Summary
In the case of a woman, co-owner with her sister of a property situated in Germany, who, after having concluded a contract with a German company for the sale of her part of property – at the same reserving her the right of withdrawal in case non acceptance of her offer for some shares of a US company –, signs a supplementary document necessary under German law for the transfer of the right to ownership to her sister, who has meanwhile exercised her right in rem of pre-emption, and later informed the German company of her withdrawal from the sale contract, Italian courts do not have jurisdiction, pursuant to Art. 24 of Regulation (EC) No 44/2001 of 22 December 2000, over the claim brought by the German company against both the promissory seller and the promissory buyer seeking first and foremost a declaration that the exercise of the right of pre-emption by the latter was ineffective and invalid and, as a consequence, that the sale contract concluded between the company and the promissory seller was valid and, as an alternative, that the promissory buyer is bound by the same conditions set by the original sale-partners.
On the one hand no submission in favour of the seized Italian court could possibly take place in the case at stake pursuant to Art. 24 of Regulation (EC) No 44/2001, since the issue of the exercise of the right in rem of pre-emption by the promissory buyer must not be considered an independent counter-claim for the ascertainment, as res judicata, of its valid exercise but must rather be deemed to be a mere defence meant to support the defendants’ request to reject all plaintiff’s claims, thus being covered by the defendants’ submission contesting jurisdiction in relation to the claim concerning the exercise of the right of withdrawal by the promissory seller. Moreover, both the plaintiff’s claims and the promissory buyer’s objections concerning the exercise of the right of withdrawal by the promissory seller are to be considered inevitably linked to the issue of the declaration of invalidity of the exercise of the right of pre-emption attached to the property, thus falling into the category of «proceedings which have as their object “rights in rem in immovable property”» (as interpreted by the European Court of Justice in Weber, case C-438/12), reserved under Art. 22 of Regulation (EC) No 44/2001 to the exclusive competence of the court of the place where the property is located.