1 By order of 27 February 1992, received at the Court on 3 July 1992,
the Court of Appeal, London, referred to the Court for a preliminary ruling
under Article 3 of the Protocol of 3 June 1971 on the interpretation by the
Court of Justice of the Convention of 27 September 1968 on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters
(hereinafter „the Convention“) a question on the interpretation of Article
16(1) of the Convention.
2 The question arose in proceedings between George Lawrence Webb
(„the father“) and his son, Lawrence Desmond Webb („the son“) relating
to immovable property situated in France.
3 In 1971 the father concluded an agreement for the purchase of a flat in
Antibes. He raised the necessary funds in England.
4 The Bank of England authorizations required by United Kingdom
exchange control legislation were obtained on the footing that the
property would be purchased in the name of the son. The necessary
funds were then transferred from the father' s bank account in England
to an account opened in Antibes by the son. In October 1971 the vendor
conveyed legal ownership of the flat to the son.
5 Since then, both the father, with his wife, and the son have used the flat
as a holiday home, with the father bearing the bulk of the outgoings.
6 On 26 March 1990 the father brought an action against the son before
the High Court of Justice for a declaration that the son held the property
as trustee and for an order that the son should execute such documents
as should be required to vest legal ownership of the property in the father.
7 The son challenged the jurisdiction of the English courts. He contended
that, since the action related to a right in rem in immovable property, the
French courts had exclusive jurisdiction. On this point, he relied on Article
16(1) of the Convention, which provides that
„The following courts shall have exclusive jurisdiction, regardless of
domicile:
(1)(a) in proceedings which have as their object rights in rem in
immovable property or tenancies of immovable property, the courts of the
Contracting State in which the property is situated.“
8 In its judgment of 23 May 1991 the High Court found that the father' s
claim was based on a fiduciary relationship between himself and the son
and, further, that the father was not seeking a declaration that he was
the owner, an order for possession, or rectification of the land register
but an order requiring the son to execute such documents as should be
necessary to convey ownership in the flat. The High Court accordingly
concluded that the claim did not relate to rights in rem in immovable
property within the meaning of Article 16(1) of the Convention and
dismissed the objection of lack of jurisdiction.
9 On the merits, the High Court found that the son held the flat under a
resulting trust. In English law, where a person finances the purchase of
property in the name of another, that person is presumed, in the absence
of clear intention to bestow a gift, to have retained the beneficial interest
in the property and the nominal owner is presumed to be a trustee. In
order to rebut that presumption, the son, relying on the presumption of
advancement, contended that the flat had been a gift to him. However,
that argument did not convince the High Court which deduced from the
fact that the flat was used by the father that he intended to keep the
property for himself.
10 The son appealed on the ground that the High Court was wrong to
hold Article 16(1) of the Convention inapplicable. The Court of Appeal,
which was in doubt as to the interpretation to be given to that provision,
requested the Court of Justice to give a preliminary ruling on the following
question:
„Whether on the true interpretation of Article 16(1) of the Brussels
Convention the proceedings in the Chancery Division of the High Court
of Justice, the short title and reference to the record of which is Webb v.
Webb 1990 W. No 2827, are proceedings in respect of which the courts of
France have exclusive jurisdiction.“
11 By its question the national court asks whether an action for a
declaration that a person holds immovable property as trustee and for
an order requiring that person to execute such documents as should be
required to vest the legal ownership in the plaintiff constitutes an action in
rem within the meaning of Article 16(1) of the Convention.
12 The son and the Commission, who consider that the test for applying
Article 16(1) is the plaintiff' s ultimate purpose and that by his action the
father is ultimately seeking to secure ownership of the flat, contend that
the main proceedings are covered by Article 16(1).
13 That argument cannot be accepted.
14 Article 16 confers exclusive jurisdiction in the matter of rights in rem
in immovable property on the courts of the Contracting State in which
the property is situated. In the light of the Court' s judgment in Case
C-115/88 Reichert and Kockler [1990] ECR I-27, where the Court had to
rule on the question whether the exclusive jurisdiction prescribed by that
article applied in respect of an action by a creditor to have a disposition
of immovable property declared ineffective as against him on the ground
that it was made in fraud of his rights by his debtor, it follows that it is
not sufficient, for Article 16(1) to apply, that a right in rem in immovable
property be involved in the action or that the action have a link with
immovable property: the action must be based on a right in rem and
not on a right in personam, save in the case of the exception concerning
tenancies of immovable property.
15 The aim of the proceedings before the national court is to obtain
a declaration that the son holds the flat for the exclusive benefit of
the father and that in that capacity he is under a duty to execute the
documents necessary to convey ownership of the flat to the father. The
father does not claim that he already enjoys rights directly relating to the
property which are enforceable against the whole world, but seeks only to
assert rights as against the son. Consequently, his action is not an action
in rem within the meaning of Article 16(1) of the Convention but an action
in personam.
16 Nor are considerations relating to the proper administration of justice
underlying Article 16(1) of the Convention applicable in this case.
17 As the Court has held, the conferring of exclusive jurisdiction in the
matter of rights in rem in immovable property on the courts of the State
in which the property is situated is justified because actions concerning
rights in rem in immovable property often involve disputes frequently
necessitating checks, inquiries and expert assessments which must be
carried out on the spot (see the judgment in Case 73/77 Sanders v. Van
der Putte [1977] ECR 2383, at paragraph 13).
18 As the father and the United Kingdom rightly point out, the immovable
nature of the property held in trust and its location are irrelevant to
the issues to be determined in the main proceedings which would have
been the same if the dispute had concerned a flat situated in the United
Kingdom or a yacht.
19 The answer to be given to the question submitted to the Court
must therefore be that an action for a declaration that a person holds
immovable property as trustee and for an order requiring that person to
execute such documents as should be required to vest the legal ownership
in the plaintiff does not constitute an action in rem within the meaning of
Article 16(1) of the Convention.
On those grounds,
THE COURT,
in answer to the question referred to it by the Court of Appeal, London, by
order of 27 February 1992, hereby rules:
An action for a declaration that a person holds immovable property as
trustee and for an order requiring that person to execute such documents
as should be required to vest the legal ownership in the plaintiff does
not constitute an action in rem within the meaning of Article 16(1) of the
Convention of 27 September 1968 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters.