EUPillar BGH, 16.12.2009 – VIII ZR 119/08

Summary

The parties argued on payment claims from a contract concerning time-sharing of immovable properties in holidays. The defendant had concluded a membership contract with the plaintiff which granted him the possibility to acquire rights of use of immovable property. The defendant hadn’t paid the annual fee for the membership. It was doubtful whether the German courts had the international jurisdiction. The Higher Regional Court affirmed the international jurisdiction pursuant to Art. 22 no. 1 Brussels I (‘tenancies of immovable property’). It considered the main content of the contract to be the right of use of the immovable property and therefore came to the conclusion that the contract concerned tenancies of immovable property. The Federal Court of Justice denied the international jurisdiction of German courts pursuant to Art. 22 Brussels I. It held that a membership contract couldn’t be considered as a tenancy of immovable property if additionally to the right of use the member had further obligations and rights which exceeded the right of use and also economically characterized the contract. Art. 22 Brussels I as a special place of jurisdiction has to be interpreted restrictively. Further, the CJEU stated (C-73/04) that a mixed contract which obliges one of the contractual partners to several different services couldn’t be considered as a ‘tenancy of immovable property’ within the meaning of Art. 22 Brussels I. In the present case the fees for the membership included several other costs such as the expenses of the plaintiff’s hotel complex, cleaning work and administrative tasks. The fact that the members bear a relevant economic risk also provides an argument for excluding this kind of contract from the scope of application of Art. 22 no. 1. Therefore the decision is correct.