kingdom, the purchaser has an equi- iding immovable property should not be table interest in the property which is effec- subject to special jurisdiction. 42 tive against third parties even though he must obtain the vendor's cooperation in order to make his legal title fully effective.
53. However, as the High Court points out, the plaintiff in the main action relies solely on the existence of a fiduciary relationship , a situation which indeed appears to corre- 51. Although he considers that the purchaser spond to that described in the Schlosser may claim transfer of ownership on the basis Report. of his right in rem, such an action must, according to Schlosser, be regarded as one in personam falling outside the scope of Arti- cle 16(1). Schlosser concludes: 54. In my view, the provision does not cover an action by which a person seeks a declara-
39 — Paragraph 172(c), at p. 122. 'Actions based on contracts for the transfer 40 — La Convention de Bruxelles du 27 Septembre 1968, Jupiter, 1985. of ownership or other rights in rem affecting 41 — Paragraph 145 at p. 84. They also state that: 'Article 16(1) confers exclusive jurisdiction on the courts of the country in which the immovable property is situated to entertain actions based on a principle or accessory right in rem in immovable property' (paragraph 144, my emphasis). 38 — Paragraphs 169 to 172. 42 — Paragraph 146.
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tion that property is held by another on trust 57. This idea of procedural economy, which since the person is not the holder of rights forms the basis for exclusive jurisdiction, has erga omnes, that is to say rights effective been supported in particular by Huet, 4 4 against the whole world. N o r are the rights who, in his commentary on the Rosier case, of third parties acting in good faith affected stated that by any recognition of a trust since ex hypothesi they were not previously informed of its existence.
'... the only consideration which would account for the exclusive jurisdiction pro- vided for in Article 16(1) is the necessity for the judgment which is to be delivered in the 55. The fact that the plaintiff in the main proceedings to be enforced at the place proceedings seeks an order requiring the where the property is situated'. 45 defendant to execute such documents as should be required to vest the legal owner- ship of the property in the plaintiff cannot alter the nature of the action, since the order sought is a mandatory injunction directed at the defendant alone whose non-performance would lead the plaintiff to bring proceedings 58. However, the Court has never expressly for the rectification of the land register. adopted that principle. Thus, in the Sanders case, it stated that
56. It is true that the ratio legis of Arti- cle 16(1) is partly based on procedural econ- '... actions concerning rights in rem in omy which is mentioned by Jenard; immovable property are to be judged according to the rules of the State in which the immovable property is situated since the disputes which arise result frequently in checks, inquiries and expert assessments which must be carried out on the spot, with the result that the assignment of exclusive jurisdiction satisfies the need for the proper '... the system adopted also takes into administration of justice'. 46 account the need to make entries in land registers located where the property is situated'. 43 44 — Journal de Droit International, 1986, p. 440. See also, to this effect, the commentary by Bischoff in the same publica- tion, 1978, p. 388 and 393. 45 — P. 444. 43 — P. 35. 46 — Paragraph 13.
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59. Similarly, in Reichert I, it held: a trust which attached to various properties situated in different Contracting States. The plaintiff would in that case be compelled to bring proceedings in the courts of each place where property is situated, which would have sole jurisdiction. Who cannot fail to see that such a situation would entail a serious '... although in certain Member States the risk of conflicting decisions, with the courts rules governing the public registration of of each State each having a monopoly on the rights in immovable property require public recognition of the existence of any trust notice to be given of legal actions seeking to relating to the property situated in their area have transactions affecting such rights of jurisdiction? Article 22 of the Convention, avoided or declared ineffective as against which deals with related actions, could not third parties and of judgments given in such counteract that risk in every case since it actions, that fact alone is not enough to jus- does not constitute a head of jurisdiction. 48 tify conferring exclusive jurisdiction on the In such a situation, the proper administration courts of the Contracting State in which of justice requires that the plaintiff should the property affected by those rights is apply to one court only, which would assess situated'. 47 the question of the possible existence of a trust by a judgment followed either by enforcement proceedings if the defendant complies with the order or by a direct action for claiming right of ownership.
60. However, no-one doubts that the need to have a judgment enforced at the place where the property is situated is part of the ratio legis of Article 16(1) so that in the present case the conferral of jurisdiction on the French courts could meet that need. 62. Finally, I would observe that the essen- tial reason for conferring sole jurisdiction under Article 16(1), as recognized by the Court in Reichert I , namely that the courts of the locus rei sitae are better placed to ascertain the facts satisfactorily and to apply 61. If the Court should hold, however, that the rules and practices of that locus, is irrele- an action for a declaration that a person is a vant where, as in this case, the principal trustee of a trust attaching to immovable subject-matter of the dispute is the possible property is an action in rem, that analysis existence of a fiduciary relationship between would necessarily be the same in the case of the parties.
47 — Paragraph 13. 48 — See, on this point, Gaudemet-Tallon, H.: Les Conventions de Bruxelles et de Lugano, LCD], 1993, p. 204 et seq.
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63. I accordingly propose that the Court should rule that an action brought by a person against another person for a declaration that the latter holds immovable property as trustee and for an order requiring the latter to execute such documents as should be required to vest the legal ownership in the plaintiff does not constitute an action in rem within the meaning of Article 16(1) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
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