61990J0280

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Convention on Jurisdiction and the Enforcement of Judgments - Exclusive jurisdiction - Proceedings relating to tenancies of immovable property - Concept - Letting of holiday accommodation by a business organizing travel - Not applicable - Conditions

(Convention of 27 September 1968, Art. 16(1))

Article 16(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is to be interpreted as not applying to a contract concluded in a Contracting State whereby a business organizing travel with its seat in that State undertakes to procure for a client domiciled in the same State the use for several weeks of holiday accommodation not owned by it in another Contracting State, and to book the travel arrangements. A complex contract of that type, which concerns a range of services provided in return for a lump sum paid by the customer, is outside the scope within which the exclusive jurisdiction laid down in Article 16(1) finds its raison d' être and cannot constitute a "tenancy agreement" within the meaning of that provision.

In Case C-280/90,

REFERENCE to the Court, pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by the Landgericht Koeln (District Court, Cologne) for a preliminary ruling in the action pending before that court between

Elisabeth Hacker

and

Euro-Relais GmbH

on the interpretation of Article 16(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention and to the Protocol on its interpretation by the Court of Justice (amended text published in Official Journal 1978 L 304, p. 77),

THE COURT,

composed of: O. Due, President, F. Grévisse and P.J.G. Kapteyn, (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, M. Díez de Velasco, M. Zuleeg and J.L. Murray, Judges,

Advocate General: M. Darmon,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Euro-Relais, by Mr Kuehn and Mr Jaeger, Rechtsanwaelte,

- the United Kingdom, by H. Kaya, of the Treasury Solicitor' s Department, acting as Agent,

- the Commission of the European Communities, by Henri Etienne and Pieter van Nuffel, members of its Legal Service, acting as Agents, assisted by Wolf-Dietrich Krause-Ablass, Rechtsanwalt,

having regard to the Report for the Hearing,

after hearing the oral observations of Euro-Relais, represented by Joachim Sturm, Rechtsanwalt, the German Government, represented by Joerg Pirrung, Ministerialrat at the Federal Ministry of Justice, acting as Agent, and the Commission, at the hearing on 15 October 1991,

after hearing the Opinion of the Advocate General at the sitting on 10 December 1991,

gives the following

Judgment

1 By order of 28 June 1990, which was received at the Court on 14 September 1990, the Landgericht Koeln (District Court, Cologne) referred to the Court, pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as "the Convention"), two questions on the interpretation of Article 16(1) of the Convention.

2 Those questions were raised in the course of proceedings between Mrs Hacker, who is domiciled in the Federal Republic of Germany, and Euro-Relais GmbH ("Euro-Relais"), carrying on a business as a travel organizer with a head office in the Federal Republic of Germany and which advertises by way of brochures. The proceedings concern a contract described as a "tenancy agreement" concluded by the parties on 5 April 1989 also in the Federal Republic of Germany.

3 Under that contract Euro-Relais undertook, in return for payment, to procure a holiday home situated in Ameland, in the Netherlands, not owned by Euro-Relais, for the use of Mrs Hacker and six other persons accompanying her, for the period from 29 July to 12 August 1989. The contract also provided that, in return for an additional payment, Euro-Relais undertook to arrange the booking of the ferry crossing to Ameland for Mrs Hacker; the cost of the crossing itself was to be paid separately by Mrs Hacker to the ferry company.

4 Mrs Hacker considered that the size of the holiday home was less than that indicated in the Euro-Relais brochure, so that she had been compelled first to rent an additional room and then to cut short her holiday. She commenced proceedings in the Amtsgericht Koeln (Local Court, Cologne) against Euro-Relais, claiming a reduction in the price paid, damages for the cost of renting an additional room and damages for loss of holiday enjoyment.

5 The Amtsgericht rejected Mrs Hacker' s claim and she then appealed to the Landgericht Koeln, which considered that the outcome of the proceedings depended on the interpretation of Article 16(1) of the Convention; it therefore stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

"(1) Is there a tenancy agreement within the meaning of Article 16(1) of the Convention when a travel organizer and a customer who are both domiciled in the Federal Republic of Germany conclude a contract in the Federal Republic of Germany under which the travel organizer undertakes to provide for the use of the customer for a number of weeks a holiday home in the Netherlands not owned by the travel organizer and to arrange the booking of the ferry crossing?

(2) If so, does Article 16(1) of the Convention also apply to actions in which the travel organizer' s customer claims:

(a) a reduction owing to an alleged shortcoming in the holiday home;

(b) damages on the ground that, because of an alleged shortcoming in the holiday home, it was necessary to rent an additional room;

(c) damages for loss of holiday enjoyment?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Question 1

7 Article 16 of the Convention, in the version applicable at the time the dispute arose, provides:

"The following courts shall have exclusive jurisdiction, regardless of domicile:

1. In proceedings which have as their object rights in rem in, or tenancies of, immovable property, the courts of the Contracting State in which the property is situated;

...".

8 As the Court pointed out in its judgment in Case 241/83 Roesler v Rottwinkel [1985] ECR 99, at paragraph 19, the raison d' être of the exclusive jurisdiction conferred by Article 16(1) on the courts of the Contracting State in which the property is situated is the fact that tenancies are closely bound up with the law of immovable property and with the provisions, generally of a mandatory character, governing its use, such as legislation controlling the level of rents and protecting the rights of tenants, including tenant farmers.

9 In the above judgment, the Court also pointed out that Article 16(1) seeks to ensure a rational allocation of jurisdiction by opting for a solution whereby the court having jurisdiction is determined on the basis of its proximity to the property since that court is in a better position to obtain first-hand knowledge of the facts relating to the creation of tenancies and to the performance of the terms thereof (paragraph 20).

10 On those considerations the Court held (at paragraph 24 of the judgment) that the provision in question applied to all tenancies of immovable property irrespective of their special characteristics.

11 However, it must be borne in mind that the Court had previously stated, in its judgment in Case 73/77 Sanders v Van der Putte ([1977] ECR 2383, at paragraphs 15 and 16), that although those considerations explained the assignment of exclusive jurisdiction to the courts of the State in which the immovable property was situated in the case of tenancies of immovable property properly so-called, they did not apply where the principal aim of the agreement was of a different nature.

12 It is also apparent from the same judgment that the assignment, in the interests of the proper administration of justice, of exclusive jurisdiction to the courts of one Contracting State in accordance with Article 16 of the Convention deprives the parties of the choice of the 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 (paragraph 17). Having regard to that consideration the provisions of Article 16 must not be given a wider interpretation than is required by their objective (paragraph 18).

13 On those grounds the Court held that Article 16(1) did not apply to a contract which concerned the operation of a business.

14 The situation is similar with regard to an agreement of the type in dispute in the main proceedings, which is concluded between a travel organizer and a customer in the place where they are both domiciled. Irrespective of its title, and although providing a service concerning the use of short-term holiday accommodation, such an agreement also includes other services, such as 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.

15 A complex contract of that type, which concerns a range of services provided in return for a lump sum paid by the customer, is outside the scope within which the exclusive jurisdiction laid down by Article 16(1) finds its raison d' être and cannot constitute a "tenancy agreement" within the meaning of that article as interpreted in the judgment in Sanders v Van der Putte, cited above.

16 Consequently, the reply to the first question put by the national court must be that Article 16(1) of the Brussels Convention is to be interpreted as not applying to a contract concluded in a Contracting State whereby a business organizing travel with its seat in that State undertakes to procure for a client domiciled in the same State the use for several weeks of holiday accommodation not owned by it in another Contracting State and to book the travel arrangements.

The second question

17 Having regard to the answer given to the first question, it is not necessary to reply to the second question.

Costs

18 The costs incurred by the Federal Republic of Germany, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Landgericht Koeln by order of 28 June 1990, hereby rules:

Article 16(1) of the Brussels Convention is to be interpreted as not applying to a contract concluded in a Contracting State whereby a business organizing travel with its seat in that State undertakes to procure for a client domiciled in the same State the use for several weeks of holiday accommodation not owned by it in another Contracting State, and to book the travel arrangements.