Norbert Reitbauer and Others v Enrico Casamassima.
Date: 2019-07-10
36


As a preliminary point, it should be recalled that it is settled case-law that, in so far as Regulation No 1215/2012 repeals and replaces Regulation No 44/2001 which, in turn, replaces the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by subsequent accession conventions for the new Member States, the Court’s interpretation of the provisions of the latter legal instruments also applies to Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ (see, to that effect, judgments of 31 May 2018, Nothartová, C‑306/17, EU:C:2018:360, paragraph 18; of 15 November 2018, Kuhn, C‑308/17, EU:C:2018:911, paragraph 31; and of 28 February 2019, Gradbeništvo Korana, C‑579/17, EU:C:2019:162, paragraph 45 and the case-law cited).
38


It is only by way of derogation from that general rule that the courts of the defendant’s domicile have jurisdiction that Article 24 of Regulation No 1215/2012 provides for rules of exclusive jurisdiction, in particular in proceedings which have as their object rights in rem in immovable property and proceedings concerned with the enforcement of judgments. Those specific rules of jurisdiction must, therefore, be interpreted strictly.
44


With regard to the jurisdiction of the courts of the State in which the property is situated, as provided for in Article 24(1) of Regulation No 1215/2012, the Court has repeatedly held that that exclusive jurisdiction does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of Regulation No 1215/2012 and are actions which seek, first, to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and, secondly, to provide the holders of those rights with protection for the powers which attach to their interest (judgments of 3 April 2014, Weber, C‑438/12, EU:C:2014:212, paragraph 42; of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 26; and of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 30).
45


Accordingly, it is not sufficient that the action concerns a right in rem in immovable property or that the action has 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 (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 34).
47


Although it is true that the existence of the claim served as the basis of the creation of the pledge and for the subsequent enforcement, the claim for set-off is not based on a right in rem. The issue of whether Mr Casamassima’s claim vis-à-vis his debtor no longer exists due to a counter-claim is not, therefore, linked to the grounds on which exclusive jurisdiction may be conferred on the courts for the place where the property is situated, namely the need to conduct checks, inquiries and expert assessments in that place (see, to that effect, judgment of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 31 and the case-law cited).
48


With regard, in the second place, to the ground by which Reitbauer and Others dispute the merits of the notarial act acknowledging the debt drawn up between Mr Casamassima and Ms C. on 13 June 2014, which served as the basis for the enforcement, and seek a declaration that that act cannot be effective against them, it must be observed that the examination of such an argument does not involve the assessment of facts or the application of rules and practices of the locus rei sitae in such a way as to justify conferring jurisdiction on a court of the Member State in which the property is situated (judgment of 10 January 1990, Reichert and Kockler, C‑115/88, EU:C:1990:3, paragraph 12).
49


Such a ground of opposition, which the referring court equates with an action for avoidance, is based on the creditor’s personal claim against the debtor and seeks to protect whatever security he may have over the debtor’s estate (judgment of 4 October 2018, Feniks, C‑337/17, EU:C:2018:805, paragraph 40).
52


In accordance with the case-law of the Court, actions intended to obtain a decision in proceedings relating to recourse to force, constraint or distrain on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments come within the scope of Article 24(5) of Regulation No 1215/2012 (see, to that effect, judgment of 26 March 1992, Reichert and Kockler, C‑261/90, EU:C:1992:149, paragraph 28).
54


In addition, as is apparent from the case-law of the Court, the specificity of the connection required by Article 16(5) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by subsequent accession conventions for the new Member States, the provisions of which were reproduced in Article 24(5) of Regulation No 1215/2012, means that a party cannot make use of the jurisdiction conferred by that provision on the courts of the place of enforcement in order to bring before those courts, by way of an exception, a dispute which falls within the jurisdiction of the courts of another Member State (see, to that effect, judgment of 4 July 1985, AS-Autoteile Service, 220/84, EU:C:1985:302, paragraph 17).
58


In that regard, the Court has held that, once it is brought on the basis of the creditor’s rights created upon the conclusion of a contract, an action for avoidance falls within ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of Regulation No 1215/2012 (judgment of 4 October 2018, Feniks, C‑337/17, EU:C:2018:805, paragraph 44).