Norbert Lieber v Willi S. Göbel and Siegrid Göbel.
Date: 1994-06-09
10 It must be noted to begin with that, as the German Government correctly pointed out, a settlement such as that in issue here, the object of which was to transfer ownership of immovable property, does not constitute a tenancy of immovable property within the meaning of Article 16(1) of the Brussels Convention. That term applies to agreements for the letting of immovable property (see the judgment in Case 241/83 Roesler v Rottwinkel [1985] ECR 99, paragraphs 24 and 25). It follows that compensation for the use of property following the annulment of a transfer of ownership of that property cannot be regarded as a right relating to a tenancy of immovable property and fall within Article 16(1) of the Brussels Convention on that basis.
12 The Court has consistently held (see inter alia the judgment in Case C-115/88 Reichert and Kockler [1990] ECR I-27, paragraph 9) that Article 16 must not be given a wider interpretation than is required by its objective, since it results in depriving 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 any of them.
13 It follows from that judgment and from the judgment in Case C-294/92 Webb, 17 May 1994, not yet published in the ECR, paragraph 14, that in order for Article 16(1) to apply, it is not sufficient that the action concerns a right in rem in immovable property or that the action is connected with immovable property. The action must be based on a right in rem and not, apart from the exception for tenancies of immovable property, on a right in personam.
20 Secondly, the mere fact that in a case such as the present one the compensation payable is to be calculated according to the principles governing tenancies does not justify the application of Article 16(1) to a situation where no tenancy is involved. The relationship of landlord and tenant comprises a series of rights and obligations in addition to that relating to rent. That relationship is governed by special legislative provisions, some of a mandatory nature, of the State where the immovable property which is the subject of the lease is situated, for example, provisions determining who is responsible for maintaining the property and paying land taxes, provisions governing the duties of the occupier of the property as against the neighbours, and provisions controlling or restricting the landlord' s right to retake possession of the property on expiry of the lease. It is the complex nature of that relationship and the interest of the State in which the property is situated in ensuring that those provisions are complied with which justify the exclusive jurisdiction conferred on that State in cases concerning tenancies. Those reasons do not apply where there is no relationship of landlord and tenant.
21 Thirdly, while it may be easier for the court of the Contracting State in which the immovable property is situated to ascertain the level of rents within its area with a view to determining the amount of compensation payable, it is equally possible for a court in another Member State to consult a local expert in order to obtain the necessary information, as indeed the Landgericht Frankfurt am Main did at first instance in the main proceedings.