Brigitte and Marcus Klein v Rhodos Management Ltd.
Date: 2005-10-13
14. As a preliminary point, it must be observed that Article 16(1) of the Convention provides for the exclusive jurisdiction of the courts of the Contracting State where the property is situated, in proceedings which have as their object rights in rem in, or tenancies of, immovable property, by way of derogation from the general principle laid down by the first paragraph of Article 4 of the Convention, which is that if the defendant is not domiciled in a Contracting State, each Contracting State is to apply its own rules of international jurisdiction.
15. As an exception to the general rule of jurisdiction set out in the Convention, Article 16 must not be given an interpretation broader than is required by its objective, since the article deprives the parties of the choice of forum which would otherwise be theirs and, in certain cases, results in their being brought before a court which is not that of the domicile of any of them (see Case 73/77 Sanders  [1977] ECR 2383, paragraphs 17 and 18; Case C-115/88 Reichert and Kockler  [1990] ECR I-27, paragraph 9; Case C-292/93 Lieber [1994] ECR I-2535, paragraph 12; and Case C‑8/98 Dansommer  [2000] ECR I-393, paragraph 21).
16. According to both the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1, at p. 35) and the case-law, 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, by carrying out checks, inquiries and expert assessments on the spot, and to apply the rules and practices which are generally those of the State in which the property is situated (see, in particular, Sanders , paragraph 13, Reichert and Kockler , paragraph 10, and Dansommer , paragraph 27). That report also states, with specific regard to the rule of exclusive jurisdiction in the matter of tenancies of immovable property in Article 16(1), that the Convention draftsmen intended it to cover, inter alia, disputes over compensation for damage caused by tenants ( Dansommer , cited above, paragraph 28).
21. The Court has held that a contract which does not only concern the right to use a time-share apartment, but also concerns the provision of separate services of a value higher than that of the right to use the property, is not a contract for the rental of immoveable property within the meaning of Article 3(2)(a) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 372, p. 31) (Case C-423/97 Travel Vac  [1999] ECR I-2195, paragraph 25).
22. Given the link between the Convention and the Community legal order (Case C-398/92 Mund & Fester  [1994] ECR I‑467, paragraph 12, and Case C-7/98 Krombach  [2000] ECR I-1935, paragraph 24), that interpretation must be taken into account for the purposes of the interpretation of the Convention.
27. That finding is borne out by the fact that the membership contract in question provides for the provision of services which are made available to club members on the same terms as those offered to clients of the hotel complex. As the Commission observed, those additional services go beyond the transfer of a right of use which constitutes the subject‑matter of a tenancy agreement. Although the content and nature of the services at issue in the main proceedings are not specified in the order for reference, it must none the less be observed that a complex contract concerning a range of services provided in return for a lump sum paid by the customer is outside the scope within which the exclusive jurisdiction laid down by Article 16(1) of the Convention finds its raison d’être and cannot constitute a tenancy as such within the meaning of that article (Case C-280/90 Hacker  [1992] ECR I‑1111, paragraph 15).