Dansommer A/S v Andreas Götz.
Date: 2000-01-27
19 Finally, it must be pointed out that the fact, mentioned in the question submitted, that the owner of the property and the lessee are not domiciled in the same Contracting State is immaterial, since, as is clear from the actual wording of Article 16 and subject to the proviso in subparagraph 1(b) thereof, which, as has just been held in paragraph 17 above, is not applicable to this case, the domicile of the parties is irrelevant for the purposes of Article 16 of the Convention (see, to this effect, Case 73/77 Sanders v Van der Putte [1977] ECR 2383, paragraph 10).
21 It should be noted in this regard that Article 16, being an exception to the general rule of jurisdiction set out in the first paragraph of Article 2 of the Convention, 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 Sanders, cited above, paragraphs 17 and 18; Case C-115/88 Reichert and Kockler [1990] ECR I-27, paragraph 9; and Case C-292/93 Lieber [1994] ECR I-2535, paragraph 12).
22 So, it is established in case-law that, in order for Article 16(1) of the Brussels Convention to apply, it is not sufficient for the action to be connected with immovable property (Case C-294/92 Webb [1994] ECR I-1717, paragraph 14, and Lieber, cited above, paragraph 13).
23 Nevertheless, it follows from that same case-law that, in a case such as that before the national court, which concerns not a right in rem in immovable property but a tenancy of immovable property, Article 16(1) applies to any proceedings concerning rights and obligations arising under an agreement for the letting of immovable property, irrespective of whether the action is based on a right in rem or on a right in personam (Lieber, paragraphs 10, 13 and 20).
27 It is clear from both the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1, at p. 35) and case-law 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, 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, and Reichert and Kockler, paragraph 10).
28 This interpretation is also borne out by the fact that the Jenard Report (cited above, pp. 34 and 35) states that the jurisdiction rules set out in Article 16 of the Brussels Convention take as their criterion the subject-matter of the action and, with specific regard to the rule of exclusive jurisdiction in the matter of tenancies of immovable property in Article 16(1), the Convention draftsmen intended it to cover, inter alia, disputes over compensation for damage caused by tenants.
30 In that judgment, the Court held, in paragraph 15, that a complex contract concerning a range of services provided in return for a lump sum paid by the customer did not constitute a tenancy of immovable property within the meaning of Article 16(1) of the Brussels Convention.
31 The contract at issue in Hacker had been concluded between a professional travel organiser and its customer at the place where both were domiciled, and even though that contract provided for a service concerning the use of short-term holiday accommodation, it also included other services, such as information and advice, where the travel organiser proposed a range of holiday offers, the reservation of accommodation during the period chosen by the customer, the reservation of seats in connection with travel arrangements, reception at the destination and the possibility of travel cancellation insurance (Hacker, cited above, paragraph 14).