C-8/98

* Original language: Italian. The referring court explains that Dansom- 1 — OJ 1972 L 299, p. 32. The Convention was amended by the mer has brought the main proceedings Accession Conventions of 9 October 1978 (OJ 1978 L 304, p. 1), 25 October 1982 (OJ 1982 L 388, p. 1) and 26 May following subrogation to the rights of the 1989 (OJ 1989 L 285, p. 1). owner of the house.

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OPINION OF MR LA PERGOLA — CASE C-8/98

4. The action was dismissed and Dansom- 5. The referring court points out that mer appealed to the Landgericht Heil- Article 16(1)(b) does not apply in this case bronn, the referring court in these proceed- since the plaintiff is domiciled in Denmark, ings. It considers that the case requires a while the tenant is resident in Germany. It decision on a preliminary issue of jurisdic- therefore asks this Court whether the tion governed by the Brussels Convention. contract at issue in the main proceedings That Convention lays down special rules in falls within the scope of Article 16(1)(a). If respect of proceedings which have as their that were the case, the matter would fall object rights in rem in immovable property under the exclusive jurisdiction of the and tenancies of immovable property, Danish courts. The Landgericht has there- which fall under the exclusive jurisdiction fore stayed the proceedings and referred the of the courts of the place where the following question to the Court for a property is situated. In particular, the preliminary ruling: provision of the Convention which is relevant here is Article 16, whose wording is as follows:

Dansommer is a limited company incorpo- the character of a lease. 3 The purpose of rated in Denmark, whilst Mr Götz is a the contract concluded between the parties, natural person resident in Germany. it is argued, is that of guaranteeing Mr Götz enjoyment of immovable property for the agreed period. The other services agreed between the parties (insurance in the event of cancellation and a guarantee against travel costs) were merely ancillary The issue referred to the Court therefore and did not alter that purpose. turns on the question whether Arti- cle 16(1)(a) applies in this case. In respect of that, two different arguments have been advanced, which can be summarised as follows. 7. I will state at once that, in my opinion, the argument that Article 16 of the Con- vention does not apply is not supported either by the scope of that provision or by the case-law of the Court. At first sight, the contract concluded between Mr Götz and Dansommer cannot be characterised as a lease within the meaning of Article 16 of the Convention. 2 It would, rather, seem to be a complex With reference to the first aspect — contractual relationship having as its object namely, that relating to the scope of the the performance of tourist services on the provision — we should recall that Arti- part of a professional operator, Dansom- cle 16(1) of the Convention establishes mer, in favour of a consumer, Mr Götz. exclusive special jurisdiction, which cannot Since there is no element referable to a be derogated from by the parties, in favour letting agreement, the rule providing for the of the courts of the place where the exclusive jurisdiction of the forum rei sitae immovable property is situated. 4 The ratio under Article 16 of the Convention does legis of this division of jurisdiction — as not apply. Advocate General Darmon stated in the Webb case — 'rests on the principle of proximity...': those courts, in fact, '... are the best placed, for reasons of proximity, to ascertain the facts satisfactorily and to apply the rules and practices which are The argument to the contrary, on the other hand, is that Article 16 is applicable on the basis that the relationship in question has 3 — This argument is advanced by the Spanish, Italian and French Governments. 4 — The exclusive jurisdiction under Article 16 cannot he derogated from by a clause conferring jurisdictionon the courts of another Contracting State (Article 17) nor by way 2 — This argument is advanced by Mr Gotz, by Dansommer of a tacit prorogation of jurisdiction (Article 18). Moreover, and, albeit on different grounds, by the Commission. The under Article 19 of the Convention, the courts of any State United Kingdom Government, in its written observations, other than that whose courts are recognised as having bad agreed with this argument; in the course of the oral exclusive jurisdictionpursuant to Article 16 must declare of proceedings, however, that Government changed its own their own motion that they have no jurisdiction. Finally,a position to the effect that Article 16(1)(a) did apply to this foreign judgment handed down in breach of Article 16 can case. neither be recognised (Article 28) nor enforced (Article 34).

The first is that the provision in question 'applies to all lettings of immovable prop- erty, even for a short term, and even when The ratio decidendi set out above provides, they relate only to the use and occupation in my opinion, a decisive key to interpreta- of a holiday home.' 10 Therefore, the mere tion for reaching a decision in this case. If it fact that immovable property is made is, indeed, true that the case-law tends not available for a short holiday — precisely to give Article 16 'a wider interpretation as happened in the present case — does not than is required by its objective,' 8that does prevent Article 16(1) from applying. not mean that an excessively restricted scope should be attributed to that provi- sion, with the risk of frustrating the prin- ciple on which the provision is based. Now, the main proceedings are specifically for compensation for damage claimed to have been caused by Mr Götz to the property in question. And, in accordance with the The second important pointer for resolving Court's case-law, the requirement to remit the present case is that the Court, again in such proceedings to the judgment of the the Rosier case, drew a distinction between courts of the place in which the property is legal claims directly connected with the situated — that is to say, the Danish letting — in respect of which the courts of courts — is justified precisely having regard the place have exclusive jurisdiction — and to the purpose of Article 16(1)(a). those which have only an indirect nexus with the use of the immovable property, one not justifying the application of Arti- 5 — Case C-294/92 Webb [1994] ECR I-1717, point 18 of the cle 16(1). Now, among disputes directly Opinion. 6 —Judgment in Case 73/77 Sanders [1977] ECR 2383, para- connected with lettings, that judgment graph 17. specifically mentioned those arising in the 7 — Sanders case, cited above, paragraph 15. 8 — Judgment of 9 June 1994 in Case C-292/93 Lieber [1994] ECR I-2535, point 12. The justification for this is that Article 16(1)(a) 'results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain 9 — Judgment in Case 241/83 Rösier v Rottwinkel [1985] cases, results in their being brought before a court which is ECR 99. not that of any of them'. 10 — Rosier case, cited above, paragraph 25.

The present case is different, however. The In accordance with that case-law, I there- contractual relationship between Dansom- fore consider that the case before the mer and Mr Götz does not have as its referring court falls within the scope of object a range of heterogeneous services of Article 16(1)(a): the claim made by the the kind described in Hacker. The justifica- plaintiff in the main proceedings refers tion for such a relationship — or, more directly to the use of the immovable precisely, the 'function' of the contract — property which has been let, within the consisted principally in guaranteeing to meaning of the judgment in Rosier. And Mr Götz the use of immovable property, this requires that the claim should be dealt even if only for a limited period of time, for with by the courts of the place where the tourist purposes. Besides this main func- immovable property is situated. tion, no provision was made for further services of any other kind, such as to change the character of the contract. The only provisions not directly connected with the use of the immovable property, which 9. Nor do I consider that the solution I the referring court mentions, were the have set forth above can be called in cancellation insurance and the guarantee question on the basis of the Court's judg- against travel costs. These arc, evidently, ment in Hacker. 12In that case, the Court ancillary clauses, having a neutral character excluded the applicability of Article 16(1), in relation to the nature of the contract to by reference to a 'complex contract', in which they are supplementary, and they which the use of immovable property was could be inserted in any contract without no more than a (non-predominant) element thereby affecting its character. in 'a range of services provided in return for a lump sum paid by the customer ...'. 13 Such services — additional to the mere use of the accommodation for a short holiday period — were 'information and advice, where the travel organiser proposes a range of holiday offers, the reservation of accom- Therefore, unlike in the Hacker case, we modation during the period chosen by the have here a contract which is not concerned customer, the reservation of seats in con- with the provision of a complex range of nection with travel arrangements, the services but only with the use of immovable property in return for payment. And this is the typical purpose of a lease, within the meaning of Article 16(1)(a) of the Conven- 11 — Paragraph 29. My italics. 12 — Case C-280/90 Hacker v Euro-Relais [1992] UCR I-1111. tion, as interpreted by the Court's case-law. That case was referred to in support of the argument excluding the applicability, to the case under considera- tion, of Article 16(1 )(a) of the Convention. 13 — Paragraph 15. 14 — Paragraph 14.

10. Finally, I do not consider that the mere whom that protection is not justified.' 17 In fact that Dansommer is not the owner of other words, 'the Convention protects the the immovable property in question can consumer only in so far as he personally is exclude the applicability of Article 16(1) of the plaintiff or defendant in proceedings.' 18 the Convention. As the referring court explains, Dansommer is acting in the main proceedings following its subrogation to the rights of the owner: that means that it is subrogated to the legal position of the holder of the rights in rem and exercises them in legal proceedings as if it were the owner. In other words, the subrogation does not alter the nature of the relationship which is the subject of the claim, which However, that reasoning cannot be applied remains unaltered, apart from the substitu- in this case. The special jurisdiction under tion of parties which it has brought about. Article 16 is not, in fact, inspired by any personal favour towards the holder of the right in rem in immovable property. It is, rather, justified by an objective require- ment: that of assigning proceedings in respect of rights in rem in immovable property and the letting of immovable property to the courts in the best position, The judgment of the Court in the Shearson by reason of their territorial proximity, to Lehman Hutton 15 case does not, in my ensure that the matter is dealt with. In opinion, affect this conclusion. In that case, other words, the aim is to have a rational the issue was whether the special rules division of jurisdiction, giving preference to provided for by Article 13 et seq. of the the forum rei sitae in order to ensure 'a Convention, in respect of contracts entered proper administration of justice.' And this into by consumers, could be invoked by a is still the requirement — and must, there- company which could not be classified as a fore, be satisfied — regardless whether the consumer, but which simply acted in the proceedings are brought directly by the capacity of assignee of the rights of a owner or by some other person subrogated consumer. The Court, quite rightly, exclu- to his rights. ded this possibility, pointing out that the Convention had 'the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party.' 16 It held, on that basis, that 'the protective role fulfilled by those provisions implies that the application of the rules of special jurisdic- tion laid down to that end by the Conven- tion should not be extended to persons for

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