Judgment of the Court (Fourth Chamber) of 15 January 1985. - Erich Rösler v Horst Rottwinkel. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention, Article 16(1) - Exclusive jurisdiction - Tenancies of immovable property. - Case 241/83.



European Court reports 1985 Page 00099

Spanish special edition Page 00039



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - EXCLUSIVE JURISDICTION - DISPUTES CONCERNING TENANCIES OF IMMOVABLE PROPERTY - CONCEPT - SHORT LETTING OF A HOLIDAY HOME - INCLUDED - OBLIGATIONS OF THE PARTIES UNDER THE TENANCY AGREEMENT - OBLIGATIONS IN RESPECT OF WHICH COURTS HAVE EXCLUSIVE JURISDICTION

( CONVENTION OF 27 SEPTEMBER 1968 , ART . 16 ( 1 ))

Summary

1 . ARTICLE 16 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 APPLIES TO ALL LETTINGS OF IMMOVABLE PROPERTY , EVEN FOR A SHORT TERM , AND EVEN WHERE THEY RELATE ONLY TO THE USE AND OCCUPATION OF A HOLIDAY HOME .

2 . ALL DISPUTES CONCERNING THE OBLIGATIONS OF THE LANDLORD OR OF THE TENANT UNDER A TENANCY , IN PARTICULAR THOSE 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 , FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY ARTICLE 16 ( 1 ) OF THE CONVENTION ON THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED . 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 , DO NOT FALL WITHIN THAT EXCLUSIVE JURISDICTION .

Parties

IN CASE 241/83

REFERENCE TO THE COURT UNDER THE PROTOCOL OF 3 JUNE 1973 TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ERICH ROSLER , BERLIN ,

AND

HORST ROTTWINKEL , BIELEFELD ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 16 ( 1 ) OF THAT CONVENTION CONCERNING THE EXCLUSIVE JURISDICTION IN PROCEEDINGS WHICH HAVE AS THEIR OBJECT RIGHTS IN REM IN , OR TENANCIES OF , IMMOVABLE PROPERTY OF THE COURTS OF THE CONTRACTING STATE IN WHICH THE PROPERTY IS SITUATED ,

Grounds

1 BY ORDER OF 5 OCTOBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 24 OCTOBER 1983 , THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER THE PROTOCOL OF 3 JUNE 1971 TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' THE CONVENTION ' ) TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 16 ( 1 ) OF THAT CONVENTION .

2 BY A WRITTEN AGREEMENT DATED 19 JANUARY 1980 , HORST ROTTWINKEL , THE PLAINTIFF IN THE MAIN PROCEEDINGS , LET A FLAT IN HIS HOLIDAY VILLA AT CANNOBIO IN ITALY TO ERICH ROSLER , THE DEFENDANT IN THE MAIN PROCEEDINGS , FOR THE PERIOD FROM 12 JULY TO 2 AUGUST 1980 . THE RENT AGREED FOR FOUR PERSONS WAS DM 2 625 . BY THE TERMS OF THE AGREEMENT VISITORS WERE NOT ALLOWED TO STAY OVERNIGHT . THE INCIDENTAL CHARGES FOR GAS , WATER AND ELECTRICITY HAD TO BE CALCULATED ACCORDING TO THE QUANTITIES CONSUMED AND THERE WAS ALSO AN EXTRA CHARGE FOR CLEANING AT THE END OF THE LETTING . THE PARTIES FURTHER AGREED THAT THE AGREEMENT WAS TO BE GOVERNED BY GERMAN LAW , THAT BIELEFELD WAS TO BE THE PLACE OF PERFORMANCE AND THAT ITS COURTS WERE TO HAVE JURISDICTION .

3 THE PLAINTIFF IN THE MAIN PROCEEDINGS SPENT HIS HOLIDAY IN THE HOLIDAY VILLA AT THE SAME TIME AS THE DEFENDANT .

4 ON 7 JANUARY 1981 THE PLAINTIFF SUED THE DEFENDANT IN THE LANDGERICHT ( REGIONAL COURT ) BERLIN , FOR DAMAGES AND FOR THE PAYMENT OF OUTSTANDING INCIDENTAL CHARGES . HE CLAIMED THAT THROUGHOUT THE HOLIDAY THE DEFENDANT HAD ACCOMMODATED MORE THAN FOUR PERSONS IN THE HOLIDAY HOME WHICH CAUSED THE CESSPOOL CONSTANTLY TO OVERFLOW , CREATING AN INTOLERABLE SMELL , AND WAS A CONSIDERABLE NUISANCE OWING TO THE NOISE .

5 ACCORDING TO THE PLAINTIFF , HIS AND HIS FAMILY ' S REST AND QUIET HAD BEEN CONSIDERABLY DISTURBED . HE CLAIMED DAMAGES FROM THE DEFENDANT FOR LOSS OF HOLIDAY ENJOYMENT , FOUNDING HIS CLAIM ON A BREACH OF THE LEASE , AND SOUGHT REIMBURSEMENT OF THE COSTS OF TRAVELLING TO THE HOLIDAY RESORT . HE ALSO CLAIMED , UNDER THE TERMS OF THE LEASE , PAYMENT OF INCIDENTAL CHARGES IN RESPECT OF GAS , ELECTRICITY AND WATER AND OF CLEANING AT THE END OF THE LETTING .

6 THE LANDGERICHT BERLIN DISMISSED THE ACTION AS INADMISSIBLE ON THE GROUND THAT , ACCORDING TO ARTICLE 16 ( 1 ) OF THE CONVENTION , THE COURTS OF THE CONTRACTING STATE IN WHICH THE PROPERTY WAS SITUATED , NAMELY ITALY , HAD EXCLUSIVE JURISDICTION TO ENTERTAIN THE PLAINTIFF ' S CLAIMS . THE KAMMERGERICHT ( HIGHER REGIONAL COURT ) IN BERLIN QUASHED THE JUDGMENT OF THE LANDGERICHT AND REFERRED THE CASE BACK TO THAT COURT FOR RE-HEARING AND JUDGMENT .

7 THE DEFENDANT APPEALED AGAINST THE JUDGMENT OF THE KAMMERGERICHT TO THE BUNDESGERICHTSHOF ON A POINT OF LAW .

8 CONSIDERING THAT THE DISPUTE RAISED QUESTIONS AS TO THE INTERPRETATION OF THE CONVENTION , THE BUNDESGERICHTSHOF , BY ORDER OF 5 OCTOBER 1983 , STAYED THE PROCEEDINGS AND SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

' ( 1 ) IS ARTICLE 16 ( 1 ) OF THE CONVENTION APPLICABLE IF A LEASE CONCLUDED BETWEEN PERSONS RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY IS FOR THE SHORT LETTING ONLY OF A HOLIDAY HOME LOCATED IN ITALY AND THE PARTIES TO THE LEASE HAVE AGREED THAT GERMAN LAW IS TO APPLY?

( 2)IF ARTICLE 16 ( 1 ) IS APPLICABLE , DOES IT APPLY TO ACTIONS FOR DAMAGES FOR BREACH OF THE LEASE , PARTICULARLY FOR COMPENSATION FOR LOSS OF HOLIDAY ENJOYMENT AND FOR THE RECOVERY OF INCIDENTAL CHARGES PAYABLE UNDER THE LEASE?

'

9 THE PLAINTIFF SUBMITS THAT ARTICLE 16 ( 1 ) OF THE CONVENTION IS NOT APPLICABLE TO THIS CASE . IN HIS VIEW , THE AGREEMENT IN QUESTION IS FOR THE SHORT LETTING OF A HOLIDAY HOME WHICH , ON AN ECONOMIC VIEW , IS MORE AKIN TO A LODGING AGREEMENT THAN TO A LEASE IN THE PROPER MEANING OF THE WORD . THE CLAIMS INVOLVED ARE PRIMARILY FOR COMPENSATION FOR THE LOSS OF HOLIDAY ENJOYMENT AND FOR DAMAGE TO , OR LOSS OF , MOVABLE PROPERTY . FURTHERMORE , THE PLACE OF PERFORMANCE IS IN THE FEDERAL REPUBLIC OF GERMANY . THE AGREEMENT PROVIDED THAT MONIES DUE , INCLUDING THE RENT , HAD TO BE PAID IN THE FEDERAL REPUBLIC AND THE KEYS ALSO HAD TO BE RETURNED THERE . A COURT INSPECTION OF THE PREMISES IS OUT OF THE QUESTION AS A MEANS OF RESOLVING THE DISPUTE .

10 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TAKES THE VIEW THAT IT WOULD BE CONTRARY TO THE SPIRIT OF ARTICLE 16 ( 1 ) OF THE CONVENTION TO APPLY IT TO CLAIMS ARISING FROM SHORT-TERM LEASES . IT POINTS OUT IN THIS REGARD THAT IN ITS JUDGMENT OF 14 DECEMBER 1977 IN CASE 73/77 , SANDERS V VAN DER PUTTE , ( 1977 ) ECR 2383 THE COURT STATED THAT ARTICLE 16 ( 1 ) MUST NOT BE GIVEN A WIDER INTERPRETATION THAN ITS OBJECTIVE REQUIRES . THE RATIO LEGIS OF ARTICLE 16 ( 1 ) IS THAT TENANCIES OF IMMOVABLE PROPERTY , ESPECIALLY OF DWELLINGS , ARE GENERALLY GOVERNED BY COMPLEX LEGISLATION WHICH IS STRONGLY INFLUENCED BY SOCIAL CONSIDERATIONS AND WHICH IS BEST APPLIED BY THE COURTS OF THE COUNTRY IN WHICH IT IS IN FORCE . HOWEVER , THAT SITUATION DOES NOT ARISE IN THE CASE OF AGREEMENTS WHICH RELATE ONLY TO THE SHORT-TERM LETTING OF HOLIDAY HOMES SITUATED ABROAD . IN SUCH CASES THE INTERESTS INVOLVED DO NOT REQUIRE THE APPLICATION OF SOCIAL LEGISLATION IN THE MATTER OF TENANCIES . IN GERMAN LEGISLATION , FOR EXAMPLE , SHORT-TERM LETTINGS OF HOUSING ACCOMMODATION , WHICH COVER LETTINGS OF HOLIDAY HOMES , ARE EXPRESSLY EXCLUDED FROM THE AMBIT OF SOCIAL LEGISLATION ON TENANCIES .

11 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY ALSO CONSIDERS THAT THE INEXPEDIENCY OF APPLYING ARTICLE 16 ( 1 ) OF THE CONVENTION TO THE LETTING OF HOLIDAY HOMES BECOMES PARTICULARLY CLEAR IF , AS IN THIS CASE , THE PARTIES HAVE MADE THEIR CONTRACT SUBJECT EXCLUSIVELY TO GERMAN LAW AND TO THE JURISDICTION OF THE GERMAN COURTS . THE PRIMARY PURPOSE OF ENTRUSTING THE PROCEEDINGS TO THE COURTS OF THE PLACE WHERE THE PROPERTY IS SITUATED , WHICH IS TO ENABLE THE MANDATORY PROVISIONS OF THE LAW OF THAT PLACE TO APPLY BY MAKING THE FORUM AND APPLICABLE LAW COINCIDE AND , GENERALLY , TO SIMPLIFY THE PROCEEDINGS , IS IRRELEVANT IN THIS CASE .

12 A FURTHER AIM OF ARTICLE 16 ( 1 ) IS THAT THE TENANT OF A DWELLING , WHO AS A GENERAL RULE IS SOCIALLY IN A COMPARATIVELY WEAK POSITION , SHOULD NOT BE PUT AT ANY FURTHER DISADVANTAGE BY THE FACT THAT THE TRIAL TAKES PLACE BEFORE A COURT FAR AWAY FROM HIS PLACE OF RESIDENCE . THAT AIM IS ALSO IRRELEVANT AS FAR AS LEASES OF HOLIDAY HOMES ARE CONCERNED BECAUSE THE LESSEE DOES NOT NORMALLY RESIDE AT THE PLACE WHERE THE HOLIDAY HOME IS SITUATED OR REQUIRE ANY SPECIAL SOCIAL CONSIDERATION .

13 WITH REGARD TO THE SECOND QUESTION , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY POINTS OUT THAT IN ITS JUDGMENT IN SANDERS V VAN DER PUTTE , CITED ABOVE , THE COURT STATED THAT THE SPECIAL CONSIDERATIONS RELATING TO TENANCIES OF IMMOVABLE PROPERTY EXPLAINED WHY EXCLUSIVE JURISDICTION WAS CONFERRED ON THE COURTS OF THE STATE IN WHICH THE IMMOVABLE PROPERTY WAS SITUATED IN THE CASE OF DISPUTES RELATING TO TENANCIES OF IMMOVABLE PROPERTY PROPERLY SO-CALLED , THAT IS TO SAY , IN PARTICULAR , DISPUTES BETWEEN LANDLORDS AND TENANTS AS TO THE EXISTENCE OR INTERPRETATION OF LEASES OR TO COMPENSATION FOR DAMAGE CAUSED BY THE TENANT AND TO THE GIVING UP OF POSSESSION OF THE PREMISES . ACCORDING TO THE RAPPORTEUR OF THE COMMITTEE OF EXPERTS ON THE CONVENTION ( OFFICIAL JOURNAL , 1979 C 59 , P . 1 ), THE RULE CONFERRING EXCLUSIVE JURISDICTION DOES NOT APPLY TO PROCEEDINGS CONCERNED ONLY WITH THE RECOVERY OF RENT , SINCE SUCH PROCEEDINGS CAN BE CONSIDERED TO RELATE TO A SUBJECT-MATTER WHICH IS QUITE DISTINCT FROM THE RENTED PROPERTY ITSELF . THAT VIEW MUST APPLY A FORTIORI TO ACTIONS FOR COMPENSATION FOR INDIRECT DAMAGE ARISING FROM A BREACH OF THE LEASE BY ONE PARTY AND UNRELATED TO THE RENTED PROPERTY ITSELF . THEREFORE , THE PLAINTIFF ' S CLAIMS FOR COMPENSATION FOR LOSS OF HOLIDAY ENJOYMENT AND UNNECESSARILY INCURRED TRAVEL EXPENSES DO NOT FALL UNDER ARTICLE 16 ( 1 ). NOR CAN THERE BE ANY EXCLUSIVE JURISDICTION UNDER THAT PROVISION IN RESPECT OF CLAIMS FOR THE PAYMENT OF INCIDENTAL CHARGES WHICH FORM AN INTEGRAL PART OF THE TOTAL RENT .

14 THE UNITED KINGDOM CONSIDERS THAT THE SCOPE OF ARTICLE 16 ( 1 ) IS TO BE DETERMINED BY REFERENCE TO THE TYPE OF PROCEEDINGS AFFECTING THE IMMOVABLE PROPERTY RATHER THAN TO THE NATURE OF THE LEASE OR OTHER INTEREST IN THAT PROPERTY . IN THIS CASE , THE PLAINTIFF IS NOT MAKING ANY CLAIM FOR RENT BUT IS CLAIMING DAMAGES FOR BREACHES OF THE LEASE AND CONSEQUENTIAL LOSS FLOWING THEREFROM . THE PLAINTIFF ' S CLAIMS DO NOT FALL WITHIN THE CLASS OF DISPUTES MENTIONED BY THE COURT IN SANDERS V VAN DER PUTTE . THE NEED FOR THE PROPER ADMINISTRATION OF JUSTICE DOES NOT REQUIRE CLAIMS , SUCH AS THOSE IN THIS CASE FOR BREACH OF TERMS OF A LEASE AND FOR CONSEQUENTIAL LOSS , TO BE ASSIGNED TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED . SIMILAR ARGUMENTS APPLY TO THE CLAIM BY THE PLAINTIFF FOR INCIDENTAL CHARGES , NAMELY THOSE RELATING TO THE CONSUMPTION OF GAS , ELECTRICITY AND WATER AND FOR CLEANING . THE CLAIMS CONCERNING THE LOSS OF , OR DAMAGE TO , ARTICLES LISTED IN THE INVENTORY DO NOT AFFECT THE RENTED PROPERTY AND OUGHT NOT TO BE REGARDED AS DISPUTES WHICH HAVE AS THEIR OBJECT TENANCIES OF IMMOVABLE PROPERTY FOR THE PURPOSES OF ARTICLE 16 ( 1 ) OF THE CONVENTION . FOR THAT PROVISION TO APPLY , THE OBJECTIVE OF THE PROCEEDINGS MUST BE THE DETERMINATION , ENFORCEMENT OR GIVING EFFECT TO , OR THE TERMINATION OF , RIGHTS OF POSSESSION .

15 THE GOVERNMENT OF THE ITALIAN REPUBLIC TAKES THE VIEW THAT THE REASONS GIVEN BY THE NATIONAL COURT FOR ITS DECISION , NAMELY THAT CONSIDERATIONS OF EXPEDIENCY SUGGEST THAT ARTICLE 16 ( 1 ) SHOULD NOT BE APPLIED TO CASES IN WHICH THE LEASE IS ONLY FOR THE SHORT-TERM LETTING OF A HOLIDAY HOME , BOTH PARTIES HABITUALLY RESIDE IN A COUNTRY OTHER THAN THE ONE IN WHICH THE PROPERTY IS SITUATED AND HAVE AGREED TO APPLY THE SUBSTANTIVE LAW OF THE STATE IN WHICH THEY HABITUALLY RESIDE , ARE NOT OF SUCH A NATURE AS TO EXCLUDE THE APPLICATION OF THAT PROVISION . THE RULE LAID DOWN IN ARTICLE 16 ( 1 ) DOES NOT DISTINGUISH BETWEEN SHORT-TERM AND LONG-TERM LETTINGS OR BETWEEN THE DIFFERENT USES TO WHICH THE PROPERTY IS PUT : IT MAY BE USED FOR PROFESSIONAL , COMMERCIAL OR AGRICULTURAL PURPOSES , AS A DWELLING , FOR HOLIDAYS AND SO FORTH . THE FACT THAT NEITHER CONTRACTING PARTY RESIDES IN ITALY IS IMMATERIAL . THE ARGUMENT BASED ON THE CLAUSE CONCERNING THE APPLICATION OF THE LAW OF A MEMBER STATE OTHER THAN THAT IN WHICH THE PROPERTY IS SITUATED IS UNACCEPTABLE . IN ANY EVENT , IN SOME CIRCUMSTANCES AT LEAST , THE CLAUSE WOULD NOT BE VALID , FOR EXAMPLE IF IT WERE MEANT TO DEFEAT THE APPLICATION OF THE ' FAIR RENT ' LEGISLATION IN ITALY . IF IT WERE ACCEPTED THAT AN AGREEMENT OF THAT KIND , INCORPORATED INTO THE CONTRACT BY MEANS OF A JURISDICTION CLAUSE , MIGHT EVEN DEPRIVE THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED OF JURISDICTION , THE WAY WOULD BE OPEN TO THE POSSIBILITY OF EVADING MANDATORY RULES OF THAT STATE .

16 WITH REGARD TO THE INCIDENTAL CHARGES , THERE CAN BE NO DOUBT , IN THE VIEW OF THE GOVERNMENT OF THE ITALIAN REPUBLIC , THAT THEY ARE RELATED TO THE LEASE ITSELF SINCE THEIR PAYMENT IS A CONTRACTUAL OBLIGATION UNDERTAKEN BY THE TENANT . A DISPUTE OVER SUCH CHARGES MUST CLEARLY FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY ARTICLE 16 ( 1 ). THE POSSIBILITY OF DEPRIVING THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED OF JURISDICTION IN SUCH DISPUTES MIGHT ENABLE MANDATORY RULES TO BE EVADED BY MEANS OF CLEVERLY DRAFTED AGREEMENTS .

17 THE COMMISSION STATES THAT IN SOME CONTRACTING STATES FURNISHED ACCOMMODATION IN GENERAL AND FURNISHED HOLIDAY ACCOMMODATION IN PARTICULAR ARE EXPRESSLY OR IMPLIEDLY EXCLUDED FROM THE MATTERS COVERED BY SPECIAL LEGISLATION FOR THE PROTECTION OF TENANTS . FOR THOSE REASONS IT CONSIDERS THAT THE LETTING FOR CONSIDERATION OF FURNISHED ACCOMMODATION , PARTICULARLY FURNISHED HOLIDAY ACCOMMODATION , DOES NOT COME WITHIN THE SCOPE OF APPLICATION OF ARTICLE 16 ( 1 ).

18 ARTICLE 16 OF THE CONVENTION PROVIDES AS FOLLOWS :

' THE FOLLOWING COURTS SHALL HAVE EXCLUSIVE JURISDICTION , REGARDLESS OF DOMICILE :

( 1 ) IN PROCEEDINGS WHICH HAVE AS THEIR OBJECT RIGHTS IN REM IN , OR TENANCIES OF , IMMOVABLE PROPERTY , THE COURTS OF THE CONTRACTING STATE IN WHICH THE PROPERTY IS SITUATED ;

. . . '

19 THE RAISON D ' ETRE OF THE EXCLUSIVE JURISDICTION CONFERRED BY ARTICLE 16 ( 1 ) ON THE COURTS OF THE CONTRACTING STATE IN WHICH THE PROPERTY IS SITUATED 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 , INCLUDING TENANT FARMERS .

20 ARTICLE 16 ( 1 ) SEEKS TO ENSURE A RATIONAL ALLOCATION OF JURISDICTION BY OPTING FOR A SOLUTION WHEREBY THE COURT HAVING JURISDICTION IS DETERMINED ON THE BASIS OF ITS PROXIMITY TO THE PROPERTY SINCE THAT COURT IS IN A BETTER POSITION TO OBTAIN FIRST-HAND KNOWLEDGE OF THE FACTS RELATING TO THE CREATION OF TENANCIES AND TO THE PERFORMANCE OF THE TERMS THEREOF .

21 THE QUESTION SUBMITTED BY THE BUNDESGERICHTSHOF IS DESIGNED TO ASCERTAIN WHETHER EXCEPTIONS MAY BE MADE TO THE GENERAL RULE LAID DOWN IN ARTICLE 16 OWING TO THE SPECIAL CHARACTER OF CERTAIN TENANCIES , SUCH AS SHORT-TERM LETTINGS OF HOLIDAY HOMES , EVEN THOUGH THE WORDING OF THAT ARTICLE PROVIDES NO INDICATION IN THAT RESPECT .

22 IT MUST BE EMPHASIZED IN THIS REGARD THAT , AS THE ITALIAN GOVERNMENT HAS RIGHTLY POINTED OUT , INHERENT IN ANY EXCEPTION TO THE GENERAL RULE LAID DOWN IN ARTICLE 16 ( 1 ) IS THE RISK OF FURTHER EXTENSIONS WHICH MIGHT CALL IN QUESTION THE APPLICATION OF NATIONAL LEGISLATION GOVERNING THE USE OF IMMOVABLE PROPERTY .

23 ACCOUNT MUST ALSO BE TAKEN OF THE UNCERTAINTY WHICH WOULD BE CREATED IF THE COURTS ALLOWED EXCEPTIONS TO BE MADE TO THE GENERAL RULE LAID DOWN IN ARTICLE 16 ( 1 ), WHICH HAS THE ADVANTAGE OF PROVIDING FOR A CLEAR AND CERTAIN ATTRIBUTION OF JURISDICTION COVERING ALL CIRCUMSTANCES , THUS FULFILLING THE PURPOSE OF THE CONVENTION , WHICH IS TO ASSIGN JURISDICTION IN A CERTAIN AND PREDICTABLE WAY .

24 IT FOLLOWS THAT THE PROVISION IN QUESTION APPLIES TO ALL TENANCIES OF IMMOVABLE PROPERTY IRRESPECTIVE OF THEIR SPECIAL CHARACTERISTICS .

25 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT ARTICLE 16 ( 1 ) OF THE CONVENTION APPLIES TO ALL LETTINGS OF IMMOVABLE PROPERTY , EVEN FOR A SHORT TERM AND EVEN WHERE THEY RELATE ONLY TO THE USE AND OCCUPATION OF A HOLIDAY HOME .

26 WITH REGARD TO THE SECOND QUESTION , IT MUST BE NOTED THAT THE CONVENTION GRANTS EXCLUSIVE JURISDICTION ' IN PROCEEDINGS WHICH HAVE AS THEIR OBJECT . . . TENANCIES OF IMMOVABLE PROPERTY ' . IN ITS JUDGMENT IN SANDERS V VAN DER PUTTE , CITED ABOVE , THE COURT CONSIDERED THAT THAT EXPRESSION COVERS DISPUTES BETWEEN LANDLORDS AND TENANTS AS TO THE EXISTENCE OR THE INTERPRETATION OF LEASES OR TO COMPENSATION FOR DAMAGE CAUSED BY THE TENANT . THE COURT MUST POINT OUT THAT THAT LIST IS NOT EXHAUSTIVE . THE GOVERNMENT OF THE ITALIAN REPUBLIC IS RIGHT IN ARGUING THAT DISPUTES CONCERNING THE PAYMENT OF RENT FALL UNDER THAT EXCLUSIVE JURISDICTION . IT WOULD IN FACT BE CONTRARY TO ONE OF THE AIMS OF THE PROVISION IN QUESTION , NAMELY THE CORRECT APPLICATION OF NATIONAL LEGISLATION ON TENANCIES , TO EXCLUDE FROM THAT EXCLUSIVE JURISDICTION DISPUTES WHICH ARE , IN SOME MEMBER STATES AT LEAST , GOVERNED BY SPECIAL LEGISLATION , SUCH AS THE ITALIAN ' FAIR RENT ' LEGISLATION .

27 LEASES GENERALLY CONTAIN TERMS CONCERNING ENTRY INTO POSSESSION BY THE TENANT , THE USE TO WHICH THE PROPERTY IS TO BE PUT , THE OBLIGATIONS OF THE LANDLORD AND TENANT REGARDING THE MAINTENANCE OF THE PROPERTY , THE DURATION OF THE LEASE AND THE GIVING UP OF POSSESSION TO THE LANDLORD , THE RENT AND THE INCIDENTAL CHARGES TO BE PAID BY THE TENANT , SUCH AS WATER , GAS AND ELECTRICITY CHARGES .

28 DISPUTES CONCERNING THE OBLIGATIONS OF THE LANDLORD OR OF THE TENANT UNDER THE LEASE COME WITHIN THE AMBIT OF ARTICLE 16 ( 1 ) OF THE CONVENTION , BEING ' PROCEEDINGS WHICH HAVE AS THEIR OBJECT . . . TENANCIES OF IMMOVABLE PROPERTY ' . 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 , DO NOT FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY THAT ARTICLE .

29 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE 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 CONFERRED BY ARTICLE 16 ( 1 ) OF THE CONVENTION ON THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED . 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 , DO NOT FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY THAT ARTICLE .

Decision on costs

COSTS

30 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE ITALIAN REPUBLIC , THE UNITED KINGDOM , AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESGERICHTSHOF , BY ORDER OF 3 OCTOBER 1983 , HEREBY RULES :

1 . ARTICLE 16 ( 1 ) OF THE CONVENTION APPLIES TO ALL LETTINGS OF IMMOVABLE PROPERTY , EVEN FOR A SHORT TERM AND EVEN WHERE THEY RELATE ONLY TO THE USE AND OCCUPATION OF A HOLIDAY HOME .

2.ALL DISPUTES CONCERNING THE OBLIGATIONS OF THE LANDLORD OR OF THE TENANT UNDER A TENANCY , IN PARTICULAR THOSE 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 , FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY ARTICLE 16 ( 1 ) OF THE CONVENTION ON THE COURTS OF THE STATE IN WHICH THE PROPERTY IS SITUATED . 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 , DO NOT FALL WITHIN THE EXCLUSIVE JURISDICTION CONFERRED BY THAT ARTICLE .