Case law Brussels I Regulation (44/2001)


Article 22 of the Brussels I Regulation

(Art. 22 BR I = Art. 16 BC 1968)

 


Property rights in immovable property and lease (tenancies) [Article 22, point 1]


ECJ 28 April 2009 ‘Apostolides v Orams’ (Case C-420/07)

Article 35(1) of the Brussels I Regulation does not authorise a court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its government does not exercise effective control.

In that connection, Article 22 of the Brussels I Regulation contains a mandatory and exhaustive list of the grounds of exclusive international jurisdiction of the Member States. That Article merely designates the Member State whose courts have “jurisdiction ratione materiæ”, but does not allocate jurisdiction within the Member State concerned. It is for each Member State to determine the organisation of its own courts. Furthermore, the principle prohibiting the review of the jurisdiction of the court of the Member State of origin, laid down in Article 35(3) of the Brussels I Regulation, prevents a review of the domestic jurisdiction of the court of the Member State of origin concerned being conducted in the case in the main proceedings. Therefore, the forum rei sitæ rule provided for in Article 22(1) of the Brussels I Regulation concerns the international jurisdiction of the courts of the Member States and not their domestic jurisdiction. It follows that where land is situated in the territory of a Member State and, therefore, that the rule of jurisdiction laid down in Article 22(1) of the Brussels I Regulation has been observed, the fact that the land is situated in an area of that Member State over which the government of that State does not exercise effective control may possibly have an effect on the domestic jurisdiction of the courts of that Member State, but cannot have any effect for the purposes of that regulation (see paras 48-52, operative part 2).


ECJ 18 May 2006 ‘Land Oberösterreich v CEZ’ (Case C-343/04, ECR 2006 p. I-04557)

Article 16(1)(a) of the 1968 Brussels Convention [Article 22, point 1(a), of the Brussels I Regulation] must be interpreted as meaning that an action which seeks to prevent a nuisance affecting or likely to affect land belonging to the applicant, caused by ionising radiation emanating from a nuclear power station situated on the territory of a neighbouring State to that in which the land is situated, does not fall within the scope of that provision. The exclusive jurisdiction of the courts of the Contracting State [Member 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 1968 Brussels Convention [the Brussels I Regulation] and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest. By contrast, if the basis of an action for cessation of a nuisance, possibly preventive in nature, is the interference with a right in rem in immovable property, such an action does not constitute a dispute having as its object rights in rem in immovable property, as the real and immovable nature of that right is, in this context, of only marginal significance. Therefore, the real and immovable nature of the right at issue does not have a decisive influence on the issues to be determined in the dispute in the main proceedings, which would not have been raised in substantially different terms if the right whose protection is sought against the alleged nuisance were of a different type, such as, for example, the right to physical integrity or a personal right.

Finally the considerations of sound administration of justice which underlie Article 16(1)(a) [Article 22, point 1(a), Regulation] are not applicable in such an action and do not, therefore, preclude such an action from remaining outside the scope of that provision (see paras 27, 30-31, 34-35, operative part).


ECJ 13 October 2005 ‘Klein v Rhodos Management’ (Case C-73/04, ECR 2005 p. I-08667)

Article 16(1)(a) of the 1968 Brussels Convention [Article 22, point 1(a), of the Brussels I Regulation] must be interpreted as meaning that it does not apply to a club membership contract which, in return for a membership fee which represents the major part of the total price, allows members to acquire a right to use on a time-share basis immovable property of a specified type in a specified location and provides for the affiliation of members to a service which enables them to exchange their right of use (see para. 28, operative part).


ECJ 5 April 2001 ‘Gaillard v Chekili’ (Case C-518/99, ECR 2001 p. I-02771)

An action for rescission of a contract for the sale of land and consequential damages is not within the scope of the rules on exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property under Article 16(1) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation].


ECJ 27 January 2000 ‘Dansommer v Götz’ (Case C-8/98, ECR 2000 p. I-00393)

The rule laid down in Article 16(1)(a) of the 1968 Brussels Convention [Article 22, point 1(a) of the Brussels I Regulation], conferring exclusive jurisdiction in proceedings having as their object tenancies of immovable property is applicable to an action for damages for taking poor care of premises and causing damage to accommodation which a private individual had rented for a few weeks' holiday, even where the action is not brought directly by the owner of the property but by a professional tour operator from whom the person in question had rented the accommodation and who has brought legal proceedings after being subrogated to the rights of the owner of the property.

The ancillary clauses relating to insurance in the event of cancellation and to guarantee of repayment of the price paid by the client, which are contained in the general terms and conditions of the contract concluded between that organiser and the tenant, and which do not form the subject of the dispute in the main proceedings, do not affect the nature of the tenancy as a tenancy of immovable property within the meaning of that provision of the Convention [Regulation].


ECJ 9 June 1994 ‘Lieber v Göbel’ (Case C-292/93, ECR 1994 p. I-02535)

A claim for compensation for use of a dwelling after the annulment of a transfer of ownership is not included in the matters governed by Article 16(1) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation]. Article 16 [Article 22 Regulation] must not be given a wider interpretation than is required by its objective, since it results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, in their being brought before a court which is not that of any of them. The fact that the compensation payable is to be calculated according to the principles governing tenancies does not justify the application of Article 16(1) [Article 22, point 1, Regulation] to a situation where no tenancy is involved, since where there is no relationship of landlord and tenant, which is governed by special legislative provisions, some of a mandatory nature, of the State where the immovable property which is the subject of the lease is situated, the reasons, relating to the complex nature of that relationship and the interest of the State in which the property is situated in ensuring that those provisions are complied with, which justify the exclusive jurisdiction conferred by that provision on the courts of that State in cases concerning tenancies do not apply.


ECJ 17 May 1994 ‘Webb v Webb’ (Case C-294/92, ECR 1994 p. I-01717)

In order for Article 16(1) of the 1968 Brussels Convention [Article 2, point 1, of the Brussels I Regulation] to apply, it is not sufficient that a right in rem in immovable property be involved in the action or that the action have a link with immovable property: the action must be based on a right in rem and not on a right in personam, save in the case of the exception concerning tenancies of immovable property. It follows that an action for a declaration that a person holds immovable property as trustee and for an order requiring that person 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 Convention [Article 22, point 1, of the Regulation].


ECJ 26 February 1992 ‘Hacker v Euro-Relais’ (Case C-280/90, ECR 1992 p. I-01111)

Article 16(1) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation] is to be interpreted as not applying to a contract concluded in a Contracting State [Member State] whereby a business organizing travel with its seat in that State undertakes to procure for a client domiciled in the same State the use for several weeks of holiday accommodation not owned by it in another Contracting State [Member State], and to book the travel arrangements. A complex contract of that type, which concerns a range of services provided in return for a lump sum paid by the customer, is outside the scope within which the exclusive jurisdiction laid down in Article 16(1) [Article 22, point 1, Regulation] finds its raison d'être and cannot constitute a "tenancy agreement" within the meaning of that provision.


ECJ 10 January 1990 'Reichert v Dresdner Bank' (Case C-115/88, ECR 1990 p. I-00027)

The concept of 'proceedings which have as their object rights in rem in immovable property', mentioned in Article 16(1 ) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation], must be given an independent interpretation. It encompasses only those actions concerning rights in rem in immovable property which both come within the scope of the 1968 Brussels Convention [the Brussels I Regulation] and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with the protection of the powers which attach to their interest. It does not apply to an action whereby a creditor seeks to have a disposition of a right in rem in immovable property rendered ineffective as against him on the ground that it was made in fraud of his rights by his debtor.


ECJ 6 July 1988 'Scherrens v Maenhout' (Case 158/87, ECR 1988 p. 03791)

Article 16(1) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation] must be interpreted as meaning that, in a dispute as to the existence of a lease relating to immovable property situated in two Contracting States [Member States], exclusive jurisdiction over the immovable property situated in each Contracting State [Member State] is, in principle and subject to special cases in which the particular disposition of the property may necessitate a different solution, held by the courts of that State.


ECJ 15 January 1985 'Rösler v Rottwinkel' (Case 241/83, European Court reports 1985 p. 00099)

1. Article 16(1) of the 1968 Brussels Convention [Article 22, point 1, of the Brussels I Regulation] applies to all lettings of immovable property, even for a short term, and even where they relate only to the use and occupation of a holiday home.

2. All disputes concerning the obligations of the landlord or of the tenant under a tenancy, in particular those concerning the existence of tenancies or the interpretation of the terms thereof, their duration, the giving up of possession to the landlord, the repairing of damage caused by the tenant or the recovery of rent and of incidental charges payable by the tenant, such as charges for the consumption of water, gas and electricity, fall within the exclusive jurisdiction conferred by Article 16(1) of the Convention [Article 22, point 1, of the Regulation] on the courts of the State in which the property is situated. On the other hand, disputes which are only indirectly related to the use of the property let, such as those concerning the loss of holiday enjoyment and travel expenses, do not fall within that exclusive jurisdiction.


ECJ 15 November 1983 'Duijnstee v Goderbauer' (Case 288/82, ECR 1983 p. 03663)

Article 19 of the 1968 Brussels Convention [Article 25 of the Brussels I Regulation] requires the national court to declare of its own motion that it has no jurisdiction whenever it finds that a court of another Contracting State [Member State] has exclusive jurisdiction under Article 16 of the Convention [Article 22 of the Regulation], even in an appeal in cassation where the national rules of procedure limit the court's reviewal to the grounds raised by the parties.


ECJ J 14 December 1977 'Sanders v Van der Putte' (Case 73-77, ECR 1977 p. 02383)

The assignment, in the interests of the proper administration of justice, of exclusive jurisdiction to the courts of one Contracting State [Member State]in accordance with Article 16 of the 1968 Brussels Convention [Article 22 of the Brussels I Regulation] 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 them. Having regard to that consideration the provisions of Article 16 [Article 22 Regulation] must not be given a wider interpretation than is required by their objective. Therefore, the concept of ‘matters relating to . . . tenancies of immovable property' within the context of Article 16 of the Convention [Article 22 of the Regulation] must not be interpreted as including an agreement to rent under a usufructuary lease a retail business (verpachting van een winkelbedrijf ) carried on in immovable property rented from a third person by the lessor. The fact that there is a dispute as to the existence of such an agreement does not affect the reply given as regards the applicability of Article 16 of the Convention [Article 22 of the Regulation].

 


Validity or the dissolution of legal persons (companies, associations) or the decisions of their organs [Article 22, point 3]


ECJ 2 October 2008 ‘Hassett and Doherty v Health Board’ (Case C-372/07, ECR 2008 p. I-07403)

Point 2 of Article 22 of the Brussels I Regulation (No 44/2001) is to be interpreted as meaning that proceedings in the context of which one of the parties alleges that a decision adopted by an organ of a company has infringed rights that it claims under that company’s Articles of Association do not concern the validity of the decisions of the organs of a company within the meaning of that provision.

In order for point 2 of Article 22 of the Regulation to apply, it is not sufficient that a legal action involve some link with a decision adopted by an organ of a company. The essential objective pursued by the exception to the general rule of jurisdiction established by that provision, whereby exclusive jurisdiction is attributed to the courts of the Member State in which a company has its seat, is one of centralising jurisdiction in order to avoid conflicting judgments being given as regards the existence of a company or as regards the validity of the decisions of its organs. If all disputes involving a decision by an organ of a company were to come within the scope of that article, that would mean that all legal actions brought against a company – whether in matters relating to a contract, or to tort or delict, or any other matter – would almost always come within the jurisdiction of the courts of the Member State in which the company has it seat.

Moreover, such an interpretation would make the exceptional jurisdiction established by point 2 of Article 22 of the Regulation applicable in the case of disputes which would not give rise to conflicting judgments as regards the validity of the decisions of the organs of a company and also in the case of disputes which do not require any examination of the publication formalities applicable to a company. Such an interpretation would thus have the effect of extending the scope of point 2 of Article 22 of the Brussels I Regulation beyond what is required by its objective. It follows that the scope of application of that provision covers only disputes in which a party is challenging the validity of a decision of an organ of a company under the company law applicable or under the provisions governing the functioning of its organs, as laid down in its Articles of Association (see paras 19-20, 22-26, operative part).

 


Registration or validity of patents, trade marks, designs or similar rights [Article 22, point 4]


ECJ 13 July 2006 ‘Gesellschaft für Antriebstechnik’ or 'GAT' (Case C-4/03, ECR 2006 p. I-06509)

Article 16(4) of the 1968 Brussels Convention [Article 22, point 4, of the Brussels I Regulation] is to be interpreted as meaning that the rule of exclusive jurisdiction laid down therein concerns all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection. First, to allow a court seised of the main action relating to a patent, such as an action for infringement or for a declaration that there has been no infringement, to establish, indirectly, the invalidity of the patent at issue would undermine the binding nature of the rule of jurisdiction laid down in that article and would circumvent its mandatory nature. Second, the possibility which this offers would have the effect of multiplying the heads of jurisdiction and would be liable to undermine the predictability of the rules of jurisdiction laid down by the Convention [Regulation], and consequently to undermine the principle of legal certainty, which is the basis of the Convention [Regulation]. Finally, to allow, within the scheme of the Convention [Regulation], decisions in which courts other than those of a State in which a particular patent is issued rule indirectly on the validity of that patent would also multiply the risk of conflicting decisions which the Convention [Regulation] seeks specifically to avoid. (see paras 26-29, 31, operative part).


ECJ 15 November 1983 'Duijnstee v Goderbauer' (Case 288/82, ECR 1983 p. 03663)

The term 'proceedings concerned with the registration or validity of patents', contained in Article 16(4) of the 1968 Brussels Convention [Article 22, point 4, of the Brussels I Regulation], must be regarded as an independent concept intended to have uniform application in all the Contracting States [Member States]. The term 'proceedings concerned with the registration or validity of patents' does not include a dispute between an employee for whose invention a patent has been applied for or obtained and his employer, where the dispute relates to their respective rights in that patent arising out of the contract of employment.

 


Enforcement of judgments [Article 22, point 5]


ECJ 26 March 1992 ‘Reichert c.s. v Dresdner Bank’ (Case C-261/90, ECR 1992 p. I-02149)

Article 16(5) of the 1968 Brussels Convention [Article 22, point 5, of the Brussels I Regulation] confers exclusive jurisdiction on the courts of the place in which the judgment has been or is to be enforced to deal with proceedings which may arise from recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments. An action such as the action paulienne, by which the creditor seeks to obtain the revocation with regard to himself of the transaction whereby the debtor has effected a disposition in fraud of the creditor's rights and which therefore seeks to protect whatever security the creditor may have with a view to a subsequent enforcement of the obligation of his debtor, is not intended to obtain a decision in such proceedings and does not therefore come within the scope of that provision.


ECJ 4 July 1985 'Autoteile Service v Malhé' (Case 220/84, ECR 1985 p. 02267)

Applications to oppose enforcement, as provided for under paragraph 767 of the German Code of Civil Procedure, fall, as such, within the jurisdiction provision contained in article 16(5) of the 1968 Brussels Convention [Article 22, point 5, of the Brussels I Regulation]; that provision does not, however, make it possible, in an application to oppose enforcement made to the courts of the Contracting State [Member State] in which enforcement is to take place, to plead a set-off between the right whose enforcement is being sought and a claim over which the courts of that State would have no jurisdiction if it were raised independently.