Opinion of the Advocate General — ECLI:EU:C:2020:482
Date: 2020-06-18
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of reasons of the request for a preliminary ruling. The wording of that question could in fact suggest that the referring court is working on the premiss that the action in question necessarily falls under Article 7(1)(a) of Regulation No 1215/2012 and is enquiring how to identify the obligation, within the meaning of that provision, on which that action is based. The summary of reasons of the request for a preliminary ruling, by contrast, seems to imply that the referring court is uncertain whether the action at issue in the main proceedings falls under that provision. In order to provide an answer of use to the referring court and since it is impossible to dispel that ambiguity, I propose to construe the second question as worded in point 72 of this Opinion. 2. Assessment 77. If Article 7(1)(a) of Regulation No 1215/2012 is to apply to the action at issue in the main proceedings, the dispute must be found to fall within the concept of ‘matters relating to a contract’ within the meaning of that provision. This is an autonomous concept of EU law (52) which the Court initially interpreted in negative terms, that is to say, the concept is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. (53) 78. Given that no such situation was ever put before the Austrian courts hearing the case in the main proceedings, the action at issue can fall under that provision. The referring court has in fact stated that the co-owners entered into a contractual relationship voluntarily by virtue of the co-ownership agreement. Furthermore, in the light of the case-law referred to in point 44 of this Opinion, the fact that such a relationship also exists with a co-owner who is not a party to the co-ownership agreement, as concluded by the original co-owners, is irrelevant for the purposes of applying Article 7(1)(a) of Regulation No 1215/2012. (54) 79. As regards identifying ‘the obligation in question’ within the meaning of that provision, the referring court seems to take the view, to borrow the words it used in the summary of reasons of the request for a preliminary ruling, that use of his co-ownership property in the agreed manner is a contractual obligation of a co-owner. On that basis, for SP, this is a ‘positive obligation’, that is to say, here, an obligation to use the property in question in accordance with its designated use as laid down in the co-ownership agreement relating to that property. Ellmes Property Services, by contrast, contends that it is an ‘obligation not to do something’ that is to say, to refrain from letting a co-ownership property for tourist purposes, which is not limited geographically and is characterised by a multiplicity of places where it was or should have been performed. Accordingly, it submits that, in the light of Besix, (55)Article 7(1)(a) of Regulation No 1215/2012 does not apply to the dispute in the main proceedings. 80. According to settled case-law, the concept of ‘obligation’ in Article 7(1)(a) of Regulation No 1215/2012 refers to the obligation corresponding to the contractual right relied upon in support of the action. (56) Since the present case concerns an action for a prohibitory order, my view is that the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. That view is borne out by the fact that a co-owner cannot require another co-owner to use its property when it declines to do so. 81. I am however unpersuaded by Ellmes Property Services’ thesis according to which the contractual obligation at issue, consisting of an obligation not to do something, has to be performed with no geographical limitation, with the effect that Article 7(1)(a) of Regulation No 1215/2012 does not apply. 82. The circumstances of the present case are not comparable to those which resulted in the judgment in Besix. (57) In that case, as can be seen from the wording of the question referred to the Court, the contractual obligation at issue was an undertaking to act exclusively with another party to a contract with a view to submitting a joint bid for a public contract and not to enter into a commitment with another partner. The referring court in that case first of all identified the place of performance of the obligation at issue in line with the principle established in Industrie Tessili Italiana Como, (58) according to which that place is determined by the law indicated by the conflict-of-law rules of the court seised. It then established, on the basis of the law indicated as applicable to that obligation, that the obligation had to be performed anywhere in the world. (59) In the present case, by contrast, the referring court has not definitively identified the obligation on which SP’s action is based or, with all the more reason, the place where that obligation must be performed. 83. In addition, Ellmes Property Services’ analysis that an obligation not to do something, such as that in the present case, does not have a specific place of performance seems to disregard the principle established in Industrie Tessili Italiana Como. (60) Indeed, that analysis makes no mention of the solutions arrived at in Austrian law, which that company seems to regard as applicable to the contractual obligation at issue. It is nevertheless not inconceivable that the place of performance of that obligation can be identified in accordance with the law applicable to it and that the place of performance is the place where the apartment subject to co-ownership is situated. (61) It is for the referring court to carry out verifications in that regard, in accordance with the principle established in that judgment. 84. Lastly, for the sake of completeness, I would add that, to my mind, the Court does not have before it the factual or legal material necessary to provide additional clarification on the application of that principle in the circumstances of the present case. Indeed, one of the parties to the dispute in the main proceedings has noted that the co-ownership agreement dates from 1978. It is therefore unlikely that the law applicable to the contractual obligation at issue is identified by any conflict-of-law rules that the Court could interpret. VI. Conclusion 85. On those grounds, I propose that the Court should reply as follows to the questions referred by the Oberster Gerichtshof (Supreme Court, Austria) for a preliminary ruling: (1) Article 24(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect. (2) Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised. 1 Original language: French. 2 Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). 3 BGBl. I, 70/2002. 4 See also, to that effect, Faber, W., ‘National Report on the Transfer of Movables in Austria’, (Faber, W., and Lurger, B., eds), National Reports on the Transfer of Movables in Europe, volume 1, Austria, Estonia, Italy, Slovenia, Sellier, European Law Publishers, Munich, 2008, p. 17. 5 See also Stabentheiner, J., Vonkilch, A., Kersting, J., (Van Der Merwe, C., ed.), European Condominium Law, Cambridge University Press, Cambridge, 2015, p. 133. 6 Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and – amended text – p. 77), the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) to that convention (‘the Brussels Convention’). 7 Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 8 See judgment of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraph 26). For the sake of completeness, I note that the wording of the introductory sentence of Article 24 of Regulation No 1215/2012 contains two amendments to the wording of Article 22 of Regulation No 44/2001. The first is the addition of the nuance that Article 24 of Regulation No 1215/2012 concerns only the courts of a Member State. That nuance does not affect the meaning of that provision in so far as concerns exercise of the jurisdiction to hear actions relating to immovable property situated, as in the dispute in the main proceedings, in the territory of the Member States. The second amendment is the addition of the words ‘the parties’ (the provision applies ‘regardless of the domicile of the parties’), which likewise seems not to change the meaning of Article 22 of Regulation No 44/2001, which provided that the provision applied ‘regardless of domicile’. Emphasis added. See, in relation to the second amendment, Hess, B., ‘The Brussels I Regulation: Recent case-law of the Court of Justice and the Commission’s proposed recast’, Common Market Law Review, 2012, vol. 49, pp. 1105 to 1106. 9 See, recently, judgment of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraph 97 and the case-law cited), and order of 15 May 2019, MC (C‑827/18, not published, EU:C:2019:416, paragraph 23). 10 See, recently, judgment of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraph 100). In addition, according to paragraph 166 of the Schlosser report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (OJ 1979 C 59, p. 71), the most important legal consequence flowing from the nature of a right in rem that has effect erga omnes is that its owner is entitled to demand that the property burdened is given up by anyone not enjoying a prior right. 11 Judgment of 17 December 2015 (C‑605/14, EU:C:2015:833, paragraph 29). 12 See, to that effect, judgment of 18 May 2006, ČEZ (C‑343/04, EU:C:2006:330, paragraph 32). 13 See, recently, judgment of 10 July 2019, Reitbauer and Others (C‑722/17, EU:C:2019:577, paragraph 45 and the case-law cited). 14 See judgments of 3 April 2014, Weber (C‑438/12, EU:C:2014:212, paragraph 42), and of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraph 40). 15 See judgment of 17 May 1994, Webb (C‑294/92, EU:C:1994:193, paragraph 15), and order of 5 April 2001, Gaillard (C‑518/99, EU:C:2001:209, paragraph 18). 16 Judgment of 18 May 2006, ČEZ (C‑343/04, EU:C:2006:330, paragraph 34). 17 Judgment of 18 May 2006 (C‑343/04, EU:C:2006:330). 18 Judgment of 3 April 2014, Weber (C‑438/12, EU:C:2014:212, paragraph 45). 19 Judgment of 3 April 2014 (C‑438/12, EU:C:2014:212). 20 Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376, paragraph 29). 21 Order of 19 November 2019 (C‑200/19, not published, EU:C:2019:985, paragraph 29). 22 Judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 29), and order of 19 November 2019, INA and Others (C‑200/19, not published, EU:C:2019:985, paragraph 29). 23 Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376, paragraph 29). 24 Order of 19 November 2019 (C‑200/19, not published, EU:C:2019:985, paragraph 29). 25 See, for situations where it is not, judgments of 17 May 1994, Webb (C‑294/92, EU:C:1994:193, paragraph 15), and of 9 June 1994, Lieber (C‑292/93, EU:C:1994:241, paragraph 15), and order of 5 April 2001, Gaillard (C‑518/99, EU:C:2001:209, paragraph 18). 26 Judgment of 16 November 2016 (C‑417/15, EU:C:2016:881, paragraph 40). 27 Judgment of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraphs 34 and 43, first indent). 28 Judgment of 14 February 2019 (C‑630/17, EU:C:2019:123, paragraph 102). 29 Judgment of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraph 101). 30 See, to that effect, recently, order of 15 May 2019, MC (C‑827/18, not published, EU:C:2019:416, paragraph 20). 31 See also, in general in relation to the rules of exclusive jurisdiction under Article 16 of the Brussels Convention, judgment of 13 July 2000, Group Josi (C‑412/98, EU:C:2000:399, paragraph 46). 32 Judgment of 10 January 1990 (C‑115/88, EU:C:1990:3, paragraph 9). The Court had previously upheld a similar interpretation in relation to actions relating to tenancies of immovable property in its judgment of 14 December 1977, Sanders (73/77, EU:C:1977:208, paragraphs 11 and 12). 33 See judgments of 10 January 1990, Reichert and Kockler (C‑115/88, EU:C:1990:3, paragraph 10); of 17 December 2015, Komu and Others (C‑605/14, EU:C:2015:833, paragraph 31); and of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraph 29). 34 See, to that effect, judgments of 17 December 2015, Komu and Others (C‑605/14, EU:C:2015:833, paragraph 30), and of 16 November 2016, Schmidt (C‑417/15, EU:C:2016:881, paragraph 37). 35 See, recently, on jurisdiction in matters relating to a contract, judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 36), and, on jurisdiction in matters relating to tort, judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, paragraphs 26 and 27). 36 Judgment of 18 May 2006 (C‑343/04, EU:C:2006:330). 37 See judgment of 18 May 2006, ČEZ (C‑343/04, EU:C:2006:330, paragraph 38). 38 Although in certain situations it is impossible to distinguish between the concepts of ‘Handlungsort’ and ‘Erfolgsort’ (see my Opinion in Universal Music International Holding (C‑12/15, EU:C:2016:161, point 38)), the rule of jurisdiction under Article 7(2) of Regulation No 1215/2012 concerns actions in respect of which, in principle, that distinction can be drawn. 39 See, to that effect, judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraph 29). However, it is not clear that this interpretation can be transposed to Article 7(1)(a) of Regulation No 1215/2012. See judgment of 27 November 2014 of the High Court of Justice (England and Wales), United Kingdom, in Canon Offshore Ltd v GDF Suez E&P Nederland BV [2014] EWHC 3810 (Comm), paragraph 49 et seq. Further, for the development of the case-law on Article 7(1)(b) of that regulation and the proliferation of courts with jurisdiction under that provision, see Beaumont, P., Yüksel, B., ‘Cross-Border Civil and Commercial Disputes Before the Court of Justice of the European Union’, Beaumont, P., Danov, M., Trimmings, K., Yüksel, B., (eds), Cross-border Litigation in Europe, Hart Publishing, Oxford/Portland, 2017, p. 514 et seq. 40 See judgment of 17 December 2015, Komu and Others (C‑605/14, EU:C:2015:833, paragraph 24). 41 Judgment of 28 April 2009, Apostolides (C‑420/07, EU:C:2009:271, paragraphs 48 and 50). 42 See also, to that effect, Lehmann, M., The Brussels I Regulation Recast, Dickinson, A., Lein, E., (eds), Oxford University Press, Oxford, 2015, p. 259, paragraph 8.10. 43 For the sake of completeness I note that Article 24(1) of Regulation No 1215/2012 also covers tenancies of immovable property. Admittedly, tenancies are not comparable with rights in rem in immovable property and the objectives that underpin the exclusive nature of the jurisdiction over tenancies of immovable property can be distinguished from those that underpin jurisdiction over rights in rem in immovable property. Nevertheless, according to my interpretation of the case-law, tenancies over immovable property likewise fall under a rule of exclusive jurisdiction for reasons concerning economic, social and political considerations which require mandatory legislation to control the level of rents and protect the rights of tenants, including tenant-farmers. See, to that effect, judgments of 26 February 1992, Hacker (C‑280/90, EU:C:1992:92, paragraph 8); of 6 July 1988, Scherrens (158/87, EU:C:1988:370, paragraph 9), and order of 15 May 2019, MC (C‑827/18, not published, EU:C:2019:416, paragraph 27). 44 Report on the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, p. 1). 45 See, to that effect, Lehmann, M., op. cit., p. 259, paragraph 8.11. 46 See, to that effect, Van Calster, G., European Private International Law, Hart Publishing, Oxford/Portland, 2016, p. 73. 47 Judgment of 9 June 1994 (C‑292/93, EU:C:1994:241, paragraph 15). 48 Judgment of 9 June 1994, Lieber (C‑292/93, EU:C:1994:241, paragraph 21). 49 It seems obvious to me that the dispute in the main proceedings does not in any way concern the sale of goods. Nor does it concern services which, according to consistent case-law, imply that the party providing the services carries out a particular activity in return for remuneration (see judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 39 and the case-law cited). The remuneration element is absent in the present case. 50 Judgment of 6 October 1976 (12/76, EU:C:1976:133). 51 See, on Article 5(1)(a) of Regulation No 44/2001, whose wording corresponds to that of Article 7(1)(a) of Regulation No 1215/2012, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257, paragraphs 46 to 57). 52 See, recently, judgment of 26 March 2020, Primera Air Scandinavia (C‑215/18, EU:C:2020:235, paragraph 41). 53 Judgment of 17 June 1992, Handte (C‑26/91, EU:C:1992:268, paragraph 15). 54 See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 29). See, also, order of 19 November 2019, INA and Others (C‑200/19, not published, EU:C:2019:985, paragraph 29). 55 Judgment of 19 February 2002 (C‑256/00, EU:C:2002:99). 56 See, to that effect, judgments of 6 October 1976, De Bloos (14/76, EU:C:1976:134, paragraph 13), and of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257, paragraph 47). 57 Judgment of 19 February 2002 (C‑256/00, EU:C:2002:99). 58 Judgment of 6 October 1976 (12/76, EU:C:1976:133). 59 Judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraphs 16 to 20). 60 Judgment of 6 October 1976 (12/76, EU:C:1976:133). 61 Indeed, there are many arguments that suggest to me that the applicable law should recognise the relevance of the location of a property whose designated use cannot be changed. That outcome is also warranted on the basis of considerations relating to the connection between the dispute and the court with jurisdiction and those concerned with preventing overuse of the forum actoris. However, given the nature of the reference to substantive law, on which Article 7(1)(a) of Regulation No 1215/2012 is based, it cannot be ruled out that the applicable law may determine the place of performance of the contractual obligation at issue by reference to the domicile of a debtor or creditor. See, to that effect, Mankowski, P., ‘Article 7’, Magnus, U., Mankowski, P., (eds), Brussels I bis Regulation, Otto Schmidt, Cologne, 2016, p. 253, paragraph 208.