Opinion of the Advocate General — ECLI:EU:C:2023:535
Date: 2023-06-29
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

Anonymised version 
Translation C-497/22 – 1 
Case C-497/22 
Request for a preliminary ruling 
Date lodged: 
22 July 2022 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
8 July 2022 
Applicant and appellant: 
EM 
Defendant and respondent: 
Roompot Service B.V. 
  
[…] 
Landgericht Düsseldorf (Regional Court, Düsseldorf) 
Order 
In the case of 
EM […] 
applicant and appellant, 
[…] 
v 
Roompot Service B.V., […] Goes, Netherlands, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 8. 7. 2022 – CASE C-497/22 
 
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defendant and respondent, 
[…] 
the 22nd Civil Chamber of the Regional Court, Düsseldorf […] 
ordered as follows: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling on the interpretation of EU law pursuant to point (b) of 
the first paragraph and the third paragraph of Article 267 TFEU: 
Must the first sentence of Article 24(1) of Regulation (EU) No 1215/2012 be 
interpreted as meaning that a contract which is concluded between a private 
individual and a commercial lessor of holiday homes in relation to the short-term 
letting of a bungalow in a holiday park operated by the lessor, and which provides 
for cleaning at the end of the stay and the provision of bed linen as further services 
in addition to the mere letting of the bungalow, is subject to the exclusive 
jurisdiction of the State in which the rented property is situated, irrespective of 
whether the holiday bungalow is owned by the lessor or by a third party? 
G r o u n d s: 
I. 
The applicant, EM, resident in Germany, booked a 10-person bungalow, including 
bed linen and cleaning at the end of the stay, for herself and a group of nine of her 
friends at the ‘Waterpark Zwartkruis’ in Noardburgum (Netherlands) for the 
period from 31 December 2020 to 4 January 2021 at a total rental price of 
EUR 1 902.80, via the German-language website www.roompot.de, operated by 
the defendant, a Dutch commercial lessor of holiday homes, which confirmed the 
booking on 23 June 202[0] […]. The group of people are members of more than 
two different households. 
Waterpark Zwartkruis is a water park with holiday homes located directly on a 
lake, each with a separate jetty. Boats and canoes can be hired for an additional 
charge. 
The applicant paid the rental price in full. 
It is common ground that, at the applicant’s request, the defendant informed her 
by email, prior to arrival, that Zwartkruis Waterpark would be open during the 
period of her booking, from 31 December 2020 to 4 January 2021, despite the 
Covid-19 pandemic. However, due to the laws in the Netherlands on protection 
against infection, the applicant was permitted to stay in the accommodation only 
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together with her family and a maximum of two people from another household. 
The applicant was also offered the opportunity to rebook her stay for a later date. 
The applicant did not stay at the accommodation and also did not take up the offer 
to rebook the stay. On 7 January 2021, the defendant repaid a partial amount of 
EUR 300 to the applicant. 
By the present action, the applicant seeks repayment of the remainder of the rental 
price, in the amount of EUR 1 602.80, plus interest and costs. 
The defendant contests the international jurisdiction of the German courts. 
The Amtsgericht Neuss (Local Court, Neuss) dismissed the action as unfounded 
by judgment […] delivered on 1 October 2021. 
The applicant lodged an appeal against that judgment in due form and within the 
prescribed period, by which she pursues the form of order sought at first instance. 
The defendant defends the judgment at first instance. 
II. 
The success of the defendant’s appeal hinges on the question set out above. 
Specifically: 
If the German courts do not have international jurisdiction in accordance with 
Regulation (EU) No 1215/2012 (‘the Brussels Ia Regulation’) in the present case, 
the action would be inadmissible from the outset and would therefore have to be 
dismissed. 
The question arises as to whether, in the present case, the Netherlands has 
exclusive international jurisdiction, as the State in which the rental property is 
situated, in accordance with the first sentence of Article 24(1) of the Brussels Ia 
Regulation. Under that provision, in proceedings which have as their object rights 
in rem in immovable property or tenancies of immovable property, the courts of 
the Member State in which the property is situated have exclusive jurisdiction. 
1. 
To date, the Court of Justice has delivered three relevant decisions on the almost 
identically worded predecessor provision, Article 16(1) of the Brussels 
Convention, each of which concerned holiday home contracts. 
a. 
The Court of Justice had initially held, in its decision of 15 January 1985 in Case 
241/83, Rösler v Rottwinkel, that, first, the essential reason for the exclusive 
jurisdiction conferred by the first sentence of Article 24(1) of the Brussels Ia 
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Regulation on the courts of the Contracting State in which the immovable 
property is situated is that the courts of the locus rei sitae are the best placed, for 
reasons of proximity, to ascertain the facts satisfactorily, by carrying out checks, 
inquiries and expert assessments on the spot, and, second, the raison d’être of that 
exclusive jurisdiction is the fact that tenancies are closely bound up with the law 
of immovable property and with the provisions, generally of a mandatory 
character, governing its use, such as legislation controlling the level of rents and 
protecting the rights of tenants […]. Therefore, exclusive jurisdiction applies to all 
lettings of immovable property irrespective of their specific characteristics, even 
short-term lettings and even where they relate only to the use and occupation of a 
holiday home […]. The Court of Justice further held that any dispute concerning 
the existence of tenancies or the interpretation of the terms thereof, their duration, 
the giving up of possession to the landlord, the repairing of damage caused by the 
tenant or the recovery of rent and of incidental charges payable by the tenant, such 
as charges for the consumption of water, gas and electricity, falls within the 
exclusive jurisdiction of the courts of the State in which the property is situated. 
Accordingly, disputes concerning the obligations of the landlord or of the tenant 
under the terms of the tenancy fall within that exclusive jurisdiction. On the other 
hand, disputes which are only indirectly related to the use of the property let, such 
as those concerning the loss of holiday enjoyment and travel expenses, are not to 
fall within the exclusive jurisdiction conferred by that article […]. 
b. 
In its later decision of 26 February 1992, C-280/90, Hacker v Euro-Relais GmbH, 
the Court of Justice partially qualified the decision of 15 January 1985 in Case 
241/83, Rösler v Rottwinkel […]. It held that, in the case of tenancies, the 
exclusive jurisdiction of the State in which the property is situated does not apply 
where the principal aim of the agreement was of a different nature. In addition, the 
assignment, in the interests of the proper administration of justice, of exclusive 
jurisdiction to the courts of one Contracting State deprives the parties of the 
choice of the forum which would otherwise be theirs and, in certain cases, results 
in their being brought before a court which is not that of the domicile of any of 
them. Having regard to that consideration, the provision of the first sentence of 
Article 24(1) of the Brussels Ia Regulation must not be given a wider 
interpretation than is required by its objective […]. An agreement which is 
concluded between a travel organiser and a customer in the place where they are 
both domiciled also includes, irrespective of its title, and although providing a 
service concerning the use of short-term holiday accommodation, other services, 
such as information and advice, where the travel organiser proposes a range of 
holiday offers, the reservation of accommodation during the period chosen by the 
customer, the reservation of seats in connection with travel arrangements, the 
reception at the destination and, possibly, travel cancellation insurance. A 
complex contract of that type, which concerns a range of services provided in 
return for a lump sum paid by the customer, is outside the scope within which the 
exclusive jurisdiction laid down by the first sentence of Article 24(1) of the 
Brussels Ia Regulation finds its raison d’être and cannot constitute a tenancy 
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agreement within the meaning of that provision. Consequently, the first sentence 
of Article 24(1) of the Brussels Ia Regulation is to be interpreted as not applying 
to a contract concluded in a Contracting State whereby a business organising 
travel with its seat in that State undertakes to procure for a client domiciled in the 
same State the use for several weeks of holiday accommodation not owned by it in 
another Contracting State and to book the travel arrangements. 
c. 
In its decision of 27 January 2000, Case C-8/98, Dansommer A/S v Götz, the 
Court of Justice subsequently clarified further those (modified) principles with 
respect to the case in which a lessor brings an action against a tenant. 
The Court of Justice held that the case-law in the judgment of 26 February 1992, 
C-280/90, Hacker v Euro-Relais GmbH […] was not relevant in this case. The 
contract at issue in Hacker had been concluded between a professional travel 
organiser and its customer at the place where both were domiciled, and even 
though that contract provided for a service concerning the use of short-term 
holiday accommodation, it also included other services, such as information and 
advice, where the travel organiser proposed a range of holiday offers, the 
reservation of accommodation during the period chosen by the customer, the 
reservation of seats in connection with travel arrangements, reception at the 
destination and the possibility of travel cancellation insurance. However, the 
unavoidable conclusion was that the circumstances of the Dansommer case were 
different from those of Hacker. The contract in Dansommer concerned 
exclusively the letting of immovable property. The clause in the general terms and 
conditions of the contract relating to insurance to cover the costs in the event of 
cancellation was only an ancillary provision which could not alter the status of the 
tenancy agreement to which it related, especially since that clause was not in issue 
before the referring court. The same applied in regard to the guarantee – which 
was, moreover, required by German legislation – of repayment of the price paid in 
advance by the customer in the event of the organiser’s insolvency. Finally, the 
first sentence of Article 24(1) of the Brussels Ia Regulation was not rendered 
inapplicable merely because the dispute in the case was not directly between the 
owner and the tenant of the immovable property, given that the applicant had 
brought legal proceedings against the tenant after being subrogated to the rights of 
the owner of the immovable property which was the subject of the lease 
concluded between the applicant and the defendant. It was sufficient to note in this 
regard that, through subrogation, one person steps into the shoes of another in 
order to enable the former to exercise rights belonging to the latter, so that, in the 
main proceedings in the case, the applicant was not acting in its capacity as a 
professional tour operator but as if it were the owner of the property in question 
[…]. 
2. 
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On the basis of that case-law of the Court of Justice, the German 
Bundesgerichtshof (Federal Court of Justice; ‘the BGH’) has delivered two 
judgments concerning international jurisdiction in the case of holiday home 
contracts and relating to the almost identically worded predecessor provision, 
Article 22(1) of the Brussels I Regulation. 
According to the case-law of the BGH, the decisive factor for the applicability of 
the first sentence of Article 24(1) of the Brussels Ia Regulation is whether the 
contracting party itself, as a tour operator, is required to make available a holiday 
home owned by a third party (in which case the first sentence of Article 24(1) of 
the Brussels Ia Regulation does not apply) or merely acts as an intermediary in the 
conclusion of a rental contract with the owner (in which case the first sentence of 
Article 24(1) of the Brussels Ia Regulation is relevant). It is not relevant in this 
regard whether the lessor’s obligation to provide other ancillary services (such as 
cleaning at the end of the stay), as agreed between the parties in addition to the 
letting of the property, is comparable to the other services referred to by way of 
example by the Court of Justice in its decision of 26 February 1992, C-280/90, 
Hacker v Euro Relais-GmbH. This is because, in that decision, the Court of 
Justice did not proceed on the basis of the ‘other services as such’, but on the basis 
of the question as to whether the contract, even if it relates only to the short-term 
letting of a holiday home and thus to a single travel service, typically ‘entails’ 
other (ancillary) services such as those referred to in that decision. No other 
conclusion can be drawn from the judgment of the Court of Justice of 27 January 
2000 in Case C-8/98, Dansommer, either. In that case, the Court of Justice did not 
depart from or even qualify the abovementioned case-law in Hacker v Euro 
Relais-GmbH, but stated that the circumstances of the main proceedings were 
different from those of Case C-280/90, Hacker v Euro Relais-GmbH. The main 
proceedings underlying Case C-8/98, Dansommer, concerned claims brought by 
the owner of a holiday home against the tenant. The applicant, a professional tour 
operator, had acted merely as an intermediary in the conclusion of the contract in 
that case and had brought the claims of the owner after being subrogated to his 
rights. In Case C-8/98, Dansommer, the Court of Justice expressly emphasised 
that the applicant in the main proceedings had not been acting in its capacity as a 
professional tour operator but as if it were the owner of the property in question. It 
therefore follows from the statements of the Court of Justice in Case C-8/98, 
Dansommer, that an action brought by a subrogor against the tenant of a holiday 
home after being subrogated to the owner’s rights may be subject to the exclusive 
jurisdiction of the State in which the property is situated. Thus, it does not follow 
from the judgment of the Court of Justice in Case C-8/98, Dansommer, that a 
dispute concerning claims brought by a tenant against a professional tour operator 
which had itself undertaken to make available a holiday home belonging to a third 
party is subject to the exclusive jurisdiction of the State in which the property is 
situated […]. 
3. 
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In accordance with the above case-law of the Court of Justice, contracts 
concerning the letting of holiday homes abroad are, in principle, subject to the 
exclusive jurisdiction of the State in which the property is situated, as provided for 
in the first sentence of Article 24(1) of the Brussels Ia Regulation. An exception 
would exist only if the contract in the present case were to be a complex contract – 
within the meaning of the case-law of the Court of Justice – which concerns a 
range of services provided in return for a lump sum paid by the customer. 
According to the Court of Justice, other services, in addition to the short-term 
letting of a holiday home, which give the contract as a whole a character different 
from that of a purely rental contract, may include: information and advice, where 
the travel organiser proposed a range of holiday offers, the reservation of 
accommodation during the period chosen by the customer, the reservation of seats 
in connection with travel arrangements, reception at the destination and the 
possibility of travel cancellation insurance. However, the additional conclusion of 
travel cancellation insurance and insolvency insurance policies do not in 
themselves confer on the rental contract a character different from that of a 
contract concerning a range of services. 
Other services which enter into consideration in the present case include: the 
offering of a range of bungalows with different facilities on the defendant’s 
website (‘information and advice’), the reservation of the booked bungalow on 
behalf of the applicant, reception at the destination and the handing over of the 
keys, the provision of bed linen and the carrying out of cleaning at the end of the 
stay. The present Chamber understands the case-law of the Court of Justice to 
mean that, viewed as a whole, the elements of the supply of services must have 
sufficient weight to give the contract a different character. According to the view 
taken by some authors in the German legal literature, subordinate/ancillary 
services such as the maintenance or cleaning of the property, the changing of linen 
or the provision of on-site assistance are not to be regarded as having sufficient 
weight […]. The question arises as to whether the above circumstances are 
sufficient to assume a complex contract in accordance with the case-law of the 
Court of Justice. 
By contrast, the BGH understands that case-law of the Court of Justice to mean 
that the distinction must be made on the basis of whether the lessor of the holiday 
home, as a professional tour operator, itself undertakes to make available a 
holiday home owned by a third party, or merely acts as an intermediary in the 
conclusion of such a contract with the owner. The weight of the specifically 
agreed other services, in addition to the making available for use, must be 
irrelevant in that regard. This is because, in accordance with the case-law of the 
Court of Justice in Case [C-280/90], Hacker v Euro-Relais GmbH, it is sufficient 
that such a contract between a professional tour operator and a private individual 
typically entails other services, even if no such services had been agreed in the 
specific case […]. 
It would appear to be doubtful whether the above case-law of the BGH is 
compatible with that of the Court of Justice. In accordance with the case-law of 
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the Court of Justice, the decisive factor for examining the scope of the first 
sentence of Article 24(1) of the Brussels Ia Regulation is the distinction between 
pure rental contracts and complex contracts, and not whether the contracting 
party, as a professional tour operator, itself undertakes to make the holiday home 
available for use or merely acts as an intermediary in the conclusion of such a 
contract with the owner of the property […]. Contrary to the view taken by the 
BGH, it is also irrelevant whether proceedings have been brought by the lessor 
against the tenant or vice versa and whether the lessor acts as a professional tour 
operator […]. It would likewise appear to be irrelevant whether the owner of the 
property is the lessor himself or herself or a third party. On the basis of the 
wording of the first sentence of Article 24(1) of the Brussels Ia Regulation, those 
factors are immaterial. 
Since – so far as can be ascertained – the Court of Justice has not ruled on this 
question to date, it must be referred for a preliminary ruling. 
III. 
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