The Brussels I Regulation (No 44/2001)


Section 6 (of Chapter II) Exclusive jurisdiction

Section 6 of Chapter II of the Brussels I Regulation only includes one Article. That provision – Article 22 BR I - lists the circumstances in which the Member States recognize that the courts of one of them have exclusive jurisdiction, locking out jurisdiction for the courts of all other Member States. So, if the pre-conditions for one of the rules of Article 22 BR I are fulfilled, that rule shall designate the Member State whose courts may accept the lawsuit to the exclusion of any other court within the European Union. As a consequence, the plaintiff may not sue before the courts of any other Member State, for instance the one in which the defendant is domiciled as in the case of the matters covered by Articles 2, 5 and 6 BR I. Where such claim is filed at the courts of a wrong Member State, the seised court must decline jurisdiction.

This even applies where the defendant is not domiciled within the European Union, which means that Article 4 BR I is not applicable in the event of a dispute covered by Article 22 BR I. This brings along as well that, even when the defendant is domiciled in a third State, the plaintiff is allowed to sue him before the courts of a Member State, although this can only be the courts of the Member State vested with the relevant exclusive jurisdiction (Evrigenis nr. 90). In view of the reasons for laying down rules of exclusive jurisdiction it was necessary to provide for their general application even in respect of defendants domiciled outside the European Union who are called to court in a Member State. Where a Belgian court normally, on the basis of Article 4 BR I, could have accepted a case against a defendant from Argentina because Belgian national law recognizes jurisdiction of the courts of a Belgian plaintiff in actions against foreigners, it must turn down the lawsuit if it concerns a right in rem in immovable property located, for example, in Germany, since such dispute falls within the scope of Article 22 BR I. Only the German courts have jurisdiction (Jenard No C 59/34). On the other hand, the courts of Germany may accept such case against the Argentinean defendant, even when no rule of national law would provide this possibility otherwise. From Article 22 BR I follows that a defendant who is domiciled outside the European Union, may be sued before a court of a EU Member State when the dispute falls within the scope of Article 22 BR I and the case is brought to the court designated by that Article.

The Brussels I Regulation confirms in several other Articles the characteristics of exclusive jurisdiction as regulated in Article 22 BR I. The rules for exclusive jurisdiction of Article 22 BR I cannot be departed from by agreement between the parties (Article 23 BR I), nor by an implied submission to jurisdiction (Article 24 BR I). A court before which the main proceedings in a dispute are brought must decline jurisdiction of its own motion if exclusive jurisdiction vests in the courts of another Member State (Article 25 BR I). And judgments will not be recognised if they conflict with the provisions on exclusive jurisdiction (Article 35 BR I), and may therefore neither be declared enforceable by a court of a Member State where enforcement is sought (Article 45 BR I) (Pocar nr. 91).

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Article 22 of the Brussels I Regulation

Index Article 22



Exclusive jurisdiction [Article 22 BR I] Case law

Article 22
The following courts shall have exclusive jurisdiction, regardless of domicile:
(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State;
(2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;
(3) in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept;
(4) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place. Without prejudice to the jurisdiction of the European Patent Office under the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each Member State shall have exclusive jurisdiction, regardless of domicile, in proceedings concerned with the registration or validity of any European patent granted for that State;
(5) in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.

Article 22 BR I lists a few particular disputes and affixes the courts of one single Member State to it. The courts of that Member State are deemed to be the only ones allowed to give a judgment on the matter, a rule that has to be recognized by the courts of all other Member States (and EFTA-States). Article 22 BR I, however, does not indicate which court within the designated Member State is exclusively competent. It merely points out the relevant Member State and leaves it up to the national law of procedure of that State to point at the type of court and the territory where a legal claim covered by Article 22 BR I has to be brought (ECJ 28 April 2009 ‘Apostolides v Orams’, Case C-420/07).

The rules of Article 22 BR I, that take as criterion the subject-matter of the action, all relate to the special closeness between the court and the type of situation. In these situations the sound administration of justice suggests that exclusive jurisdiction should be conferred on the courts that are best placed to consider the dispute and to apply the local rules and customs. This is, for instance, the case with regard to disputes over rights in rem in immovable property or over tenancies of immovable property. The courts of the Member State where that immovable property is located, have jurisdiction to the exclusion of the courts of any other Member State and may (must) accept the lawsuit irrespective of the domicile of the plaintiff and of the defendant, even when that is to be found outside the European Union. The same has to be said for proceedings which have as their object the validity of the constitution (incorporation), the nullity or the dissolution of companies or other legal persons, or the validity of the decisions of their organs. Such disputes may be heard only by the courts of the Member State in which that company, legal person or association has its seat. Where the dispute concerns the validity of entries in public registers, the courts of the Member State in which that register is kept are best equipped to consider all legal and formal implications, so that they are the only ones authorised to give a ruling. Courts of other Member States may not interfere. In respect of disputes over the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for or has taken place shall have exclusive jurisdiction. Finally, in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced, is the only one that may accept the lawsuit, which, of course, is a very logical starting point.

The list of disputes mentioned in Article 22 BR I is exhaustive. The Brussels I Regulation does not permit to enlarge the effect of exclusive jurisdiction to other matters by means of an analogous interpretation or comparable legal analysis on behalf of disputes that look similar to those listed in Article 22 BR I. The European Court has frequently expressed that Article 22 BR I 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 (ECJ 9 June 1994 ‘Lieber v Göbel’, Case C-292/93 and ECJ J 14 December 1977 'Sanders v Van der Putte', Case 73-77). This means that the seised court of a Member State, in answering the question whether the involved dispute comes within reach of Article 22 BR I (so that the court must decline jurisdiction or, contrary, may accept the case because it is not subject to exclusive jurisdiction), must unravel the various elements of the legal claim precisely, and this in accordance with the rules and objective of Article 22 BR I. It may not ignore the applicability of Article 22 BR I when it thinks it is practical to give a judgement as well on an element of the claim that is covered by that Article, and it may not work towards a wanted outcome by interpreting the facts and legal questions in such a way that Article 22 BR I comes in sight or, if sought, remains out of the picture. European law has to be applied strictly, and certainly where it concerns Article 22 BR I. It is thought, however, that Article 22 BR I only applies where the claim principally deals with one of the matters listed in that Article and not where the claim merely involves one of these matters as a preliminary question (Jenard. p. 125). But when that preliminary question has to be answered, because otherwise no sound responds can be given on the principal claim, this might be different. A court of a Member State that would answer such preliminary question anyhow could, in the end, render a judgment in conflict with the decision of the courts of the Member State that have exclusive jurisdiction over the issue on which the preliminary question is based. It is not allowed to do so (ECJ 13 July 2006 ‘Gesellschaft für Antriebstechnik’ or ‘GAT’ (Case C-4/03). Therefore, it must stay proceedings and refer parties with regard to that issue to the courts of the Member State that pursuant to Article 22 BR I are exclusively competent to give a decision on the matter that is the subject of the preliminary question. Of course, this is relevant only when the preliminary question is of influence directly on the result of the principal claim.

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Rights in rem in immovable property [Article 22(1) BR II] Case law

Under Article 22, point (1), BR I, just the courts of the Member State in which the immovable property is situated have jurisdiction in proceedings concerning rights in rem in immovable property (or tenancies of such property). As already pointed out in the Jenard-Möller Report (nr. 54), Article 22, point (1), BR I applies only if the immovable property is situated in the territory of a Member State. The text is sufficiently explicit on this point. If the property is situated in the territory of a third State, the other provisions of the Brussels I Regulation apply, e.g. Articles 2, 5 and 6 BR I if the defendant is domiciled in the territory of a Member State, and Article 4 BR I if he is domiciled in the territory of a third State.

A number of considerations have led to the provision of exclusive jurisdiction in proceedings concerning rights in rem in immovable property. In some Member States, according to their domestic law on national jurisdiction, the court for the place where the immovable property is situated, has exclusive jurisdiction, this being considered a matter of public policy. It follows that, in the absence of a rule of exclusive jurisdiction in the Brussels I Regulation that is in line with these rules of national jurisdiction, judgments could be given in other Member States by courts whose jurisdiction might have been derived from other provisions of the Regulation (i.e. the court of the defendant’s domicile, or an agreed forum). These judgments, however, could have been neither recognized nor enforced in the first meant Member States as being contrary to their public policy. Such a system would have been contrary to the principle of 'free movement of judgments’.

It was felt also in the interest of a proper administration of justice to lead disputes over these matters to the courts of the Member State were the immovable property is situated. This type of dispute often entails checks, enquiries and expert examinations which have to be made on the spot. Moreover, the matter is frequently governed in part by customary practices which are not generally known, except in the courts of the place, or possibly of the country, where the immovable property is located. Finally, the adopted system also takes into account the necessity to apply mandatory rules of national law which are ultimately effective to the property and the need to make entries in land registers located where the property is situated.

It should be observed that Article 22, point (1), BR I only grants exclusive jurisdiction in respect of proceedings which have as their principal object rights in rem in immovable property (except where it concerns tenancies of immovable property). The concept of 'proceedings which have as their object rights in rem in immovable property' must be given an independent interpretation. It does not encompass all actions concerning rights in rem in immovable property, but only those 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. In the end the considerations of sound administration of justice which underlie Article 22, point (1), BR I are not applicable in such an action and do not, therefore, preclude such an action from remaining outside the scope of that provision (ECJ 18 May 2006 ‘Land Oberösterreich v CEZ’ (Case C-343/04). For the same reasons, Article 22, point (1), BR I 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 10 January 1990 'Reichert v Dresdner Bank', Case C-115/88).

Merely personal rights (claims) never fall within the scope of Article 22, point (1), BR I, not even when they directly or indirectly relate to (the use of) immovable property or even to (the acquisition) of the ownership thereof. To this point a distinction has to be made between rights in rem in immovable property on the one hand and, on the other hand, personal rights (claims) that can be exercised solely against a specific person (seller) and that relate to the use or transfer of immovable property. Such personal rights (claims) do not (yet) represent a right in rem in the immovable property itself. Unless such claims may be qualified as tenancy, they are not touched by the rule of exclusive jurisdiction of Article 22, point (1) BR I.

The problem, though, is that within the legal system of the various EU Member States different rules apply for the acquisition of rights in rem in immovable property. If an action relating to immovable property is brought in a particular Member State and the question arises whether the action relates to a right rem within the meaning of Article 22, point (1), BR I, then the answer can hardly be derived from any law other than that of the situs, thus the law of the State where that immovable property is situated. That law determines whether the object of the dispute concerns (already) a right in rem in immovable property, or just a claim or another right that is related to such immovable property but that is not constituting a right in rem in itself. Dutch property law, for example, distinguishes clearly between the claim (personal right) which the buyer derives from the sale contract that is entered into in respect of immovable property, and the acquisition of a right in rem in that property, like the right of ownership thereof. Ownership can be acquired only after a notarial deed of transfer has been drawn up and has been registered in the public registers for immovable property. Although the sale contract compels the seller to cooperate in these transfer formalities, the buyer still only has a claim to be exercised solely against this specific seller as long as no transfer has taken place. Consequently, until the transfer, therefore during the period between the conclusion of the sale contract and the registration of the notarial transfer deed in the public registers, the buyer has not acquired any right in rem in the bought immovable thing yet. This means that, where the object of the proceedings is such a claim (personal right), it is not governed by Article 22, point (a), BR I. Other criteria, laid down in the Brussels I Regulation, like Article 2 and Article 5 BR I, determine in which Member State a court may or must be seised to settle the dispute. Where parties have made a valid choice of forum, for instance in the sale contract, the courts of the Member States have to acknowledge that preference. This could implicate that another court than the courts of the Member State where the immovable property is situated, has jurisdiction. Only when the parties disagree with regard to the question who has the right of ownership (or another real property right) of an immovable thing or whether the transfer of property has been performed effectively (for instance because one of them argues that the transfer is null and void or voidable or that the required registration has not taken place correctly), Article 22, point (1), BR I steps in. Such a dispute can be heard by no other courts than those of the Member State where the involved immovable property is situated, irrespective of where the defendant is domiciled or where the sale contract was concluded or had to be performed and irrespective of the fact whether the parties themselves have conferred jurisdiction on a specific court by mutual agreement. The courts of all other Member State must decline jurisdiction when the matter is governed by Article 22, point (1), BR I. Nevertheless, the Brussels I Regulation has no importance when parties have chosen – in the sale contract or afterwards – to settle any possible dispute in regard of a right in rem in the immovable property by arbitration. In that case, of course, neither Article 22 BR I will assert any exclusive jurisdiction.

In his explanatory report, Schlosser provides a summary of the variations which may be encountered in the different Member States in respect of the various real and personal property rights related to immovable property. As Schlosser elaborates, the concept of a right in rem as distinct from a right in personam is common to the legal systems of the continental Member States of the European Union, even though the distinction does not appear everywhere with the same clarity. A right in personam can only be exercised against a particular person; thus only the purchaser is obliged to pay the purchase price and only the lessor of a good is obliged to permit its use. A right in rem, on the other hand, is available against the whole world. The most important legal consequence 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 up by anyone not enjoying a prior right or title. It has ‘real effect’.

In the legal systems of all the continental Member States of the European Union, without exception, there are only a restricted number of rights in rem even though they do not rigidly apply the principle. Some rights in rem are defined only in outline with freedom for the parties to agree the details. The typical rights in rem are usually listed under easily identifiable heads of the civil law, which in most European countries are codified. In addition, a few rights in rem are now and then included in some special laws, the most important of which are those on the co-ownership of real property. Apart from ownership as the most comprehensive right in rem, a distinction can be made in all Member States between certain rights of enjoyment and certain priority rights to secure liabilities. All the legal systems know the concept of usufruct, which confers extensive rights to enjoyment of a property. More restricted rights of enjoyment can also exist in these legal systems in various ways.

At first glance, in the private law of the United Kingdom and Ireland there appears to be as well a small, strictly circumscribed group of statutory rights corresponding to the continental rights in rem. However, the position is more complicated than it seems, because these legal systems distinguish between law and equity. In this connection it has always to be borne in mind that equity also constitutes law and not something merely akin to fairness lying outside the concept of law. As a consequence of these special concepts of law and equity in the United Kingdom and in Ireland, equitable interests can exist in immovable property in addition to the legal rights. In the United Kingdom the system of legal rights has its origin in the idea that all land belongs to the Crown and that the citizen can only have limited rights in immovable property. This is the reason why the term 'ownership' does not appear in its law of immovable property. However, the estate in fee simple absolute in possession is equivalent to full ownership under the continental legal systems. In addition the Law of property Act 1925 and 1989 provides for full ownership for a limited period of time ('term of years absolute’). The same Act limits restricted rights in immovable property ('interests or charges in or over land') to five. All the others are equitable interests, whose number and content are not limited by the Act. Equitable interests are not, however, merely the equivalent of personal rights on the Continent. Some can be registered and then, like real property rights, have universal effect, even against purchasers in good faith. Even if not registered they operate in principle against all the world. Only purchasers in good faith who had no knowledge of them are protected in such a case. If the ‘owner’ of an estate in fee simple absolute in possession grants another person a right of way over his property for the period of that person’s life, this cannot amount to a legal right. It can only be an equitable interest, though capable of registration. Equitable interests can thus fulfil the same functions as rights in rem under the Continental legal systems, in which case they must be treated as such under Article 22, point (a), BR I. There is no limit to the number of such interests. The granting of equitable interests is on the contrary the method used for achieving any number of subdivisions of proprietary rights (Schlosser nr. 166-167).

The legal systems of the continental Member States and of the United Kingdom and Ireland also differ as regards the manner in which ownership of immovable property is transferred on sale. Admittedly the legal position even within the continental Member States differs in this respect. German law distinguishes most clearly between the transfer itself and the contract of sale (or other contract designed to bring about transfer). The legal position in the case of immovable property is no different from that obtaining in the case of movable property. The transfer is a special type of legal transaction which in the case of immovable property is called Auflassung (conveyance) and which even between the parties becomes effective only on entry in the land register. Where a purchaser of German immovable property brings proceedings on the basis of, a 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 hand over the property. If one of the parties fails to fulfil its obligations under a contract for sale of immovable property, the remedy in German law is not a court order for rescission, but a claim for damages and the right to rescind the contract. Admittedly it is possible with the vendor consent to protect the contractual claim for a transfer of ownership by means of a caution in the land register. In that case the claim has, as against third parties, effects which normally only attach to a right in rem. The consequence for German domestic law is that nowadays rights secured by such a caution may be claimed against third parties in the jurisdiction competent to deal with the property concerned. However, any proceedings for a transfer of ownership against the vendor himself would remain an action based on a personal obligation. In the Netherlands this system applies in the same way.

Under French law, which is largely followed by Italian law, the ownership, at any rate as between the parties, passes to the purchaser as soon as the contract of sale is concluded, just as it does in the case of movable property, unless the parties have agreed a later date (see e.g. Article 711 and 1583 of the French Civil Code and Article 1376 of the Italian Civil Code). The purchaser need only enter the transfer of ownership in the land register transcription to acquire a legal title which is also effective against third parties. For the purchaser to bring proceedings for performance of the contract is therefore normally equivalent to a claim that the property be handed over him. Admittedly this claim is based not only on the obligation which the vendor undertook by the contract of sale, but also on ownership which at that point has already passed to the purchaser. This means that the claim for handing over the property has as its basis both personal obligation and a right in rem. The system of remedies which is available in the event of one party to a contract not complying with its obligations is fully in accordance with this. Accordingly, French domestic law has treated such actions as a 'matiere mixte' and given the plaintiff the right to choose between the jurisdiction applicable to the right in rem and the jurisdiction applicable to the personal obligation arising from the contract, i.e. the law of the defendant's domicile or of the place of performance of the contract. The Brussels I Regulation does not deal with this problem. It would seem that the personal aspect of such claims predominates and Article 22, point (1), is inapplicable.

In the United Kingdom ownership passes on the conclusion of a contract of sale only in the case of movable property. In the case of a sale of immovable property the transfer of ownership follows the conclusion of the contract of sale and is effected by means of a separate document, the conveyance. If necessary, the purchaser has bring an action for all necessary acts to be performed by the vendor. However, except in Scotland, in contrast with German law, the purchaser rights prior to the transfer of ownership are not limited to a personal claim against the vendor. In fact the purchaser has an equitable interest in the property which provided the contract protected by a notice on the Land Register, is also effective against third parties. Admittedly paragraph (6) of Article 5 BR I does not apply, because a contract of sale does not create a trust within the meaning of that provision, even if it is in writing. It is only in one respect that a purchaser’s equitable interest does not place him in as strong a position as the French owner of immovable property prior to 'transcription': the vendor cooperation, is still required to make the new owner s legal title fully effective.

This legal position would justify application of the exclusive jurisdiction referred to in Article 22, paragraph (1), BR I even less than the corresponding position under French law. The common law has developed the concept of equitable interests so as to confer on parties to an agreement which originally gave them nothing more than merely personal rights a certain protection as against third parties not acting in good faith. As against the other party to the contract the claim remains purely a personal one, as does a claim, under German law, to transfer a right of ownership, secured by a caution in the Land Register. In Scotland contracts in favour of a third party are enforceable by that party (jus quaesitum tertii).

Actions based on contracts for the transfer of ownership or the conveyance or creation of other rights in rem affecting immovable property do not therefore have as their object rights rem within the meaning of Article 22, point (1), BR I. Accordingly they may also be brought before courts outside the United Kingdom. Admittedly, care will have to exercised in that case to ensure that the plaintiff clearly specifies the acts to be done by the defendant so that the transfer of ownership (governed by United Kingdom law) does indeed become effective (Schlosser nr. 169 – 177).

In line with these thoughts, the European Court of Justice has ruled that Article 22, point (1), BR I does not cover disputes which merely involve an action that has some link to immovable property, but in reality entail a right in personam (ECJ 17 May 1994 ‘Webb v Webb’, Case C-294/92) or that relate to a claim for the transfer of a usufructuary of immovable property in stead of to the usufruct itself (ECJ J 14 December 1977 'Sanders v Van der Putte', Case 73-77), which last right, of course, is a right in rem. An action for rescission of a contract for the sale of land and consequential damages neither falls within the scope of the rules on exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property under Article 22, point 1, BR I (ECJ 5 April 2001 ‘Gaillard v Chekili’, Case C-518/99). A claim for compensation for use of a dwelling after the annulment of a transfer of ownership, which pursuant to the national law of the State involved forms no tenancy, is not included in the matters governed Article 22 BR I (ECJ 9 June 1994 ‘Lieber v Göbel’, Case C-292/93).

Actions for damages based on infringement of rights in rem or in damage to property in which rights in rem exist are not governed by Article 22, point (1), BR I, because, in that context, the existence and content of such rights in rem, usually rights of ownership, are only of marginal significance (Schlosser nr. 163; see also ECJ 18 May 2006 ‘Land Oberösterreich v CEZ’, Case C-343/04). Article 22, point (1), BR I neither seems to cover claims against any person in possession (actiones in rem scriptae) (Evrigenis nr. 60). And Article 22, point (1), BR I 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 (ECJ 13 October 2005 ‘Klein v Rhodos Management’, Case C-73/04).

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Tenancies of immovable property [Article 22(1) BR I] Case law

The wording adopted in Article 22, point (1), BR I, covers not only all disputes concerning rights in rem in immovable property within the meaning of this provision, but also those relating to tenancies of such property. The adoption of this provision was dictated too by the fact that tenancies of immovable property are usually governed by special legislation which, in view of its complexity and often mandatory nature, should preferably be applied only by the courts of the country in which it is in force. Moreover several Member States also under their national law provide for exclusive jurisdiction in such proceedings, which is often conferred on special tribunals (Jenard No. C 59/34-35).

In order to qualify as a ‘tenancy’ for the purpose of Article 22 BR I, the principal objective of the contract must be the use of an immovable thing or of a right in such thing. Contracts with another principal objective do not qualify as such. The concept of 'matters relating to tenancies of immovable property' within the context of Article 22, point (1), BR I must not be interpreted as including an agreement to rent under a usufructuary lease a retail business 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 the agreement which forms the subject of the action does not affect the reply given as regards the applicability of Article 22, point (1), BR I (ECJ J 14 December 1977 'Sanders v Van der Putte', Case 73-77). This could be different if the lease contract regarding the retail business would have been concluded directly by the lessee with the owner of the shop and included the use of the retail premises, whereas the dispute mainly concerns the use of the immovable property or the continuation of that use under the contract. Also a complex contract which concerns the provision of a range of services, among which the use of a holiday accommodation, in return for a lump sum paid by the customer, remains outside the scope within which the exclusive jurisdiction laid down by Article 22, point (1), BR I finds its raison d'etre and cannot constitute a "tenancy agreement" within the meaning of that Article. This was, for instance, the case with regard to a contract concluded between a travel organizer and a customer in the place where they are both domiciled and that, in addition to granting use of short-term holiday accommodation, aims at the provision of other services, such as information and advice, where the travel organiser proposes a range of holiday offers, the reservation of accommodation during the period chosen by the customer, the reservation of seats in connection with travel arrangements, the reception at the destination and, possibly, travel cancellation insurance (ECJ 26 February 1992 ‘Hacker v Euro-Relais’, Case C-280/90). Since the use of immovable property was not the principal element of the contract, it does not qualify as tenancy. Such contract, however, may be a consumer consumer contract within the meaning of Article 15, paragraph 1, BR I and perhaps even within the meaning of the second sentence of Article 15, paragraph 3, BR I.

The term ‘tenancy’ includes tenancies of dwellings and of premises for professional or commercial use, and agricultural holdings. If it has been assessed that the dispute involves such a tenancy within the meaning of Article 22, point (1), BR I, that Article has relevance, as it applies to all tenancies of immovable property irrespective of their special characteristics. Therefore, it 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. This, however, does not mean that all disputes based on such a tenancy are governed by the rule of exclusive jurisdiction. Article 22, point (1), BR I intends in this respect to cover disputes between landlord and tenant over the existence or interpretation of tenancy agreements, compensation for damage caused by the tenant, eviction, etc. Leases generally contain terms concerning entry into possession by the tenant, the use to which the property is to be put, the obligations of the landlord and tenant regarding the maintenance of the property, the duration of the lease and the giving up of possession to the landlord, the rent and the incidental charges to be paid by the tenant, such as water, gas and electricity charges. Disputes concerning the obligations of the landlord or of the tenant under the lease come within the ambit of Article 22, point (1) BR I, being ' proceedings which have as their object ‘tenancies of immovable property'. 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 the exclusive jurisdiction conferred by that Article (ECJ 15 January 1985 'Rösler v Rottwinkel' (Case 241/83). .

Initially, according to the explanatory report of Jenard, the rule of exclusice jurisdiction regarding tenancies was not intended to apply to proceedings concerned only with the recovery of rent, since such proceedings could be considered to relate to a subject-matter which was quite distinct from the rented property itself (Jenard No. C 59/34-35). However, departing from the intentions of the authors of the 1968 Convention, the European Court of Justice has ruled afterwards that the exclusive jurisdiction provided for in Article 22, point (1), BR I also applies to proceedings in respect of the payment of rent. It would in fact be contrary to one of the aims of the provision in question, namely the correct application of national legislation on tenancies, to rule out from that exclusive jurisdiction disputes which are, in some Member States at least, governed by special legislation, such as the Italian 'fair rent' legislation (ECJ 15 January 1985 'Rösler v Rottwinkel' (Case 241/83).

The decision of the European Court that Article 22, point (1), BR I also governs disputes in respect of the payment of the rent was welcomed by most scholars, since even Schlosser had his doubts over the initial intention to lock out such proceedings from the scope of Article 22, point (a), BR I (Schlosser nr. 164). But the decision that Article 22, point (1), also applied to short-term tenancies was felt as a result too strict. According to the Schlosser report, the underlying principle of that provision quite clearly does not require its application to short-term agreements for use and occupation such as, for example, holiday accommodation. The reaction to this unwanted effect was the adding of a second sentence to Article 22, point (1), BR I, specifying that in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State. The result of this change is that, where tenancies are concerned, there will be two exclusive jurisdictions, which might be described as alternative exclusive jurisdictions. Under the first sentence of point (1), the courts of the Member State in which the immovable property is situated will always have jurisdiction without restriction, thus also over disputes arising from short-term contracts, like the lease of a holiday apartment, involving two commercial parties, two natural persons or a natural person and an entrepreneur. However, under the second sentence of point (1), in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, which covers particularly holiday lettings, the plaintiff may as well apply to the courts of the Member State in which he and the defendant are domiciled. Therefore, this option is open to him only if the tenant (and not the owner) is a natural person and if, in addition, both contracting parties are domiciled in the same State. The earlier requirement, indicating that neither party was allowed to be domiciled in the Member State in which the immovable property was situated, has been replaced by this new condition (Pocar nr. 94). Only when the natural person rents an immovable property temporarily for private reasons, and not in the conduct of his business or professional practice, he can be regarded as a tenant within the meaning of the before mentioned rule. Legal persons holding tenancies are always excluded from the second sentence since they are generally engaged in commercial transactions (Jenard-Möller, nr. 50-53).

Meanwhile the European Court has ruled that Article 22, point (1) BR I is applicable as well to an action for damages for taking poor care of premises and causing damage to accommodation which a private individual has 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 (ECJ 27 January 2000 ‘Dansommer v Götz’, Case C-8/98). Where the action is brought by the plaintiff due to a partial failure to perform the tenant's obligation to maintain the property let in a proper condition and to repair any damage which he has caused to it, the European Court decided that the subject-matter of the proceedings was directly linked to the leasing contract concerning immovable property and consequently to a tenancy of immovable property within the meaning of that Article, with the result that those proceedings fell within the exclusive jurisdiction rule laid down in that provision. In contrast to the Hacker-case (ECJ 26 February 1992 ‘Hacker v Euro-Relais’, Case C-280/90), the contract at issue concerned exclusively the letting of immovable property. The fact that the accompanying general terms and conditions contained a clause relating to insurance to cover the costs in the event of cancellation, was just an ancillary provision which did not alter the status of the tenancy agreement to which it related, especially since this clause was not in issue before the referring court. The same had to be said about the guarantee of the price paid in advance by the customer in the event of the organiser's insolvency. The fact that the lawsuit against the tenant was not filed by the owner (landlord) himself, but by the tour operator, was neither a reason to ignore Article 22, point (1) BR I, given that the tour operator brought legal proceedings against the tenant after being subrogated to the rights of the owner of the property which was the subject of the lease concluded between the tour operator and the tenant.

Although the payment of the rent falls within the scope of Article 22, point (1) BR I, 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 that Article. Article 22 BR I 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 22, point 1, BR I 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 9 June 1994 ‘Lieber v Göbel’, Case C-292/93).

In a dispute as to the existence of a lease relating to immovable property situated in two Member States, exclusive jurisdiction over the immovable property situated in each 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 6 July 1988 'Scherrens v Maenhout', Case 158/87).

Finally, the question whether and to what extent a time-sharing interest in immovable property should be subject to the exclusive jurisdiction over matters of immovable property has been resolved in accordance with the Community rules and their interpretation by the Court of Justice, without the need for any special provision. Such contracts are regarded as consumer contracts within the meaning of Article 15 BR I, of which the range has been widened by using the words ‘in all other cases’, referring to any contract between a consumer and an entrepreneur. Therefore, such contracts do not fall under Article 22, point (1), BR I, not even when they are concluded between two natural persons and grant, in fact, a right in rem in immovable property (ECJ 13 October 2005 ‘Klein v Rhodos Management’, Case C-73/04).

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Constitution, nullity or dissolution of companies or other legal persons or associations [Article 22(2) BR I] Case law

Article 22, point (2), BR I provides that the courts of the Member State in which a company or other legal person, or an association of natural or legal persons, has its seat, have exclusive jurisdiction in proceedings of which the substance concerns either the validity of the constitution (incorporation), the nullity or the dissolution of the company, legal person or association, or the decisions of its organs. Article 22, point (2), BR I also applies to partnerships established under United Kingdom and Irish law (see Schlosser nr. 55).

It is important, in the interests of legal certainty, to avoid conflicting judgments being given as regards the existence of a company or association or as regards the validity of the decisions of its organs. For this reason, it is obviously preferable that all proceedings should take place in the courts of the State in which the company or association has its seat. It is in that State that information about the company or association will have been notified and made public. Moreover, the rule adopted in point (2) will more often than not result in the application of the traditional ‘maxim actor sequitur forum rei’ (Jenard No C 59/35).

It should be noticed that the term ‘seat’ in Article 22, point (2) BR I does not correspond to the term ‘domicile’ nor to the term ‘statutory seat’ as defined under Article 60 BR I. In the Brussels I Regulation the domicile of a company is in fact defined by reference to the statutory seat, or the central administration or the principal place of business. That definition is an independent one that makes it easier to bring proceedings before a court of a State bound by the Regulation against a company that has some significant link with the States to which the Regulation applies, but it was not felt to be a proper basis for exclusive jurisdiction over disputes in the areas considered here. The jurisdictions referred to in Article 22 BR I are exclusive, and this is difficult to reconcile with a definition of domicile that applies alternative tests, which might create uncertainty surrounding the law applicable to the validity of the constitution of companies. In other words, the ordinary forum for companies can properly be based on a broad concept of domicile, but for the validity of the constitution of companies the concept applied has to be a narrow one, based on just one connecting factor. Nevertheless, Article 22, point (2) BR I simply mentions the word ‘seat’, to be determined by reference to the rules of private international law of the court before which the matter is brought. It should be emphasised, therefore, that the ‘seat’ of the company here is not an independent concept, as the ‘statutory seat’ is in Article 60 BR I. A reference simply to the ‘statutory seat’ might have avoided the possibility that where the ‘statutory seat’ and the real seat were situated in different countries there might be more than one court with supposedly exclusive jurisdiction; but it was decided that for the resolution of that problem the provisions in the Brussels I Regulation on the coordination of jurisdictions would be enough.

The agreed solution will as a rule ensure that 'forum' and 'ius' will coincide, and is motivated by the desirability of ensuring that when the validity of the constitution of a company is at issue there is a single jurisdiction that is predictable and certain. It was pointed out that the desirability of such a jurisdiction was less evident when the dispute was concerned with decisions of a company’s governing bodies. But it was decided to keep the exclusive jurisdiction of the court of the seat of the company here too, on the ground that that court is usually best placed to decide on the validity of such decisions. To prevent the possibility that this jurisdiction might be widened by interpretation, the Brussels I Regulation refers explicitly to the ‘validity’ of decisions, rather than, as in the previous wording, to the ‘decisions’ themselves, thus making it quite clear that the exclusive jurisdiction does not extend to the decisions’ substance or effects (Pocar nr. 96 and 97).

It is necessary to add that a company may have more than one ‘seat’ in the before meant meaning. Where under a legal system it is possible for a company to have two seats, and it is that system which, pursuant to Article 22 BR I, is to determine the seat of the company, the existence of two seats has to be accepted. It is then open to the plaintiff to choose which of the two seats he will use to base the jurisdiction of the court for his action. The same applies when two Member States, on the basis of their national private international law, conclude that the company has a seat in their own State.

The term 'dissolution' in Article 22, point (2), BR I is not to be understood in the narrow technical sense in which it is used in some legal systems on the Continent. It also covers proceedings concerning the liquidation of company after 'dissolution'. These include disputes about the amount to be paid out to a shareholder or a member of an association (or UK partnership). Such proceedings are nothing more than stages on the way towards terminating the legal existence of the company.

If a company established under a continental legal system is dissolved, i.e. enters the stage of liquidation, because it has become insolvent, court proceedings relating to the 'dissolution of the company' are only conceivable as disputes concerning the admissibility of, or the mode and manner of conducting, winding-up proceedings. All this is outside the scope of the Brussels I Regulation. On the other hand all other proceedings intended to declare or to bring about the dissolution of a company are not the concern of the law of winding-up. It is unnecessary to examine whether the company concerned is solvent or insolvent. It also makes no difference if bankruptcy law questions arise as a preliminary issue. For instance, when litigation ensues as to whether a company should be dissolved, because a person who allegedly belongs to it has gone bankrupt, the dispute is not about a matter of bankruptcy law, but of a type which falls within the scope of the Brussels I Regulation. The Regulation also applies if, in connection with the dissolution of a company not involving the courts, third parties contend in legal proceedings that, they are creditors of the company and consequently entitled to satisfaction out of assets of the company (Schlosser nrs. 59-62 and nrs. 162-163).

Disputes arising out of the relationship between a company and its members or shareholders (not mutually forming the General Meeting or another organ of the legal person) and between the members or shareholders themselves fall outside the scope of Article 22, point (2), BR I (Evrigenis nr. 60). Also 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. It is not sufficient that a legal action involves 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 Article 22, point (2), BR I, 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 Article 22, point (2), BR I, 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. 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 (ECJ 2 October 2008 ‘Hassett and Doherty v Health Board’, Case C-372/07).

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Entries in public registers [Article 22(3) BR I]

Article 22, point (3), BR I lays down that the courts of the Member State in which a public register is kept have exclusive jurisdiction in proceedings relating to the validity or effects of entries in that register. This provision does not require a lengthy commentary. It corresponds to the provisions which appear in the internal laws of most of the Member States. It covers in particular entries in land registers, land charges registers and commercial registers.

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Registration of intellectual property rights [Article 22(4) BR I] Case law

Article 22, point (4), BR I applies to proceedings concerned with the registration or validity of patents, trade marks, designs or other similar rights, such as those which protect fruit and vegetable varieties, and which are required to be deposited or registered. Since the grant of a national patent is an exercise of national sovereignty, Article 22, point (4), BR I provides for exclusive jurisdiction in proceedings concerned with the validity of patents. Other actions, including those for infringement of patents, are governed by the general rules of the Brussels I Regulation.

The term 'proceedings concerned with the registration or validity of patents', contained in Article 22, point (4), BR I, must be regarded as an independent concept intended to have uniform application in all the Member States. This concept 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 (ECJ 15 November 1983 'Duijnstee v Goderbauer', Case 288/82).

The expression ‘the deposit or registration has been applied for’ takes into account internal laws which, like German law, make the grant of a patent subject to the results of an examination. Thus, for example, German courts will have exclusive jurisdiction in the case of an application to the competent authorities for a patent to be granted where, during the examination of the application, a dispute arises over the rights relating to the grant of that patent.

The phrase 'is under the terms of (..) an international convention deemed to have taken place' refers to the system introduced by the Madrid Agreement of 14 April 1891 concerning international registration of trade marks, revised at Brussels on 14 December 1900, at Washington on 2 June 1911 , at The Hague on 6 November 1925 and at London on 2 June 1934, and also to the Hague Arrangement of 6 November 1925 for the international registration of industrial designs revised at London on 2 June 1934. Under this system the deposit of a trade mark, design or model at the International Office in Berne through the registry of the country of origin has the same effect in the other Contracting States as if that trade mark, design or model had been directly registered there. Thus where a trade mark is deposited at the International Office at the request of, for instance, the German authorities, the French courts will have exclusive jurisdiction in disputes relating, for example, to whether the mark should be deemed to have been registered in France (Jenard C 59/35-36). It remains to be made clear that Article 22, point (4), BR I also covers actions which national legislation allows to be brought at the patent application stage, so as to reduce the risk of a patent being granted, and the correctness of the grant being subsequently challenged (Schlosser nr. 173).

The original text of the 1968 Brussels Convention has been adjusted later, in view of the fact that, since the 1968 Convention entered into force, two Conventions on patents have been signed which are of the greatest international importance. The Munich Convention on the grant of European patents was signed on 5 October 1973 and the Luxembourg Convention for the European patent for the common market was signed on December 1975, although the latter has never entered into force.

The purpose of the Munich Convention is to introduce a common patent application procedure for the Contracting States, though the patent subsequently granted is national in scale. It is valid for one or more States, its substance in each case being basically that of a corresponding patent granted nationally. The aim of the Luxembourg Convention was to institute in addition a patent granted ab initio for all States of the Community in a standard manner and with the same substance based on Community law. It provided for the grant of a Community patent similar to national patents, but independent of them and with equivalent effects in all Contracting States. Such a patent necessarily remained valid or expired uniformly throughout the EEC. The Luxembourg Convention declared the 1968 Brussels Convention to be applicable to all actions concerning Community patents, while establishing a special jurisdiction for disputes concerning validity and infringement. The Luxembourg Convention, however, never came into force, and therefore no reference has been made to it in the Brussels I Regulation or the 2007 Lugano Convention.

This is different for the Munich Convention which is mentioned explicitly. It contains specific provisions on jurisdiction which take precedence over the Brussels I Regulation. However, the special jurisdiction provisions relate only to specific matters. Article 22, point (4), BR I remains relevant for actions for which no specific provision is made. In the case of European patents under the Munich Convention it would be conceivable that this provision might be construed as meaning that actions must be brought in the State in which the patent was applied for and not in the State for which it is valid and in which it is challenged. The Protocol annexed to the 1968 Convention was designed to prevent this interpretation and to ensure that, without prejudice to the jurisdiction of the European Patent Office, only the courts of the State in which the patent is valid have jurisdiction, unless the Munich Convention itself lays down special provisions. This rule has now been incorporated into Article 22, point (4), BR I.

The European Court has decided the question whether the rule of exclusive jurisdiction over registration or validity of a patent applied irrespective of whether the issue was raised by way of an action or a plea in objection (ECJ 13 July 2006 ‘Gesellschaft für Antriebstechnik’ or ‘GAT’, Case C-4/03). The Court held that it did: in the light of the position and objective of the provision within the scheme of the Brussels Convention, the view had to be taken that the courts of the State of registration of the patent had exclusive jurisdiction ‘whatever the form of proceedings in which the issue of a patent’s validity is raised, be it by way of an action or a plea in objection, at the time the case is brought or at a later stage in the proceedings’. The Court of Justice thus held that where an action was brought for infringement, the court seised could not find indirectly that the patent at issue was invalid, even if the effects of the judgment were limited to the parties to the proceedings, as happened under the national laws of some of the States bound by the Convention. The Court said expressly that the jurisdiction of the courts of a State other than the State that issued the patent to rule indirectly on the validity of a foreign patent could not be limited only to those cases in which, under the applicable national law, the effects of the decision to be given were limited to the parties to the proceedings. In several countries a judgment annulling a patent had effect erga omnes, and a limitation of this kind would lead to distortions, thereby undermining the uniformity of rights and obligations for the States bound by the Convention and for the persons concerned.

In view of that precedent, a court called upon to hear an action for infringement of a patent in which the question arises whether the patent is valid must, unless it has exclusive jurisdiction to decide the validity of the patent under Article 22, paragraph (4), BR I, of its own motion declare that it lacks jurisdiction to determine the point under Article 25 of the Brussels I Regulation (ECJ 15 November 1983 'Duijnstee v Goderbauer', Case 288/82); and depending on the procedures allowed by the national law applicable, it may have to suspend the infringement proceedings, pending judgment by the court with exclusive jurisdiction, before reaching a decision on the substance. Consequently, the wording of Article 22, point (4), BR I has been modified in order to incorporate the GAT ruling of the Court of Justice. See also the Decision of the Council concerning the conclusion of the new Lugano Convention adopted on 27 November 2008 (OJ L 147, 10.6.2009), where the European Community expresses its intention to clarify the scope of Article 22, paragraph (4), of the Brussels I Regulation in the same sense, thereby ensuring its parallelism with Article 22, paragraph (4), of the 2007 Lugano Convention while taking into account the results of the evaluation of the application of the Brussels I Regulation.

The position adopted by the Court of Justice largely satisfies the intended purposes of the proposal for a protocol on the exclusive jurisdiction of the Court of Justice, by requiring a single exclusive jurisdiction for actions challenging validity or alleging infringement, which prevents rulings on the validity of a patent from being delivered by more than one court, even if they are considering quite different aspects of the matter, and thus avoids the danger of conflicting decisions. If the European Community were to adopt a Regulation on the issue of a Community patent, and to confer exclusive jurisdiction over the registration and validity of patents on the Court of Justice, a court of a EU Member State which was called upon to hear an action for infringement of a Community patent could not rule even indirectly on the validity of the patent, and for that question would have to recognise the exclusive jurisdiction of the Court of Justice, and treat that court as it would another national court (Pocar nr. 96 – 102).

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Enforcement of judgments [Article 22(5) BR I] Case law

Article 22, point (5), BR I provides that the courts of the Member State in which a judgment has been or is to be enforced have exclusive jurisdiction in proceedings concerned with the enforcement of that judgment. What meaning is to be given to the expression proceedings concerned with the enforcement of judgments? It means those proceedings which can arise from ‘recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments' (Jenard C 59/36). An action such as the action paulienne (fraudulent conveyance), 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 Article 22, point (5), BR I (ECJ 26 March 1992 ‘Reichert c.s. v Dresdner Bank’, Case C-261/90).

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 22, point (5), BR I. That provision does not, however, make it possible, in an application to oppose enforcement made to the courts of the 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 (ECJ 4 July 1985 'Autoteile Service v Malhé', Case 220/84).