Ellmes Property Services Limited v SP.
Date: 2020-11-11
21


As a preliminary point, it should be recalled that, according to settled case-law, the jurisdiction provided for in Article 4 of Regulation No 1215/2012, namely that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, constitutes the general rule and that it is only by way of derogation from that general rule that that regulation provides for rules of special and exclusive jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Member State (judgment of 5 December 2019, Ordre des avocats du barreau de Dinant, C‑421/18, EU:C:2019:1053, paragraph 24 and the case-law cited).
22


Article 24 of that regulation provides for rules of exclusive jurisdiction, in particular in proceedings which have as their object rights in rem in immovable property, which, as a derogation from that general rule, must be interpreted strictly (see, to that effect, judgment of 10 July 2019, Reitbauer and Others, C‑722/17, EU:C:2019:577, paragraph 38).
23


As regards the exclusive jurisdiction of the courts of the Member State in which the property is situated, provided for in point 1 of Article 24 of Regulation No 1215/2012, it must also be recalled that 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’, in order to ensure its uniform application in all the Member States (judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 97 and the case-law cited).
24


That jurisdiction does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of that regulation 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 (judgment of 10 July 2019, Reitbauer and Others, C‑722/17, EU:C:2019:577, paragraph 44 and the case-law cited).
25


In that context, the Court has also ruled that 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 give rise to 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 10 July 2019, Reitbauer and Others, C‑722/17, EU:C:2019:577, paragraph 45 and the case-law cited).
26


Furthermore, according to settled case-law, the difference between a right in rem and a right in personam lies in the fact that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 31 and the case-law cited).
36


It should be recalled that the conclusion of a contract is not a condition for the application of the rule of special jurisdiction provided for, in matters relating to a contract, in that provision (judgment of 5 December 2019, Ordre des avocats du barreau de Dinant, C‑421/18, EU:C:2019:1053, paragraph 25 and the case-law cited).
37


It is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the application of that rule presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (judgment of 5 December 2019, Ordre des avocats du barreau de Dinant, C‑421/18, EU:C:2019:1053, paragraph 26 and the case-law cited).
38


Furthermore, the Court has already held that co-ownership of an apartment building is established through voluntary acquisition of an apartment together with ownership shares of the communal areas of the property, so that an obligation on the co-owners in respect of the co-ownership must be regarded as a legal obligation freely consented to (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 27, and order of 19 November 2019, INA and Others, C‑200/19, not published, EU:C:2019:985, paragraph 27).
39


In addition, the fact that a co-owner was not a party to the co-ownership agreement concluded by the initial co-owners has no effect on the application of point 1(a) of Article 7 of Regulation No 1215/2012 to a dispute relating to that obligation. By becoming and remaining co-owner of a property in a building, each co-owner agrees to be subject to all the provisions governing the property concerned and the decisions adopted by the general meeting of the co-owners of property in that building (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 29, and order of 19 November 2019, INA and Others, C‑200/19, not published, EU:C:2019:985, paragraph 29).
42


As regards the question whether the place of performance of the obligation on which that action is based is the place where the property is situated, it should be recalled that, under point 1(a) of Article 7 of Regulation No 1215/2012, matters relating to a contract may be assessed in the courts of the place of performance of the obligation in question, namely the obligation corresponding to the contractual right on which the claimant’s action is based (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 39).