An inspiring judgment be the ECJ has seen the light: ECJ STJUE 16 November 2016, C-417/15, Wolfgang Schmidt vs. Christiane Schmidt, (ECLI:EU:C:2016:881).
These are the facts:
Mr Schmidt, domiciled in Austria, was the owner of immovable property in Vienna (Austria). By a notarial act of 14 November 2013, concluded in Vienna, he gifted the land to his daughter, Ms Schmidt, who has been entered in the land register as the owner of that immovable property from that date. At the time of the contract of gift, Ms Schmidt lived in Germany, where she continues to live. Following a psychiatric report which revealed the existence of serious issues dating back to May 2013, Mr Schmidt was placed under guardianship by a decision of 17 November 2014. By an action brought before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna, Austria) on 24 March 2015, Mr Schmidt, represented by his guardian, sought the avoidance of the contract of gift of 14 November 2013 and, accordingly, the removal of the entry in the land register of Ms Schmidt’s ownership of the immovable property on the ground that the entry was not valid. But Ms Schmidt claimed that the referring court lacked jurisdiction to hear and determine the action in the main proceedings, on the ground that Article 24(1) of Regulation No 1215/2012 did not grant that court jurisdiction since the action did not concern a right in rem in immovable property within the meaning of that provision.
An excellent judgment by the ECJ, high quality resolution. Many lessons to be taken into account should be underlined.
Firstly, an action seeking the avoidance of a gift of immovable property on the ground of the donor’s incapacity to contract does not deal with "the status or legal capacity of natural persons" (Art. 1.2.a) BR I bis).
Secondly, an action seeking the avoidance of a gift of immovable property 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, provided for under Art 24.1 BR I bis).
Thirdly, an action seeking the avoidance of a gift of immovable property on the ground of the donor’s incapacity to contract falls within the special jurisdiction provided for under Art. 7.1 BR I bis, i.e., this is an action on "contractual matters".
Fourthly, an action seeking the removal from the land register of notices evidencing the donee’s right of ownership falls within the exclusive jurisdiction provided for under Art. 24.1 BR I bis.
Fifhly, the concept of "matters relating to rights in rem in immovable property" must be interpreted in an autonomuos way, i.e. that is an European concept, not a national one.
Sixthly, the reason for conferring exclusive jurisdiction on the courts of the Member State in which the property is situated in Art. 24.1 BR I bis is the principle of proximity: the courts of the locus rei sitae are the best placed 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. Nevertheless, sovereingty is always present in that legal provision....
Seventhly, as the court has state more than once, 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.
Eightly, Art. 8.4 BR I bis can be applied. Accordingly, the court of the Member State in which the property is situated has also jurisdiction on the basis of a connection between claims, pursuant to Art. 8.4 BR I bis, to hear and determine the request for the avoidance of a contract of gift of immovable property. Those two claims must be brought against the same defendant and capable.
Actions relating "rights in rem" must be interpreted restrictively. One court (= the court of the Member State in which the property is situated wins), two claims. That is sound administration of justice an efficiency in the field of international jurisdiction. That is a high quality judgment by the ECJ.