C-292/93
ECLI:EU:C:1994:111
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LIEBER
OPINION OF ADVOCATE GENERAL DARMON delivered on 22 March 1994 *
Mr President, brought before the Landgericht (Regional Members of the Court, Court) Frankfurt am Main a claim for com pensation for use for the period in question.
1. By order of 10 June 1992, received at the Court on 19 May 1993, the Oberlandesge richt (Higher Regional Court) Frankfurt am Main asks the Court for an interpretation of 3. The Landgericht, in order to assess the Article 16(1) of the Brussels Convention value of the use of the property, appointed a of 27 September 1968 on jurisdiction and the French expert, and on the basis of his report enforcement of judgments in civil and com that court determined the amount of com mercial matters 1 ('the Convention'), in the pensation payable to Mr and Mrs Göbel. context of proceedings between Norbert Lieber, the appellant in the main proceed ings, and Mr and Mrs Göbel, the owners of an apartment in Cannes (France), all three being domiciled in the Federal Republic of Germany.
4. Mr Lieber appealed against that decision. He considered that in view of the location of the property, the French courts had exclusive jurisdiction under Article 16(1) of the Con 2. Following earlier proceedings, the parties vention, which provides that: reached a settlement on 27 April 1978 in which Mr and Mrs Göbel agreed to transfer the ownership of the said apartment to Mr Lieber. The appellant in the main proceed ings was thus put in possession of the apart ment and used it from 1 June 1978 to 30 April 1987. The settlement was declared void under Paragraphs 313 and 125 of the Bürger liches Gesetzbuch (German Civil Code), and 'The following courts shall have exclusive the respondents in the main proceedings jurisdiction, regardless of domicile: ... in pro ceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Con * Original language: French. tracting State in which the property is situ 1 — As amended by the Accession Convention of 9 Octo ber 1978 (OJ 1978 L 304, p. 1). ated ...'.
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5. In those circumstances the Oberlandes 8. Let me say straight away that neither the gericht Frankfurt am Main puts the follow underlying objective of the rule nor the case- ing question to the Court: law of the Court supports such an argument.
9. The intention of the authors of the Con vention was to limit the scope of Art icle 16(1) to tenancies in the strict sense. 'Do the matters governed by Article 16(1) of Thus the Jenard Report 3 statesthat tenancies the Brussels Convention also cover questions of immovable property of compensation for use made of a dwelling after a failed property transfer?'
'will include tenancies of dwellings and of premises for professional or commercial use, and agricultural holdings. In providing for the courts of the State in which the property 6. To answer that question, the Court will is situated to have jurisdiction as regards ten have to determine the scope of Article 16(1) ancies in immovable property, the Commit with respect not only to 'tenancies of tee intended to cover disputes between land immovable property' but also to 'rights in lord and tenant over the existence or rem in immovable property'. I shall therefore interpretation of tenancy agreements, com examine those two aspects in turn. pensation for damage caused by the tenant, 4 eviction, etc.'.
10. The reasons for conferring exclusive jurisdiction in this respect are that: 7. I. The appellant in the main proceedings argues that although 'the counterclaim does not put forward any claims relating to the 2 law on tenancies', it must be regarded as relating to the law on tenancies with respect 'This type of dispute often entails checks, in particular to the determination of the amount of rent and the rules on protection enquiries and expert examinations which for tenants, with the result that the French have to be made on the spot. Moreover, the courts must be allowed exclusive jurisdic matter is often governed in part by custom tion. ary practices which are not generally known
3 — OJ 1979 C 59, p. 1. 2 — P. 2 of his observations. 4 — P. 35.
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except in the courts of the place ... where the diction to the courts of one Contracting 5 State in accordance with Article 16 of the immovable property is situated.' Convention results in depriving the parties of the choice of the forum which would otherwise be theirs and, in certain cases, results in their being brought before a court which is not that of the domicile of any of 11. Moreover, that exclusive jurisdiction 8 them', cannot be derogated from by an agreement conferring jurisdiction (Article 17) or by an implied extension of jurisdiction (Article 18). Under Article 19 of the Convention, a court from a State other than the State whose courts have exclusive jurisdiction by virtue and concluded that of Article 16 must declare of its own motion that it has no jurisdiction. Finally, a judg ment given in another Contracting State which conflicts with a rule conferring exclu sive jurisdiction cannot be recognized (Art 'having regard to that consideration the pro icle 28) or enforced (Article 34). visions of Article 16 must not be given a wider interpretation than is required by their 9 objective'.
12. The exclusive jurisdiction conferred in this respect on the courts of the place where the property is situated has incidentally been 14. In that judgment, and also in three other regarded as 'curious' by an authority on the 10 judgments, the Court had to rule on the 6 subject. interpretation of 'tenancies of immovable property' within the meaning of Art icle 16(1) of the Convention and in each case upheld the principle of an independent inter pretation without reference to the rules of 13. The Court for its part stated in the Sand- national law. 7 ers judgment that
15. Thus in the Sanders judgment the Court 'the assignment, in the interests of the proper refused to apply that provision to an agree administration of justice, of exclusive juris ment whose principal aim concerned the
5 — Ibid. 8 — Paragraph 17. 6 — Bellet, P.: 'L'élaboration d'une convention sur la reconnais- 9 — Paragraph 18. sance des jugements dans le cadre du Marché commun', 10 — Judgments in Case 241/83 Rosler v Rottwinkel [1985] Journal de droit international, 1965, p. 833, at p. 857. ECR 99, Case 158/87 Scherrens v Maenhout and Others 7 — Judgment in Case 73/77 Sanders v van der Putte [1977] ECR [1988] ECR 3791, and Case C-280/90 Hacker [1992] ECR 2383. I-1111.
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operation of a business. 1 In the Hacker '... the conclusion may appear inappropriate, judgment the Court likewise declined to or even absurd, in that it makes the proce regard as a tenancy an agreement which dure considerably more complicated', 14
it was nevertheless dictated by the provision itself. 'irrespective of its title, and although provid ing a service concerning the use of short- term holiday accommodation, ... also 12 includes other services ...'.
18. However, in that case the parties had indeed concluded an agreement for a tenancy within the meaning of Article 16(1), certain characteristics of which were defined by the Court as follows: 16. In the Rosier judgment, on the other hand, the Court held that Article 16(1) applied
'Leases generally contain terms concerning entry into possession by the tenant, the use to which the property is to be put, the obli gations of the landlord and tenant regarding the maintenance of the property, the dura 'to all lettings of immovable property, even tion of the lease and the giving up of posses for a short term and even where they relate sion to the landlord, the rent and the inci only to the use and occupation of a holiday dental charges to be paid by the tenant, such 13 15 home'. as water, gas and electricity charges.'
19. An agreement relating to immovable property does not necessarily relate to a 17. The conclusion reached by the Court in transfer of use and occupation as defined by that judgment cannot be regarded as having the Court, and in that case Article 16(1) can extended the scope of that provision. As not be applied. A fortiori, there cannot be a Huet writes in his observations on the deci transfer of occupation if, as a result of its sion, although being declared void, there is no contractual relationship. That is the case in particular
11 — Paragraph 16. 12 — Judgment in Hacker, cited above (note 10), paragraph 14. 14 — Journal de droit international, 1986, p. 440. 13 — Paragraph 25. 15 — Paragraph 27.
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with respect to compensation for use for the 22. I note, however, that the fact that some period during which a person has occupied Member States have mandatory rules relating immovable property following a void con to commercial tenancies was not considered tract for sale, in other words with no legal by the Court to justify the application of right or title. Article 16(1) in the aforesaid Sanders judg ment, contrary incidentally to the opinion of 1 the Advocate General. 7
20. Moreover, I believe that that conclusion is in harmony with the 'rule of reason' relat 23. Moreover, according to Gothot and ing to this head of jurisdiction in cases con 1 cerning residential tenancies of immovable Holleaux, 8 property, expressed as follows in the Court's judgment in Sanders:
'... the scope of Article 16(1) cannot be extended on the pretext that reasons of the proper administration of justice and the con 'Tenancies of immovable property are gener cordance of the judicial and legislative func ally governed by special rules and it is pref tions, which are the basis of that provision, erable, in the light of their complexity, that are also met with in cases other than those they be applied only by the courts of the 1 expressly provided for'. 9 1 States in which they are in force.' 6
24. II. If the compensation in question can 21. Assessment of the compensation for use not be based on the concept of a tenancy of will indeed depend on the letting value of the immovable property, can it be regarded as dwelling (already determined at first instance relating to a right in rem in immovable prop in the main proceedings after consulting a erty, in so far as it follows from a void con French expert), but it should be noted that tract of sale? national rules restricting or indexing rents are intended to protect persons holding under a lease, not mere occupiers. 17 — Sanders, cited above (note 7), p. 2393. 18 — La convention de Bruxelles du 27 septembre 1968 — Compétence judiciaire et effets des jugements dans la CEE, Jupiter, 1985. 16 — Paragraph 14. 19 — Paragraph 149, p. 86.
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25. With respect to the scope of that part of 'an independent definition must be given in Article 16(1) which refers to 'rights in rem in Community law to the phrase "in proceed immovable property' the Court has handed ings which have as their object rights in rem- down only one judgment to date, the judg in immovable property" ...'. 23 2 ment in Reichert I, 0 since judgment has not 21 yet been given in the Webb case, which concerns the same provision and in which I delivered my Opinion on 8 February 1994.
28. The Court then held that that provision had to be given a restrictive interpretation, and stated that
26. In the Reichert I case a married couple domiciled in the Federal Republic of Ger many had donated to their son, who was also 'the exclusive jurisdiction of the Contracting domiciled in that State, the legal ownership State in which the property is situated does of immovable property situated in France, not encompass all actions concerning rights reserving to themselves the right to use it. in rem in immovable property but only The German bank which was their creditor those which both come within the scope of brought proceedings in France, namely the the Brussels Convention and are actions action paulienne provided for in Article 1167 which seek to determine the extent, content, of the French Civil Code, the effect of which ownership or possession of immovable prop is to render a transfer of property made in erty or the existence of other rights in rem fraud of the creditor's rights ineffective as therein and to provide the holders of those against him. rights with the protection of the powers 24 which attach to their interest'.
27. On a question being referred by the 29. On the distinction between rights in per- Cour d'Appel, Aix-en-Provence, on the sonam and rights in rem, the Schlosser nature of such an action with respect to Art Report 25 states: icle 16(1), the Court, referring expressly to its judgments in Sanders, cited above, and 22 Duijnstee, noted that
'A right in personam can only be claimed 20 — Judgment in Case C-115/88 [1990] ECR I-27. Following against a particular person ... A right in rem, that judgment, the national court made a fresh reference to the Court of Justice to ascertain whether an action pauli- on the other hand, is available against the enne under Article1167 of the French Civil Code could come under Articles 5(3), 16(5), and 24 of the Convention whole world. The most important legal con- (judgment in Case C-261/90 Reichert II [1992] ECR I-2149). The latter decision is of no relevance for the present proceedings. 21 — Case C-294/92, judgment of 17 May 1994 [1994] ECR I-1717, I-1719. 23 — Paragraph 8. 22 — Judgment in Case 288/82 Duijnstee v Coderbauer [1983] 24 — Paragraph 11. ECR 3663. 25 — OJ 1979 C 59, p . 71.
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sequence flowing from the nature of a right in other words, a debt — in the debtor's in rem is that its owner is entitled to demand estate. that the thing in which it exists be given up 26 by anyone not enjoying a prior right.'
32. An action claiming compensation for use as a result of the annulment of a contract of 30. Schlosser then states with reference to sale is a consequence of the annulment of a the particular field of actions concerning the contractual relationship which furthermore obligation to transfer the ownership of has no bearing on the existence, content or immovable property, structure of the property right. It thus does not come within the category of rights in rem.
'Where a purchaser of German immovable property brings proceedings on the basis of a 29 33. Moreover, as L. Collins writes: contract for sale of immovable property which is governed by German law, the subject-matter of such proceedings is never a right in rem in the property. The only matter in issue is the defendant's personal obligation to carry out all acts necessary to transfer and 27 'The expression (rights in rem in ... immov hand over the property.' able property) is clearly aimed at actions involving title or possession. Thus, it does not include an action for damages caused to an immovable. Nor is it concerned, it seems, with an action concerning the purely con tractual aspects of a property transaction 31. Although such an action may have an '. ... 30 effect on a right in rem, its basis is thus a relationship of a personal nature, so that in Professor Schlosser's opinion it should not come within the scope of Article 16(1). That situation is different from the one before the national court, which is characterized by a 34. It would moreover be paradoxical, as the legal relationship corresponding to a mere French Government has incidentally rightly claim for protection of a right in personam pointed out, if such an action came under the by virtue of which a creditor's estate includes an asset, while conversely as a result of the same relationship there is a liability — 28 — See Mazeaud-Chabas: Leçons de droit civil. Introduction à l'étude du droit, p . 213 et seq., Vol. I, part 1, 8th edition by Chabas, Éditions Montchrestien, 1986. 29 — The Civil Jurisdiction and Judgments Act 1982, Butter- worths, 1983. 26 — Paragraph 166(a), p . 120. 27 — Paragraph 170(a), pp . 121 and 122. 30 — P. 79.
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rule on jurisdiction in Article 16, even right in personam deriving from the same though the action for annulment did not. legal operation also appear to be outside the scope of Article 16(1), since that provision is probably not intended to reserve to the courts of the country where the immovable property is situated actions such as those for the annulment, cancellation or rescission of a 35. Although the latter action altered the sale, or even actions for delivery of the structure of a right in rem, that does not immovable property which has been sold.' 31
mean that it can be regarded as being strictly of an in rem nature, since it is based on a legal relationship of a personal nature.
37. Bischoff, commenting on the Court's judgment in Reichert I, also considers that: 36. That opinion is shared by Professor Schlosser in his report, and is also supported by the most authoritative writers, in particu lar by Gothot and Holleaux who write that:
'the fact that immovable property is con cerned is not enough to impose exclusive jurisdiction under Article 16. It is necessary, much more narrowly, that the action consti 'Mixed actions in which a person at one and tutes the exercise of a right in rem in immov the same time assens a right in rem and a 32 able property ...'.
38. I therefore propose that the Court should rule as follows:
A claim for compensation for the use of immovable property after the annulment of a contract of sale does not fall within the scope of Article 16(1) of the Brussels Con vention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters .
31 — Paragraph 145, p. 84. 32 — Journal de droit international, 1990, p. 503, at p. 504 in fine.
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