Opinion of Advocate General Darmon

Mr President,

Members of the Court,

1. By order of 10 June 1992, received at the Court on 19 May 1993, the Oberlandesgericht (Higher Regional Court) Frankfurt am Main asks the Court for an interpretation of Article 16(1) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (the Convention), in the context of proceedings between Norbert Lieber, the appellant in the main proceedings, and Mr and Mrs Göbel, the owners of an apartment in Cannes (France), all three being domiciled in the Federal Republic of Germany.

2. Following earlier proceedings, the parties reached a settlement on 27 April 1978 in which Mr and Mrs Göbel agreed to transfer the ownership of the said apartment to Mr Lieber. The appellant in the main proceedings was thus put in possession of the apartment and used it from 1 June 1978 to 30 April 1987. The settlement was declared void under Paragraphs 313 and 125 of the Bürgerliches Gesetzbuch (German Civil Code), and the respondents in the main proceedings brought before the Landgericht (Regional Court) Frankfurt am Main a claim for compensation for use for the period in question.

3. The Landgericht, in order to assess the value of the use of the property, appointed a French expert, and on the basis of his report that court determined the amount of compensation payable to Mr and Mrs Göbel.

4. Mr Lieber appealed against that decision. He considered that in view of the location of the property, the French courts had exclusive jurisdiction under Article 16(1) of the Convention, which provides that:

5. In those circumstances the Oberlandesgericht Frankfurt am Main puts the following question to the Court:

6. To answer that question, the Court will have to determine the scope of Article 16(1) with respect not only to tenancies of immovable property but also to rights in rem in immovable property. I shall therefore examine those two aspects in turn.

7. I. The appellant in the main proceedings argues that although the counterclaim does not put forward any claims relating to the law on tenancies, it must be regarded as relating to the law on tenancies with respect in particular to the determination of the amount of rent and the rules on protection for tenants, with the result that the French courts must be allowed exclusive jurisdiction.

8. Let me say straight away that neither the underlying objective of the rule nor the case-law of the Court supports such an argument.

9. The intention of the authors of the Convention was to limit the scope of Article 16(1) to tenancies in the strict sense. Thus the Jenard Report states that tenancies of immovable property

10. The reasons for conferring exclusive jurisdiction in this respect are that:

11. Moreover, that exclusive jurisdiction cannot be derogated from by an agreement conferring jurisdiction (Article 17) or by an implied extension of jurisdiction (Article 18). Under Article 19 of the Convention, a court from a State other than the State whose courts have exclusive jurisdiction by virtue of Article 16 must declare of its own motion that it has no jurisdiction. Finally, a judgment given in another Contracting State which conflicts with a rule conferring exclusive jurisdiction cannot be recognized (Article 28) or enforced (Article 34).

12. The exclusive jurisdiction conferred in this respect on the courts of the place where the property is situated has incidentally been regarded as curious by an authority on the subject.

13. The Court for its part stated in the Sanders judgment that

14. In that judgment, and also in three other judgments, the Court had to rule on the interpretation of tenancies of immovable propertywithin the meaning of Article 16(1) of the Convention and in each case upheld the principle of an independent interpretation without reference to the rules of national law.

15. Thus in the Sanders judgment the Court refused to apply that provision to an agreement whose principal aim concerned the operation of a business. In the Hacker judgment the Court likewise declined to regard as a tenancy an agreement which

16. In the Rosier judgment, on the other hand, the Court held that Article 16(1) applied

17. The conclusion reached by the Court in that judgment cannot be regarded as having extended the scope of that provision. As Huet writes in his observations on the decision, although

18. However, in that case the parties had indeed concluded an agreement for a tenancy within the meaning of Article 16(1), certain characteristics of which were defined by the Court as follows:

19. An agreement relating to immovable property does not necessarily relate to a transfer of use and occupation as defined by the Court, and in that case Article 16(1) cannot be applied. A fortiori, there cannot be a transfer of occupation if, as a result of its being declared void, there is no contractual relationship. That is the case in particular

20. Moreover, I believe that that conclusion is in harmony with the rule of reason relating to this head of jurisdiction in cases concerning residential tenancies of immovable property, expressed as follows in the Court's judgment in Sanders:

21. Assessment of the compensation for use will indeed depend on the letting value of the dwelling (already determined at first instance in the main proceedings after consulting a French expert), but it should be noted that national rules restricting or indexing rents are intended to protect persons holding under a lease, not mere occupiers.

22. I note, however, that the fact that some Member States have mandatory rules relating to commercial tenancies was not considered by the Court to justify the application of Article 16(1) in the aforesaid Sanders judgment, contrary incidentally to the opinion of the Advocate General.

23. Moreover, according to Gothot and Holleaux,

24. II. If the compensation in question cannot be based on the concept of a tenancy of immovable property, can it be regarded as relating to a right in rem in immovable property, in so far as it follows from a void contract of sale?

25. With respect to the scope of that part of Article 16(1) which refers to rights in rem in immovable property the Court has handed down only one judgment to date, the judgment in Reichert I, since judgment has not yet been given in the Webb case, which concerns the same provision and in which I delivered my Opinion on 8 February 1994.

26. In the Reichert I case a married couple domiciled in the Federal Republic of Germany had donated to their son, who was also domiciled in that State, the legal ownership of immovable property situated in France, reserving to themselves the right to use it. The German bank which was their creditor brought proceedings in France, namely the action paulienne provided for in Article 1167 of the French Civil Code, the effect of which is to render a transfer of property made in fraud of the creditor's rights ineffective as against him.

27. On a question being referred by the Cour d'Appel, Aix-en-Provence, on the nature of such an action with respect to Article 16(1), the Court, referring expressly to its judgments in Sanders, cited above, and Duijnstee, noted that

28. The Court then held that that provision had to be given a restrictive interpretation, and stated that

29. On the distinction between rights in personam and rights in rem, the Schlosser Report states:

30. Schlosser then states with reference to the particular field of actions concerning the obligation to transfer the ownership of immovable property,

31. Although such an action may have an effect on a right in rem, its basis is thus a relationship of a personal nature, so that in Professor Schlosser's opinion it should not come within the scope of Article 16(1). That situation is different from the one before the national court, which is characterized by a legal relationship corresponding to a mere claim for protection of a right in personam by virtue of which a creditor's estate includes an asset, while conversely as a result of the same relationship there is a liability — in other words, a debt — in the debtor's estate.

32. An action claiming compensation for use as a result of the annulment of a contract of sale is a consequence of the annulment of a contractual relationship which furthermore has no bearing on the existence, content or structure of the property right. It thus does not come within the category of rights in rem.

33. Moreover, as L. Collins writes:

34. It would moreover be paradoxical, as the French Government has incidentally rightly pointed out, if such an action came under the rule on jurisdiction in Article 16, even though the action for annulment did not.

35. Although the latter action altered the structure of a right in rem, that does not mean that it can be regarded as being strictly of an in rem nature, since it is based on a legal relationship of a personal nature.

36. That opinion is shared by Professor Schlosser in his report, and is also supported by the most authoritative writers, in particular by Gothot and Holleaux who write that:

37. Bischoff, commenting on the Court's judgment in Reichert I, also considers that:

38. I therefore propose that the Court should rule as follows:

1 Original language: French.

2 As amended by the Accession Convention of 9 October 1978 (OJ 1978 L 304, p. 1).

3 P. 2 of his observations.

4 OJ 1979 C 59, p. 1.

5 P. 35.

6 Ibid.

7 Bellet, P.: L'élaboration d'une convention sur la reconnaissance des jugements dans le cadre du Marché commun, Journal de droit international, 1965, p. 833, at p. 857.

8 Judgment in Case 73/77 Sanders v van der Putte [1977] ECR 2383.

9 Paragraph 17.

10 Paragraph 18.

11 Judgments in Case 241/83 Rosler v Rottwinkel [1985] ECR 99, Case 158/87 Scherrens v Maenhout and Others [1988] ECR 3791, and Case C-280/90 Hacker [1992] ECR I-1111.

12 Paragraph 16.

13 Judgment in Hacker, cited above (note 10), paragraph 14.

14 Paragraph 25.

15 Journal de droit international, 1986, p. 440.

16 Paragraph 27.

17 Paragraph 14.

18 Sanders, cited above (note 7), p. 2393.

19 La convention de Bruxelles du 27 septembre 1968 — Compétence judiciaire et effets des jugements dans la CEE, Jupiter, 1985.

20 Paragraph 149, p. 86.

21 Judgment in Case C-115/88 [1990] ECR I-27. Following that judgment, the national court made a fresh reference to the Court of Justice to ascertain whether an action paulienne under Article 1167 of the French Civil Code could come under Articles 5(3), 16(5), and 24 of the Convention (judgment in Case C-261/90 Reichert II [1992] ECR I-2149). The latter decision is of no relevance for the present proceedings.

22 Case C-294/92, judgment of 17 May 1994 [1994] ECR I-1717, I-1719.

23 Judgment in Case 288/82 Duijnstee v Coderbauer [1983] ECR 3663.

24 Paragraph 8.

25 Paragraph 11.

26 OJ 1979 C 59, p. 71.

27 Paragraph 166(a), p. 120.

28 Paragraph 170(a), pp. 121 and 122.

29 See Mazeaud-Chabas: Leçons de droit civil. Introduction à l'étude du droit, p. 213 et seq., Vol. I, part 1, 8th edition by Chabas, Éditions Montchrestien, 1986.

30 The Civil Jurisdiction and Judgments Act 1982, Butter-worths, 1983.

31 P. 79.

32 Paragraph 145, p. 84.

33 Journal de droit international, 1990, p. 503, at p. 504 in fine.