Report for the Hearing delivered in Case C-115/88

I — Facts, procedure and legal background to the dispute

A — Facts

1. Course of the procedure in the main proceedings

Hans-Heinz Reichert and Ingeborg Kockler, his wife, who are of German nationality and reside at Schwalbach, Federal Republic of Germany, own immovable property at Domaine de Montjoyeux, Antibes, Alpes-Maritimes, France. They decided to donate the legal ownership of the property in question to their son, Mario Peter Antonio Reichert, also of German nationality and also residing at Schwalbach in the Federal Republic of Germany. The donation was made by a notarial instrument executed at Creutzwald, Moselle, France.

Dresdner Bank AG, whose registered office is at Frankfurt am Main, Federal Republic of Germany, challenged that donation before the tribunal de grande instance (Regional Court), Grasse, Alpes-Maritimes, France, within whose judicial district the immovable property in question is situated, by bringing an action paulienne (actio pauliana, a revocatory action brought by a creditor whereby transactions entered into by his debtor in fraud of the creditor's rights may be declared ineffective as against the creditor in so far only as his interests are prejudiced) under Article 1167 of the French civil code.

In bringing its action before the tribunal de grande instance, Grasse, Dresdner Bank relied on Article 16(1) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, which provides that in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated are to have exclusive jurisdiction.

By a judgment of 20 February 1987, the tribunal de grande instance, Grasse, held that it had jurisdiction on the basis of that provision. The defendants, however, appealed against that decision to the cour d'appel (Court of Appeal), Aix-en-Provence, which has sought a preliminary ruling by the Court on the interpretation of Article 16(1).

2. The dispute before the cour d'appel, Aix-en-Provence

The Reicherts maintain before the cour d'appel, as they had previously maintained before the tribunal de grande instance, that Article 16(1) of the Convention of 27 September 1968 does not apply to the action brought against them by Dresdner Bank since it does not have as its object rights in rem in immovable property; it is, by very nature, a personal action. In the alternative, if it is accepted that the question of jurisdiction could be solved by applying Article 5(3) of the Convention, which provides that in matters relating to tort, delict or quasi-delict, a defendant may be sued in the courts for the place where the harmful event occurred, the Reicherts maintain that the courts for Metz, in whose judicial district the notarial deed was executed, should be held to have jurisdiction.

Dresdner Bank, for its part, reaffirms its original interpretation of Article 16(1) of the Convention and, with regard to Article 5(3), replies that if the criterion in that provision were accepted, the Grasse court would still have jurisdiction since the harmful event — that is to say the transfer of the immovable property out of the estate of Mr and Mrs Reichert — occurred within its judicial district.

B — Legal background to the dispute

Article 2 of the Brussels Convention provides: Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Title II, Section V, however, lays down a number of cases of exclusive jurisdiction which may depart from that rule. In particular, Article 16(1) provides that in proceedings which have as their object rights in rem in immovable property, the courts of the Contracting State in which the property is situated are to have exclusive jurisdiction, regardless of domicile. Article 5(3) of the Convention, also cited by both the defendants and the plaintiff in the main action, provides: A person domiciled in a Contracting State may, in another Contracting State, be sued ... 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred ... .

Those are the circumstances in which the cour d'appel, Aix-en-Provence, has sought a ruling from the Court on whether

The judgment of the cour d'appel, Aix-en-Provence, was received at the Court Registry on 11 April 1988.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by the French Government, represented by Régis de Gouttes, assisted by Géraud de Bergues, acting as Agents; by the German Government, represented by Christof Böhmer, acting as Agent; by the United Kingdom, represented by J. A. Gensmantel, of the Treasury Solicitor's Department, assisted by M. C. L. Carpenter, of the Lord Chancellor's Department, acting as Agents; by the Italian Government, represented by Oscar Fiumara, avvocato dello Stato, acting as Agent; and by the Commission of the European Communities, represented by Georgios Kremlis, a member of its Legal Department, assisted by Giorgio Cherubini, an Italian official on detachment with the Commission under the arrangements for exchanges with national officials, acting as Agents.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

Pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court, by decision of 8 May 1989, assigned the case to the Fifth Chamber.

II — Summary of the observations submitted to the Court

A —. It must first be noted that the Government of the French Republic suggests that the national court's question should be reformulated in two parts, as follows :

B —. The Commission and all the governments which have submitted observations consider that the action brought by Dresdner Bank against the Reicherts does not have as its object rights in rem in immovable property within the meaning of Article 16(1). The reasons put forward may be classed in three categories.

C —. The Commission puts forward a number of arguments concerning the possible application of Article 5(3) of the Convention, which provides that a defendant may also be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred. It states that the element of fraud is common to the various legal systems which possess the action paulienne. It considers, therefore, that it might be possible to found jurisdiction on Article 5(3), subject to the dual requirement of an intention to harm and a prejudice suffered. It would thus be possible, in the Commission's view, to envisage an independent interpretation of the Convention in which the action paulienne fell within the category of matters relating to tort, delict or quasi-delict.

1 Language of the case: French.