Opinion of the Advocate-General
1. In these proceedings, the Landgericht (Regional Court) Heilbronn (Germany) asks the Court for a preliminary ruling on the interpretation of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Convention). More specifically, the Court is asked to define the scope of Article 16(1) of the Convention, which, in proceedings which have as their object rights in rem in, or tenancies of, immovable property, confers exclusive jurisdiction on the courts of the place in which the property is situated.
The facts and relevant legislation
2. In 1995, Mr Götz, a German national who is resident in Germany, rented from Dansommer A/S (hereinafter Dansommer), a Danish limited company, a house situated in Denmark, with a view to spending a holiday there for a period of 15 days.
The property was not owned by Dansommer but by a private individual resident in Denmark. It appears from the order for reference that Dansommer merely acted as an intermediary in the transaction.
Under the general terms and conditions of the contract, the price paid by Mr Götz as consideration also included, in addition to the use of the property during the contractual period, a premium for insurance in his favour in the event of the cancellation of the trip. They also provided that Dansommer guaranteed reimbursement of the travel costs borne by the client. Dansommer was not under an obligation to provide any services other than those just mentioned.
3. After Mr Götz had stayed at the property in question, Dansommer brought proceedings against him before the Amtsgericht (Local Court) Heilbronn. It claimed that the defendant had failed to clean the house properly before his departure and complained about damage to the carpeting and to the oven safety mechanism.
The referring court explains that Dansommer has brought the main proceedings following subrogation to the rights of the owner of the house.
4. The action was dismissed and Dansommer appealed to the Landgericht Heilbronn, the referring court in these proceedings. It considers that the case requires a decision on a preliminary issue of jurisdiction governed by the Brussels Convention. That Convention lays down special rules in respect of proceedings which have as their object rights in rem in immovable property and tenancies of immovable property, which fall under the exclusive jurisdiction of the courts of the place where the property is situated. In particular, the provision of the Convention which is relevant here is Article 16(1), whose wording is as follows:
The following courts shall have exclusive jurisdiction, regardless of domicile:
1.(a) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated;
(b) however, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Contracting State in which the defendant is domiciled shall also have jurisdiction, provided that the landlord and the tenant are natural persons and are domiciled in the same Contracting State.
5. The referring court points out that Article 16(1)(b) does not apply in this case since the plaintiff is domiciled in Denmark, while the tenant is resident in Germany. It therefore asks this Court whether the contract at issue in the main proceedings falls within the scope of Article 16(1)(a). If that were the case, the matter would fall under the exclusive jurisdiction of the Danish courts. The Landgericht has therefore stayed the proceedings and referred the following question to the Court for a preliminary ruling:
Is Article 16(1)(a) of the Brussels Convention applicable if the tour operator's performance obligation is limited to making available a holiday home and automatic provision of travel costs and cancellation insurance, but the owner and the lessee of the holiday home are not domiciled in the same Contracting State?
The substance
6. Firstly, it is necessary to point out, as the referring court has observed, that this case must be examined in the light of Article 16(1)(a) and not of Article 16(1)(b). The latter provision requires that both parties should be natural persons, domiciled in the same Contracting State. Those conditions are not satisfied in this case: Dansommer is a limited company incorporated in Denmark, whilst Mr Götz is a natural person resident in Germany.
The issue referred to the Court therefore turns on the question whether Article 16(1)(a) applies in this case. In respect of that, two different arguments have been advanced, which can be summarised as follows.
At first sight, the contract concluded between Mr Götz and Dansommer cannot be characterised as a lease within the meaning of Article 16 of the Convention. It would, rather, seem to be a complex contractual relationship having as its object the performance of tourist services on the part of a professional operator, Dansommer, in favour of a consumer, Mr Götz. Since there is no element referable to a letting agreement, the rule providing for the exclusive jurisdiction of the forum rei sitae under Article 16 of the Convention does not apply.
The argument to the contrary, on the other hand, is that Article 16 is applicable on the basis that the relationship in question has the character of a lease. The purpose of the contract concluded between the parties, it is argued, is that of guaranteeing Mr Götz enjoyment of immovable property for the agreed period. The other services agreed between the parties (insurance in the event of cancellation and a guarantee against travel costs) were merely ancillary and did not alter that purpose.
7. I will state at once that, in my opinion, the argument that Article 16 of the Convention does not apply is not supported either by the scope of that provision or by the case-law of the Court.
With reference to the first aspect - namely, that relating to the scope of the provision - we should recall that Article 16(1) of the Convention establishes exclusive special jurisdiction, which cannot be derogated from by the parties, in favour of the courts of the place where the immovable property is situated. The ratio legis of this division of jurisdiction - as Advocate General Darmon stated in the Webb case - rests on the principle of proximity ...: those courts, in fact, ... 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. In the view of the Court, this consideration - inspired by the interests of a proper administration of justice - explains the assignment of exclusive jurisdiction to the courts of the State in which the immovable property is situated in ... disputes between lessors and tenants as to the existence or interpretation of leases or to compensation for damage caused by the tenant.
The ratio decidendi set out above provides, in my opinion, a decisive key to interpretation for reaching a decision in this case. If it is, indeed, true that the case-law tends not to give Article 16 a wider interpretation than is required by its objective, that does not mean that an excessively restricted scope should be attributed to that provision, with the risk of frustrating the principle on which the provision is based. Now, the main proceedings are specifically for compensation for damage claimed to have been caused by Mr Götz to the property in question. And, in accordance with the Court's case-law, the requirement to remit such proceedings to the judgment of the courts of the place in which the property is situated - that is to say, the Danish courts - is justified precisely having regard to the purpose of Article 16(1)(a).
8. After all, this conclusion is confirmed by the case-law of the Court, which has specified in detail the legal claims falling within the scope of Article 16(1) of the Convention. I am referring, in particular, to the judgment in the Rösler case, from which we can draw two important points of guidance for the present case.
The first is that the provision in question applies to all lettings of immovable property, even for a short term, and even when they relate only to the use and occupation of a holiday home. Therefore, the mere fact that immovable property is made available for a short holiday - precisely as happened in the present case - does not prevent Article 16(1) from applying.
The second important pointer for resolving the present case is that the Court, again in the Rösler case, drew a distinction between legal claims directly connected with the letting - in respect of which the courts of the place have exclusive jurisdiction - and those which have only an indirect nexus with the use of the immovable property, one not justifying the application of Article 16(1). Now, among disputes directly connected with lettings, that judgment specifically mentioned those arising in the present main proceedings: namely, those relating to the proper use of the immovable property and repairing of damage caused by the tenant.
In accordance with that case-law, I therefore consider that the case before the referring court falls within the scope of Article 16(1)(a): the claim made by the plaintiff in the main proceedings refers directly to the use of the immovable property which has been let, within the meaning of the judgment in Rösler. And this requires that the claim should be dealt with by the courts of the place where the immovable property is situated.
9. Nor do I consider that the solution I have set forth above can be called in question on the basis of the Court's judgment in Hacker. In that case, the Court excluded the applicability of Article 16(1), by reference to a complex contract, in which the use of immovable property was no more than a (non-predominant) element in a range of services provided in return for a lump sum paid by the customer .... Such services - additional to the mere use of the accommodation for a short holiday period - were information and advice, where the travel organiser proposes 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, the reception at the destination and, possibly, travel cancellation insurance.
The present case is different, however. The contractual relationship between Dansommer and Mr Götz does not have as its object a range of heterogeneous services of the kind described in Hacker. The justification for such a relationship - or, more precisely, the function of the contract - consisted principally in guaranteeing to Mr Götz the use of immovable property, even if only for a limited period of time, for tourist purposes. Besides this main function, no provision was made for further services of any other kind, such as to change the character of the contract. The only provisions not directly connected with the use of the immovable property, which the referring court mentions, were the cancellation insurance and the guarantee against travel costs. These are, evidently, ancillary clauses, having a neutral character in relation to the nature of the contract to which they are supplementary, and they could be inserted in any contract without thereby affecting its character.
Therefore, unlike in the Hacker case, we have here a contract which is not concerned with the provision of a complex range of services but only with the use of immovable property in return for payment. And this is the typical purpose of a lease, within the meaning of Article 16(1)(a) of the Convention, as interpreted by the Court's case-law.
10. Finally, I do not consider that the mere fact that Dansommer is not the owner of the immovable property in question can exclude the applicability of Article 16(1) of the Convention. As the referring court explains, Dansommer is acting in the main proceedings following its subrogation to the rights of the owner: that means that it is subrogated to the legal position of the holder of the rights in rem and exercises them in legal proceedings as if it were the owner. In other words, the subrogation does not alter the nature of the relationship which is the subject of the claim, which remains unaltered, apart from the substitution of parties which it has brought about.
The judgment of the Court in the Shearson Lehman Hutton case does not, in my opinion, affect this conclusion. In that case, the issue was whether the special rules provided for by Article 13 et seq. of the Convention, in respect of contracts entered into by consumers, could be invoked by a company which could not be classified as a consumer, but which simply acted in the capacity of assignee of the rights of a consumer. The Court, quite rightly, excluded this possibility, pointing out that the Convention had the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party. It held, on that basis, that the protective role fulfilled by those provisions implies that the application of the rules of special jurisdiction laid down to that end by the Convention should not be extended to persons for whom that protection is not justified. In other words, the Convention protects the consumer only in so far as he personally is the plaintiff or defendant in proceedings.
However, that reasoning cannot be applied in this case. The special jurisdiction under Article 16 is not, in fact, inspired by any personal favour towards the holder of the right in rem in immovable property. It is, rather, justified by an objective requirement: that of assigning proceedings in respect of rights in rem in immovable property and the letting of immovable property to the courts in the best position, by reason of their territorial proximity, to ensure that the matter is dealt with. In other words, the aim is to have a rational division of jurisdiction, giving preference to the forum rei sitae in order to ensure a proper administration of justice. And this is still the requirement - and must, therefore, be satisfied - regardless whether the proceedings are brought directly by the owner or by some other person subrogated to his rights.
Conclusion
11. In view of the considerations set forth above, I propose that the Court should reply in the following manner to the question referred for a preliminary ruling by the Landgericht Heilbronn:
Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is to be interpreted as applying to a situation in which the owner and the lessee of immovable property are not domiciled in the same Contracting State and the contractual obligation of the tour operator is limited simply to making available holiday accommodation to which are added purely ancillary provisions, namely travel cancellation insurance and a guarantee of reimbursement of travel costs.
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