Opinion of the Advocate General — ECLI:EU:C:2016:535
Date: 2016-07-07
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 — Judgment of the Court (Second Chamber), 16 November 2016 1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 1215/2012 — Scope — Action seeking the avoidance of a contract of gift of immovable property on the ground of the donor’s incapacity to contract and the removal of an entry in the land register evidencing a right of ownership — Included (European Parliament and Council Regulation No 1215/2012, Art. 1(2)(a)) 2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 1215/2012 — Exclusive jurisdiction — Actions concerning rights in rem in immovable property — Concept — Action seeking the avoidance of a contract of gift of immovable property on the ground of the donor’s incapacity to contract — Precluded — Action falling within special jurisdiction under that regulation (European Parliament and Council Regulation No 1215/2012, Arts 7(1)(a) and 24(1)) 3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 1215/2012 — Exclusive jurisdiction — Actions concerning rights in rem in immovable property — Concept– Action seeking the removal of an entry in the land register evidencing a right of ownership — Included (European Parliament and Council Regulation No 1215/2012, Art. 24(1), first subpara.) 4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 1215/2012 — Special jurisdiction — Jurisdiction in matters relating to a contract — Existence of a connecting factor with an action in matters relating to rights in rem in immovable property — Concept — Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership — Included (European Parliament and Council Regulation No 1215/2012, Art. 8(4)) 1. An action seeking the avoidance of a contract of gift of immovable property on the ground of the donor’s incapacity to contract and the removal from the land register of notices evidencing the donee’s right of ownership comes within the material scope of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. While Article 1(2)(a) of that regulation excludes, inter alia, the status or legal capacity of natural persons, the fact remains that the donor’s capacity to contract does not constitute, in a context of such an action, the main subject matter of the dispute, which relates to the legal validity of a gift, but is rather a preliminary issue to be addressed. (see paras 23-25) 2. The provisions of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action seeking the avoidance of a gift of immovable property on the ground of the donor’s incapacity to contract does not fall within the exclusive jurisdiction of the courts of the Member State in which the property is situated, provided for under Article 24(1) of that regulation, but within the special jurisdiction provided for under Article 7(1)(a) of that regulation. It is not sufficient that the action concern a right in rem in immovable property or that the action have a link with immovable property in order to attract the jurisdiction of the court of the Member State in which the property is situated. On the contrary, the action must be based on a right in rem and not on a right in personam. The fact that the contract for which a declaration of invalidity is sought concerns immovable property is irrelevant to the issue of its validity, the immovable nature of the subject matter of the contract being only of marginal significance in that context. However, it is possible to establish jurisdiction for the request for the avoidance of a contract of gift of immovable property on the basis of Article 7(1)(a) of Regulation No 1215/2012. Under that provision, matters relating to a contract may be assessed in the courts of the place of performance of the obligation in question, namely the obligation corresponding to the contractual right on which the claimant’s action is based. (see paras 34, 36, 38, 39, 43, operative part) 3. An action seeking the removal from the land register of notices evidencing the donee’s right of ownership, based on the invalidity of the conveyance of ownership on the ground of the donor’s incapacity to contract, falls within the exclusive jurisdiction provided for under Article 24(1) of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. A request for removal is, in such a case, based on a right in rem relied on by the donor in the immoveable property concerned and seeks the enforcement of powers arising from a right in rem. (see paras 40, 41, 43, operative part) 4. Since the courts of the Member State in which the property is situated have exclusive jurisdiction to hear and determine the request for removal from the land register of the donor’s right to ownership, that court also has jurisdiction on the basis of a connection between claims, pursuant to Article 8(4) of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to hear and determine the request for the avoidance of a contract of gift of immovable property, if those two claims are brought against the same defendant and are capable of being joined. (see para. 42)