Opinion of mr advocate-general Mayras

Mr President,

Members of the Court,

I —. The main action which has given rise to the present reference for a preliminary ruling arises out of settlement of accounts between Netherlands subjects who are florists in the Ruhr.

II —. The terms used by the authors of the Convention to express in the different official languages the French expression en matière de droits reels immobiliers et de baux d'immeubles (in matters relating to rights in rem in, or tenancies of, immovable property) betray some uncertainty, which is perhaps at the origin of the questions raised by the supreme Netherlands court.

III —. Even if, on that first point, one was inclined to say that it is for the national court to decide whether the action with which it is seised is only vaguely connected with a lease of immovable property or, on the other hand, whether the question raised before it cannot be separated from the problem of the lease of the immovable property, consideration of the remainder of the questions referred to the Court by the Hoge Raad of the Netherlands leads one to take the contrary view.

IV —. The third question referred by the Hoge Raad of the Netherlands confirms the opinion which I have just expressed. The question itself acknowledges that at a given moment in the proceedings there was a dispute between the plaintiff, the lessor, and the defendant, the tenant, as to the existence of the lease and the interpretation of its clauses. When the summons to appear was issued by Van der Putte the action concerned chiefly payment of the rents and fulfilment of the other undertakings entered into when the lease was concluded. However, the very existence of a lease is seriously contested by Sanders. It is in fact always possible to contest the title to payment when a claim payment is made. An action for the payment of arrears of rent becomes an action in rem when title to the arrears is contested; that is sufficient to make the action before the Netherlands court mixed in nature and to justify the application of the rule in Article 16 (1). Jurisdiction under that article is based on public policy even at the stage of recognition and enforcement, and cannot be dependent solely on the conduct of the parties during or outside the proceedings.

In the light of all of the foregoing I consider that you should rule that:

1 Translated from the French.