I —

The main action which has given rise to the present reference for a preliminary ruling arises out of settlement of accounts between Netherlands subjects who are florists in the Ruhr. It emerges from the file that the action arose in the following way: According to the statement made by Mr Van der Putte, a Netherlands national, residing at that time at Wuppertal-Barmen and already the apparent owner of two flower shops, one of which was situated at Solingen and the other at Wuppertal-Barmen, Mr Sanders, another Netherlands national also residing at that time in the Federal Republic of Germany, took over from the said Van der Putte in February 1973 with effect from 5 March 1973 a florist's business situated at Wuppertal-Elberfeld. The sum due under the usufructuary lease in respect of the occupation of the business premises was fixed at DM 750 per week. For ‘reasons of simplicity’ Sanders paid the rent due under the headlease, amounting to DM 1900 per month, directly to the actual owner of the immovable property, a German insurance company. In addition, Sanders was to pay DM or Hfl 25000 (that point remains obscure) in respect of the goodwill or key money. That agreement was, furthermore, to be governed by the provisions of an agreement concerning the taking over of another shop of the same type situated at Wuppertal-Barmen, which was executed before a notary on 21 August 1972 between Van der Putte, the lessor, and Sanders, the lessee, together with his wife. Sanders was prepared to implement that agreement. However, he informed Van der Putte that the prior assent of his wife was necessary since she was also a party to the lease of the shop at Wuppertal-Barmen. She has not given her assent. In fact, Sanders only implemented the agreement on 17 April 1973 and only began to run the business at Wuppertal-Elberfeld after the President of the Arrondissementsrechtbank (Regional Court), Arnhem, ordered him, by a judgment delivered in summary proceedings on 10 April 1973, to take possession of the said premises or to pay a fine of Hfl 300 for each day for which he was in default. However, the sums agreed by way of the rent due under the head-lease to the owner (DM 1900 per month) and under the usufructuary lease of the business (DM 750 per week), as well as the consideration for the goodwill, were not paid. By a writ of 3 July 1973 Van der Putte claimed, in addition to the payment in respect of the goodwill and the aforementioned arrears of rent, the payment of a sum of Hfl 21794 agreed in writing in respect of the transfer of the stock and various goods. That sum was paid by Sanders up to the amount of Hfl 19635.94. By judgment of 10 January 1974 the Arrondissementsrechtbank, Arnhem, suspended the proceedings and ordered the parties to appear before an examining magistrate for the purposes of an inquiry. Van der Putte appealed against that judgment to the Gerechtshof (Regional Court of Appeal), Arnhem. The owner of the premises situated at Solingen having subsequently terminated the lease to Van der Putte and having dealt directly with Sanders, it appears that Van der Putte requested the Landgericht Wuppertal to order Sanders to give up possession of the property. We have no further information concerning the outcome of those proceedings. In an interim judgment of 3 December 1974 the Gerechtshof, Arnhem, awarded Van der Putte the balance owed to him by Sanders in respect of the transfer of the stock, that is, Hfl 2158.06. It considered that from the evidence put forward it was likely that an agreement existed but permitted Sanders to bring evidence to the contrary. As no such evidence was brought by Sanders the Gerechtshof, Arnhem, gave a final ruling on 4 May 1976 on the heads of claim relating to the tenancy agreement and the goodwill. The claim for payment of the rents was held to be well founded up to 1 January 1976, the date on which Sanders gave notice to terminate the tenancy agreement in dispute and he was ordered to pay the sum of Hfl 25000 to Van der Putte in respect of the goodwill. During the proceedings before the Gerechtshof, Arnhem, Sanders had pleaded that that court had no jurisdiction: even supposing that an agreement had been validly concluded between the parties — which Sanders disputed — such an agreement would have included a clause giving jurisdiction to the court at Wuppertal, the place where the shop was situated. In its final judgment the Gerechtshof, Arnhem, rejected that plea on the basis of the first paragraph of Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which entered into force on 1 February 1973: there was no agreement in writing or oral agreement confirmed in writing providing for such an extension of jurisdiction. In fact, Sanders did not appear solely in order to contest the jurisdiction of the Netherlands court and the question of jurisdiction was actually only raised at a subsequent stage of the proceedings. However, the Gerechtshof, Arnhem, added of its own motion, on the supposed basis of Article 19 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, a dictum relating to Article 16 of that Convention, which was worded as follows: ‘Particular attention must be paid to the provisions of Article 16 (1) of the Convention, to the effect that: “The following courts shall have exclusive jurisdiction, regardless of domicile: (1) in matters relating to rights in rem in, or tenancies of, immovable property, the courts of the Contracting State in which the property is situated;” (a) In the opinion of the Gerechtshof, on the assumption that an agreement between the parties must be held to exist the emphasis falls less on the exploitation of certain immovable property against payment — which moreover Van der Putte himself merely rented — than on the exploitation of a complete business against payment which in the course of the proceedings was referred to as the usufructuary lease of the business; (b) In that respect the reasons which, according to the commentary to the Convention by Paul Jenard, formed the grounds for bringing claims relating to rights in rem in, or tenancies of, immovable property under the exclusive jurisdiction of the courts of the State where the property is situated do not apply, namely that in general tenancies of immovable property are governed by special legal provisions and it is preferable that the application of such provisions should be judged solely by the courts of the State in which such provisions are in force; (c) In those circumstances it is not a claim relating to tenancies within the meaning of Article 16 of the Convention which is at issue, with the result that there is no ground for holding that the Netherlands court lacks jurisdiction.’ It is those grounds which form the subject of an appeal brought by Sanders on a point of law and led the supreme Netherlands court, with the concurrent opinion of its Procureur Generaal, to refer certain questions to you for a preliminary ruling under Articles 2 and 3 of the Protocol of 3 June 1971. The Hoge Raad in fact considered that the exception laid down to the rule in Article 18 of the Convention found expression in Article 19 and that ‘agreements conferring jurisdiction shall have no legal force if … the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 16’ (second paragraph of Article 17). The exclusive jurisdiction based on Article 16 — which must be examined by the court even of its own motion when the recognition or the enforcement of a decision of a court is sought (first paragraph of Article 28 and second paragraph of Article 34) — does not depend on any particular conduct by the parties during or outside the proceedings. It is in those circumstances that the Hoge Raad der Nederlanden requests you, by judgment of 10 June 1977, to give a preliminary ruling on the following questions: 1. ‘Must “tenancies of immovable property” within the meaning of Article 16 down to the end of subparagraph (1) of the Convention also include an agreement to rent under a usufructuary lease [verpachting] a retail business carried on in immovable property rented from a third person by the lessor? 2. If so does the exclusive jurisdiction of the courts of the State where the immovable property is situated also apply to a claim on the basis of such an agreement for (a) payment of the rent of the retail premises under the usufructuary lease: or b) payment by the tenant under the usufructuary lease of the head-rent owed by the lessor to the owner of the immovable property; or (c) payment of consideration for the goodwill of the retail business? 3. Is the answer to the questions set out above affected by the fact that in the proceedings the defendant (the tenant under the usufructuary lease) has contested the existence of the agreement?’