Posts Tagged Article 22
Schmidt v Schmidt: Family feud again leads to discussion of forum rei sitae & forum connexitatis in Brussels I Recast.
An unusually high proportion of cases under Article 22 (old) or 24 (Recast) Brussels I relate to family disputes on property. Webb v Webb, Weber v Weber, Komu v Komu, and now, C-417/15 Schmidt v Schmidt. It’s all about keeping up with the Joneses.
Kokott AG opined in Schmidt last week – the Opinion is not available in English. Mr Schmidt had gifted a (otherwise unspecified) piece of Vienna real estate to his daughter, who lives in Germany. Ms Schmidt is included in the land register as the owner. Mr Schmidt subsequently sues in Austria for the annulment of the gift due to alleged incapacity at the time of the gift, and for removal of the registration. Is the action caught by Article 24? (in which case Ms Schmidt’s claim of lack of jurisdiction fails).
The Advocate General first of all suggests that the referring court’s request should not be turned down simply because it did not specify the time of seizure: in other words it is not clear whether the case is covered by the old or the Recast Brussels I Regulation. Ms Kokott however suggests the Court should not be pedantic about this and answer the question regardless, seeing as the rule has not changed.
Next up and potentially trickier, is the exclusion of capacity from the scope of application of the Regulation. However the Advocate General is right when she suggest that the exclusions should only be relevant where they concern the main object of the litigation. Not, as here, when they are raised incidentally. (She discusses in some detail the linguistic implications given different wording in the different language versions of the Regulation).
Then to the real question. With respect to the annulment of the (gift) agreement, the object and purpose of plaintiff’s action is not the establishment or confirmation of an erga omnes right in rem. Rather, the confirmation of voidness of an agreement transferring such right, due to incapacity. That this will have erga omnes consequences if successful, is not to the point given the long-established need to apply Article 24 restrictively. In this respect this case is akin to C-294/92 Webb and Webb.
The analysis is different however, the AG suggests, for the request to delete the entry in the land register. This does aim directly at erga omnes consequences under Austrian law.
Ms Kokott subsequently rejects the notion that as a result of part of the suit being subject to Article 24, this should drag the remainder into the exclusive bath with it: at 48: if only because if one were to accept this, forum shopping would be facilitated. Including in its suit a procedure covered by Article 24 would enable plaintiff to draw in a whole range of other issues between the parties.
Finally, the AG suggests joinder of the contractual claim (the nullity of the gift) to the right in rem claim, is possible under Article 8(4) and rejects that national rules of civil procedure should or even can play a role in this respect. This part of the Opinion may be optimistically short. For if the joinder route of Article 8(4) may lead to the same result as the one the AG had just rejected, one assumes there ought to be discretion for the national courts to reject it. Not, as the AG rightly suggests, by reference to national civil procedure rules (that would lead to unequal application) but rather by reference to the (probably) EU inspired rule that abuse of Article 8 be avoided.
The Court will probably not answer all the questions the case raises, particularly on Article 8. Expect this to return.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6
The lady is not for turning. CJEU in Komu v Komu sticks to classic application of exclusive jurisdictional rule for rights in rem in immovable property.
Update 17 December 2016 application of Komu v Komu was made in  EWCA Civ 1292 Magiera v Magiera.
In Case C-605/14, Komu v Komu, the CJEU stuck to its classic applicatio n of the rule of Article 22(1) Brussels I (now Article 24(1) Brussels Recast). This Article prescribes exclusive jurisdiction for (among others) proceedings which have as their object rights in rem in immovable property. Article 25 (now 27) adds that where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction. (emphasis added).
Mr Pekka Komu, Ms Jelena Komu, Ms Ritva Komu, Ms Virpi Komu and Ms Hanna Ruotsalainen are domiciled in Finland and are co-owners of a house situated in Torrevieja (Spain), the first three each with a 25% share and the other two each with a 12.5% share. In addition, Ms Ritva Komu has a right of use, registered in the Spanish Land Register, over the shares held by Ms Virpi Komu and Ms Hanna Ruotsalainen.Wishing to realise the interests that they hold in both properties, and in the absence of agreement on the termination of the relationship of co-ownership, Ms Ritva Komu, Ms Virpi Komu and Ms Ruotsalainen brought an action before the District Court, South Savo, Finland for an order appointing a lawyer to sell the properties and fixing a minimum price for each of the properties. The courts obliged in first instance and queried the extent of Article 22’s rule in appeal.
Co-ownership and rights of use, one assumes, result from an inheritance.
The CJEU calls upon classic case-law, including most recently Weber. At 30 ff it recalls the ‘considerations of sound administration of justice which underlie the first paragraph of Article 22(1) …’ and ‘also support such exclusive jurisdiction in the case of an action intended to terminate the co-ownership of immovable property, as that in the main proceedings.’:
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.
A sound finding given precedent. However I continue to think it questionable whether these reasons, solid as they may have been in 1968, make much sense in current society. It may be more comfortable to have the case heard in Spain for the reasons set out by the Court. But essential? Humankind can perform transcontinental robot-assisted remote telesurgery. But it cannot, it seems, consult the Spanish land registry from a court in Finland. I would suggest it is time to adapt Article 24 in a future amendment of the Regulation.
Lis alibi pendens rule does NOT apply (to the court seized second having such jurisdiction) in the event of exclusive jurisdictional rules – The ECJ in Weber v Weber
In C-438/12 Weber v Weber the ECJ gave helpful clarification of the non-application of the strict lis alibi pendens rules of the Jurisdiction Regulation in the event of infringement of the Regulation’s exclusive jurisdictional rules. This to my knowledge at least had not yet been clearly established by the Court.
Ms I. Weber (I’) and Ms M. Weber (‘M’), are co-owners to the extent of 6/10 and 4/10 of a property in Munich. On the basis of a notarised act of 20 December 1971, a right in rem of pre‑emption over the four-tenths share belonging to M was entered in the Land Register in favour of I. By a notorial contract of 28 October 2009, M sold her four-tenths share to Z. GbR, a company incorporated under German law, of which one of the directors is her son, Mr Calmetta, a lawyer established in Milan. According to one of the clauses in that contract, M, as the seller, reserved a right of withdrawal valid until 28 March 2010 and subject to certain conditions.
Being informed by the notary who had drawn up the contract in Munich, I exercised her right of pre-emption by letter of 18 December 2009. On 25 February 2010, by a contract concluded before that notary, I and M once more expressly recognised the effective exercise of the right of pre-emption by I and agreed that the property should be transferred to her for the same price as that agreed in the contract for sale signed between M and Z. GbR. However, the two parties asked the notary not to carry out the procedures for the registration of the transfer of property in the Land Register until M had made a written declaration before the same notary that she had not exercised her right of withdrawal or that she had waived that right arising from the contract concluded with Z. GbR within the period laid down, which expired on 28 March 2010. On 2 March, I paid the agreed purchase price of EUR 4 million.
By letter of 15 March 2010, M declared that she had exercised her right of withdrawal from the contract of 28 October 2009. By an application of 29 March 2010, Z. GbR brought an action against I and M, before the District Court, Milan, seeking a declaration that the exercise of the right of pre-emption by I was ineffective and invalid, and that the contract concluded between M and that company was valid.
On 15 July 2010, I brought proceedings against M before the Landgericht München, seeking an order that M register the transfer of ownership of the four-tenths share with the Land Register.
The Court of Justice first of all had to decide whether an action seeking a declaration that a right in rem in immovable property has not been validly exercised, falls within the category of proceedings which have as their object right in rem in immovable property, within the meaning of Article 22(1) of Regulation No 44/2001. It held that it did, with the required amount of deference to national law: a right of pre-emption, such as that provided for by Paragraph 1094 of the BGB, which attaches to immovable property and which is registered with the Land Register, produces its effects not only with respect to the debtor, but guarantees the right of the holder of that right to transfer the property also vis-à-vis third parties, so that, if a contract for sale is concluded between a third party and the owner of the property burdened, the proper exercise of that right of pre-emption has the consequence that the sale is without effect with respect to the holder of that right, and the sale is deemed to be concluded between the holder of that right and the owner of the property on the same conditions as those agreed between the latter and the third party.
The next core question was whether Article 27’s lis alibi pendens rule applies in the event of the court second seized having exclusive jurisdiction. Here, the ECJ distinguished Gasser, in which it declined freedom for the court second seized to assume priority on the basis of a choice of court agreement. (A particular use of torpedoeing which is now addressed by the Brussels I-bis Regulation). It refers in particular to the positive obligation included in Article 35 of the Jurisdiction Regulation for courts not to recognise earlier judgments which were held in contravention of Article 22’s exclusive jurisdictional rules. Article 23’s choice of court agreements, by contrast, does not feature in Article 35.
The ECJ’s reference to Article 35 in my view means that the Court’s reasoning extends to all jurisdictional rules included in that article, including the protected categories of consumers and insureds (not, strangely, employees. This will change however following the Brussels I recast). There is lingering doubt however over the impact of the judgment on the application of Article 22(4)’s rule on intellectual property. In Weber (at 56) the Court holds that ‘ In those circumstances, the court second seised is no longer entitled to stay its proceedings or to decline jurisdiction, and it must give a ruling on the substance of the action before it in order to comply with the rule on exclusive jurisdiction.‘ In the application of Article 22(4), this continues to raise the question whether ‘the substance of the action before it’ only concerns the validity of the intellectual property, or also the underlying issue of infringement of such property.
Weber v Weber is a crucial further step in clarifying the lis alibi pendens rule. Sadly, family tussles do often advance the state of the law.
In Ferrexpo, the High Court applied a so-called ‘reflexive’ or ‘mirror’ application of the exclusive jurisdictional rules of Article 22 of the Brussels I Regulation. The case was held in April 2012 – it has only recently come to my attention.
Mr Babakov, a Russian, trading through a variety of companies with registered office in England (collectively known as ‘Gilson’), has a long-running litigation against Mr Zhevago, of Ukrainian nationality, equally trading through a variety of companies, with registered office in Switserland (collectively known as ‘Ferrexpo’). At the core of the dispute lies the control over a Ukrainian mining company named OJSC.
In 2005, Babakov files in the Ukraine, with a view to having a number of shareholder resolutions declared void. These were taken in 2002 and had decided that Gilson’s shares in OJSC were invalid and had to be transferred to Ferrexpo. In 2010 a Ukrainian court held that the shareholder resolutions were indeed invalid. Babakov subsequently initiated new proceedings in the Ukraine, with a view to having the Gilson shares in OJSC restored. On 23 November 2011 the Ukrainian court ordered for Ferrexpo to be joined to this proceeding.
Ferrexpo started a procedure against Gilson in England on 22 November 2011, with a view to declaring that the Ferrexpo shares in OJSC were valid. Gilson argued that the English court had no jurisdiction, for a reflexive application of Articles 22(2) and 28 (part of the lis alibi pendens rule) of the Brussels I Regulation required it to desist. Article 22(2) reads
‘The following courts shall have exclusive jurisdiction, regardless of domicile: (…)
2. in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;’
Ferrexpo argued that 1) the English Courts had jurisdiction on the basis of Article 2 of the Brussels I Regulation, and Gilson’s domicile in the UK; 2) it would not receive a fair trial in the Ukraine, the issue would be resolved fast in an English court, and the English courts enjoy “trust and confidence“.
In Owusu, the Court of Justice famously held that where the (in that case also English) national court had jurisdiction by reason of Article 2 of the Jurisdiction Regulation, it could not decline such jurisdiction on the basis that a Court of another state was a more appropriate forum: forum non conveniens has no place in the Brussels regime. However what Owusu did not resolve, was whether this also applies where the European court wishing to decline jurisdiction, does so because the issue at stake is one of the interests listed in Article 22 of the Regulation (exclusive jurisdictional rules), which just so happens to be located outside of the EU (in the case at issue: shareholder resolutions of a Ukrainian company are the core of the dispute).
The High Court held that Article 22 should so apply: jurisdiction was denied. The decision is problematic, for preparatory works of the Brussels I Regulation indicate quite clearly that the interests that are being protected, are only those located inside the EU (or Lugano States if the application of the Lugano Convention is at stake). The Court could not have been clearer as to the application of Article 2 in Owuso. Granted and as noted, Owusu did not entertain the reflexive application of Article 22, however direction in Owuso is clear. Reference to the ECJ in Ferrexpo would have been merited – although the English courts are reluctant to do so, having burnt their fingers so badly in Owusu.