European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Article 24(1) of Regulation No 1215/2012 gives exclusive jurisdiction regarding “rights in rem in immovable property or tenancies of immovable property” to the courts of the Member State where the property is situated. 
The assignment of exclusive jurisdiction to the courts of the Member State in which the property is situated satisfies the need for the proper administration of justice, insofar as …

Rights in rem in immovable property

Article 24(1) of Regulation No 1215/2012 gives exclusive jurisdiction regarding “rights in rem in immovable property or tenancies of immovable property” to the courts of the Member State where the property is situated. 

The assignment of exclusive jurisdiction to the courts of the Member State in which the property is situated satisfies the need for the proper administration of justice, insofar as, in this type of proceedings, disputes result frequently in checks, inquiries and expert assessments which must be carried out on the spot and as tenancies of immovable property are generally governed by special rules, it is preferable that these often complex rules be applied by the courts of the States in which they are in force .

The concept of “rights in rem in immovable property” does not encompass all actions concerning rights in rem in immovable property but only those which come within the scope of the regulation and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with the protection of the powers which attach to their interest . It is not sufficient that a right in rem immovable property be involved in the action or that the action have a link with immovable property: the action must be based on a right in rem and not a right in personam . Thus, opposition proceedings brought by a creditor regarding the proceeds from a judicially ordered auction of an immovable property and seeking, first, a declaration that a competing claim no longer exists due to a counter-claim, and, secondly, the invalidity of the pledge guaranteeing the enforcement of the claim insofar as it is not based on a right in rem do not fall within the exclusive jurisdiction of the courts of the Member State where the property is located . Actions in personam - except for matters relating to  tenancies of immovable property - but also mixed actions  based on a right in personam and seeking to obtain a right in rem, are in effect excluded form the scope of application of Article 24(1). Thus, the “action paulienne” which seeks to render a donation of immovable property effected by a debtor in fraud of the creditor's rights ineffective as against the creditor , an action for a declaration that a person holds immovable property as trustee , an action for rescission of a contract for the sale of immovable property and consequential claim for damages to compensate for the alleged harm , an action seeking to prevent nuisances affecting land emanating from a nuclear power station , do not fall within Article 24(1). On the other hand, an action intended to terminate the co-ownership of immovable property , an action seeking the removal from the land register of notices evidencing the donee's right of ownership  , a mortgage on a building  or an action by which a co-owner seeks an injunction to prevent a co-owner from using an apartment for tourist purposes in breach of the co-ownership agreement , all fall within the jurisdiction of the courts of the Member State in which the property is situated, as such claims produce an erga omnes effect.

Case 73/77 Sanders v Van der Putte [1977] ECR 2383, LawLex200900002011JBJ.

Case C-115/88 Reichert and Kockler v Dresdner Bank [1990] ECR I-27, LawLex200900000447JBJ.

Case C-417/15 Schmidt, Judgment of 16 November 2016, cited above.

Case C-630/17 Anica Milivojevic, Judgment of 14 February 2019, LawLex201900001330JBJ: this does not apply to an action for a declaration of the invalidity of a credit agreement and of the notarized deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement based on a right in personam which can be claimed only against the debtor.

Case C-433/19 Ellmes Property Services Limited, Judgment of 11 November 2020, LawLex202000003086JBJ.

Case C-294/92 Webb [1994] ECR I-1717, LawLex200900002116JBJ. The difference between a right in rem and a right in personam is that the former, existing in an item of property, has effect against the whole world, whereas the latter can only be claimed against the debtor, See Case C-292/93 Lieber v Göbel [1994] ECR I-2535, LawLex200900002118JBJ.

Case C-722/17 Norbert Reitbauer, Judgment of 10 July 2019, LawLex202000001659JBJ.

Case C-417/15 Schmidt, Judgment of 16 November 2016, LawLex201600002121JBJ: an action for the avoidance of a contract of gift on the ground of the donor's incapacity to contract, does not fall within the exclusive jurisdiction of the courts of the Member State in which the property is situated but within the special jurisdiction of the courts of the place of performance of the obligation in question - i.e. in this case consisting of the obligation to convey ownership of the immovable property, which was initially performed in Austria.

Case C-294/92 Webb [1994] ECR I-1717, LawLex200900002116JBJ.

Case C-518/99 Gaillard [2001] ECR I-2771, LawLex200900001028JBJ.

Case C-343/04 CEZ [2006] ECR I-4557, LawLex200900000408JBJ: an action seeking to prevent nuisances affecting land emanating from a nuclear power station does not fall within the exclusive jurisdiction provided for in proceedings relating to rights in rem in immovable property, even though its basis is the interference with a right in rem - in this case immovable property -, since the real and immovable nature of that right is, in this context, of only marginal significance.

Case C-605/14 Virpi Komu, Hanna Ruotsalainen, Ritva Komu, Judgment of 17 December 2015, LawLex201600000701JBJ.

European Business Law

341. Rights in rem in immovable property

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

341. Rights in rem in immovable property

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise