Virpi Komu and Others v Pekka Komu and Jelena Komu.
Date: 2015-12-17
23. In its case-law on Article 16(1)(a) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36) (‘the Brussels Convention’), which is also relevant for the interpretation of Article 22(1) of Regulation No 44/2001, the Court has already held that, in order to ensure that the rights and obligations arising out of that convention for the Contracting 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 proceedings which have as their object rights in rem in immovable property’ (judgment in Weber , C‑438/12, EU:C:2014:212, paragraph 40 and the case-law cited).
24. Similarly, it is settled case-law of the Court on the Brussels Convention, which can be applied to Regulation No 44/2001, that, in so far as they introduce an exception to the general rules of jurisdiction set out in that regulation and, in particular to the rule set out in Article 2(1) of that regulation, according to which, subject to the regulation, persons domiciled in a Member State shall be sued in the courts of that Member State, the provisions of Article 22(1) of Regulation No 44/2001 must not be given an interpretation broader than is required by their objective. These 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 (see, by analogy, judgment in ČEZ , C‑343/04, EU:C:2006:330, paragraphs 26 and 27 and the case-law cited).
25. As regards the objective pursued by the provisions cited above, according to both the 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 Article 16(1)(a) of the Brussels Convention, which can be applied to the first paragraph of Article 22(1) of Regulation No 44/2001, 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 (see, by analogy, judgment in Weber , C‑438/12, EU:C:2014:212, paragraph 41 and the case-law cited).
26. 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 the Brussels Convention or of Regulation No 44/2001 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 (see, to that effect, judgment in Weber , C‑438/12, EU:C:2014:212, paragraph 42 and the case-law cited).
27. Also, according to settled case-law of the Court, the difference between a right in rem and a right in personam is that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment in Weber , C‑438/12, EU:C:2014:212, paragraph 43 and the case-law cited).
31. The transfer of the right of ownership in the properties at issue in the main proceedings will entail the taking into account of situations of fact and law relating to the linking factor as laid down in the first paragraph of Article 22(1) of Regulation No 44/2001, namely the place where those properties are situated. The same applies, in particular, to the fact that the rights of ownership in the properties and the rights of use encumbering those rights are the subject of entries in the Spanish Land Register in accordance with Spanish law, the fact that rules governing the sale, by auction where appropriate, of those properties are those of the Member State in which they are situated, and the fact that, in the case of disagreement, the obtaining of evidence will be facilitated by proximity to the locus rei sitae. The Court has already held that disputes concerning rights in rem in immovable property, in particular, must generally be decided by applying the rules of the State in which the property is situated, and the disputes which frequently arise require checks, inquiries and expert assessments which have to be carried out there (judgment in ČEZ , C‑343/04, EU:C:2006:330, paragraph 29 and the case-law cited).
32. That case-law can be applied to the case in the main proceedings where, unlike the case which gave rise to the judgment in Lieber (C‑292/93, EU:C:1994:241, paragraph 21) relating to compensation for the use of a dwelling, the determination of the extent of the legal conditions relating to the termination of the relationship of co-ownership, capable of having effect erga omnes, falls within the jurisdiction of the courts of the Member State in which the properties in the main proceedings are situated, as is clear from the case-law cited in paragraph 26 above. Consequently, in a case where the rules of substantive law applicable to the case in the main proceedings would involve an assessment of whether physical partition of the properties is feasible when terminating the relationship of co-ownership, such an assessment would also be capable of giving rise to checks, by means of expert reports, which the courts of the Member State in which those properties are situated would be best placed to order.