Opinion of the Advocate General — ECLI:EU:C:2014:43
Date: 2014-01-30
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: Germany

Summary — Judgment of the Court (Third Chamber), 3 April 2014 1. Judicial proceedings — Oral Procedure — Reopening — Obligation to reopen the oral procedure to enable the parties to submit observations of the points of law raised in the Advocate General’s Opinion — No such obligation (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 83) 2. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the need for and relevance of the questions referred (Art. 267 TFEU) 3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Exclusive jurisdiction –Proceedings which have as their object rights in rem in immovable property — Concept — Action challenging the validity of the exercise of the pre-emption right — Included (Council Regulation No 44/2001, Art. 22, para. 1) 4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Lis pendens — Applications made between the courts of different Member States — Court seised second having exclusive jurisdiction under Article 22(1) of the regulation — Obligation for the court second seised to stay its proceedings until the court first seised has established jurisdiction — No such obligation (Council Regulation No 44/2001, Arts 22, para. 1, 27(1) and 35(1)) 1. See the text of the decision. (see paras 28-30) 2. See the text of the decision. (see paras 33-37) 3. Article 22(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action State, seeking a declaration of invalidity of the exercise of a right of pre-emption attaching to that property, and which produces effects with respect to all the parties falls within the category of proceedings which have as their object ‘rights in rem in inmovable property within the meaning of that provision. A right of pre-emption which attaches to immovable property and which is registered with the Land Register produces its effects not only with respect to the debtor, but guarantees the right of the holder of that right to transfer the property also vis-à-vis third parties, so that, if a contract of sale is concluded between a third party and the owner of the property burdened, the proper exercise of that right of pre-emption has the consequence that the sale is without effect with respect to the holder of that right, and the sale is deemed to be concluded between the holder of that right and the owner of the property on the same conditions as those agreed between the latter and the third party. It follows that, where the third party purchaser challenges the validity of the exercise of the right of pre-emption that action will seek essentially to determine whether the exercise of the right of pre-emption has enabled, for the benefit of its holder, the right to the transfer of the ownership of the immovable property subject to the dispute to be respected. In such a case, the dispute concerns proceedings which have as their object a right in rem in immovable property and fall within the exclusive jurisdiction of the forum rei sitae. (see paras 45-47, operative part 1) 4. Article 27(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, before staying its proceedings in accordance with that provision, the court second seised is required to examine whether, by reason of a failure to take into consideration the exclusive jurisdiction laid down in Article 22(1) thereof, any decision on the substance of the court first seised will not be recognised in the other Member States in accordance with Article 35(1) of that regulation. If the court first seised gives a judgment which fails to take account of Article 22(1) of Regulation No 44/2001, that judgment cannot be recognised in the Member State in which the court second seised is situated. In those circumstances, the court second seised is no longer entitled to stay its proceedings or to decline jurisdiction, and it must give a ruling on the substance of the action before it in order to comply with the rule on exclusive jurisdiction. (see paras 55, 56, 60, operative part 2)