Wolfgang Schmidt v Christiane Schmidt.
Date: 2016-11-16
26


It follows from the wording of the first subparagraph of Article 24(1) of Regulation No 1215/2012 that the courts of the Member State in which the property is situated (forum rei sitae) have exclusive jurisdiction to hear and determine actions in matters relating to rights in rem in immovable property. Since that provision essentially reproduces the content of the first subparagraph of Article 22(1) of Regulation No 44/2001, it must be noted that, in so far as Regulation No 1215/2012 replaces Regulation No 44/2001, the Court’s interpretation of the provisions of the latter regulation also applies to Regulation No 1215/2012, whenever the provisions of the two instruments of EU law may be regarded as equivalent (see, by analogy, judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 22 and the case-law cited).
27


The Court has held with regard to Article 22(1) of Regulation No 44/2001 that, in order to ensure that the rights and obligations arising out of that regulation for the Member States and for the individuals concerned are as equal and as uniform as possible, an independent definition must be given in EU law to the phrase ‘in matters relating to rights in rem in immovable property’ (judgments of 3 April 2014, Weber, C‑438/12, EU:C:2014:212, paragraph 40, and of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 23).
28


Similarly, it is settled case-law of the Court in relation to Regulation No 44/2001 that, in so far as they introduce an exception to the general rules of jurisdiction set out by that regulation and, in particular, to the rule set out in Article 2(1) of that regulation, according to which, subject to the provision of that regulation, persons domiciled in a Member State shall be sued in its courts, the provisions of Article 22(1) of Regulation No 44/2001 must not be given an interpretation broader than is required by their objective. Those provisions have the effect of depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, of resulting in their being brought before a court which is not that of the domicile of any of them (judgment of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 24).
29


As regards the objective pursued by the provisions cited above, it is clear from both the Jenard Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1) and the settled case-law of the Court on the first subparagraph of Article 22(1) of Regulation No 44/2001 that the essential reason for conferring exclusive jurisdiction on the courts of the Contracting State in which the 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 and to apply the rules and practices which are generally those of the State in which the property is situated (judgment of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 25).
30


Furthermore, the Court has stated that the exclusive jurisdiction of the courts of the Contracting State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of that convention or of that regulation respectively and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest (judgment of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 26 and the case-law cited).
31


It is important to note that, according to the settled case-law of the Court, the difference between a right in rem and a right in personam lies in the fact that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 27 and the case-law cited).
34


As regards, in the first place, the request for the avoidance of the contract of gift of immovable property, it is clear from the decision to refer that the request is based on the alleged invalidity of the contract on the ground of the incapacity to contract of the applicant in the main proceedings. However, it is settled case-law that it is not sufficient that the action concerns 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 (see, to that effect, order of 5 April 2001, Gaillard, C‑518/99, EU:C:2001:209, paragraph 16).
36


As was noted by the Advocate General in point 40 of her Opinion, 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 (see, by analogy, judgment of 18 May 2006, ČEZ,C‑343/04, EU:C:2006:330, paragraph 34).
39


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, to that effect, judgment of 6 October 1976, De Bloos, 14/76, EU:C:1976:134, paragraphs 10 to 14). In the present case, the action in the main proceedings is based on the alleged invalidity of the contractual obligation consisting of the conveyance of ownership of the immovable property, which, provided that the contract is valid, must be, and which was initially, performed in Austria.
41


Such an application, seeking the enforcement of powers arising from a right in rem, falls under the exclusive jurisdiction of the courts of the Member State in which the property is situated, pursuant to the first subparagraph of Article 24(1) of Regulation No 1215/2012.