Referring court and Member State
Germany, First Instance, Oberlandesgericht München
Summary
This case concerning the interpretation of Arts 22(1), 27(1) and 28(1) of Brussels I was referred to the CJEU in proceedings between two sisters, co-owners of a property in Munich. M. Weber sold her share to Z. GbR, a company incorporated under German law. According to the sale contract, she reserved a right of withdrawal until a certain date and under certain conditions. I. Weber had a right of pre emption over that share of the property subject to the sale and she exercised her right of pre-emption after being informed by the notary who had drawn up the sale contract. A contract was concluded before that notary which expressly recognised the effective exercise of the right and transfer of the share to I. Weber for the same price agreed in the sale contract signed between M. Weber and Z. GbR. The sisters had asked the notary not to carry out the procedures for the registration of the transfer of property in the Land Register until M. Weber 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. By a letter, M. Weber declared that she had exercised her right of withdrawal. Upon this, Z. GbR brought an action against the sisters in Milan seeking a declaration that the exercise of the right of pre-emption was ineffective and invalid, and that the contract concluded between Ms M. Weber and that company was valid. Then, I. Weber brought proceedings against M. Weber in Germany seeking an order that M. Weber register the transfer of ownership of the share with the Land Register. The German court stayed proceedings based on Art 27(1) and, in the alternative, on Art 28(1) and (3) of Brussels I considering that the proceedings had been already initiated in Milan. I. Weber appealed against that decision before the referring court which considered that, in principle, the conditions in Art 27(1) or, at the very least, in Art 28(1) and (3) of Brussels I had been fulfilled, and asked eight questions to the CJEU on the interpretation of these provisions. In its interpretation, the CJEU considered its case-law on the Brussels Convention and on Brussels I and gave particular weight to the Schlosser Report. The CJEU found the action which sought a declaration before the Italian court that a right in rem in immovable property situated in Germany has not been validly exercised falls within the category of proceedings which have as their object a right in rem in immovable property under Art 22(1). On the lis pendens question, the CJEU observed that since the second seised court has exclusive jurisdiction under Art 22(1), a judgment given by the first seised court which fails to take account of Art 22(1) cannot be recognised in the State where the immovable property is situated pursuant to Art 35(1). It found that in those circumstances, the second seised court cannot stay its proceedings or decline jurisdiction, and that it must give its ruling on the substance in order to comply with the exclusive jurisdiction rule. It interpreted Art 27(1) as meaning that before staying its proceedings the second court seised with exclusive jurisdiction is authorised to consider whether any judgment of the first seised court will be recognised in the other MS. This interpretation by the CJEU which followed the AG Opinion is consistent with the nature of the exclusive jurisdiction rule. This case also gave the CJEU the opportunity to re-consider its highly controversial interpretation in C-116/02 Gasser as regards lis pendens in the context of choice of court agreements but the AG and Third Chamber both preferred to distinguish Weber from Gasser on the basis that there was no equivalent to Art 35(1) of Brussels I applicable at the recognition and enforcement stage to a failure to respect an exclusive choice of court agreement.