Friday, 7 February 2014

The Italian Torpedo: on staying proceedings in exclusive jurisdiction cases - AG Jääskinen in case Weber (C-438/12)

30 January 2014: opinion of AG Jääskinen in case Weber (C-438/12)

Two elderly sisters Weber, Irmengard and Mechthilde, were in a dispute over a piece of land they both partially owned in Germany. In 1971 through a notary act a preemptive right to purchase this lad was entered into a land register for I. Weber. In October 2009 through a notary act M. Weber sold her part of the land (4/10 thereof) to a company, of which her son, domiciled in Italy, is one of managers. She had a right to withdraw from that transaction until 28 March 2010. I. Weber was informed by a notary about this and through a letter of December 2009 she decided to use her pre-emptive right to purchase that land. Two sister signed an agreement in February 2010 and on 2 March 2010 I. Weber paid M. Weber the agreed purchase price. On 15 March 2010 Mechthilde withdrew from the first contract. On 29 March 2010 a case was started in a court in Milan against two sisters in which the Italian company claimed that the pre-emptive right was unlawfully used and that their purchase contract should be recognized as valid. In reply, in July 2010, Irmengard started a case in front of a German court asking them to order Mechthilde to register the change in the ownership of the land in the land register. As you may imagine, one of the matters that arose was as to what courts had jurisdiction etc. and what a German court should do taking into account the fact that an Italian court was seized first - therefore, the issue referred to the CJEU concerned interpretation of the Regulation No 44/2001.

Since this matter even if it concerns a dispute between private persons, relates to immovable property and, therefore, is not strictly a consumer law case we will keep the discussion of the issue short and mention only the primary question related to the CJEU. The AG Jääskinen advises in this case the CJEU to take the view that Art. 22 (1) of the Regulation that gives exclusive jurisdiction over matters related to immovable property to courts of the country in which that property is located encompasses matters related to establishing whether a pre-emptive right to purchase the land was rightfully executed (no surprise here). The AG follows this statement by interpreting Art. 27 (1) as obliging the court last seised to check whether they have exclusive jurisdiction based on Art. 22 (1) which would mean that the court first seised would not have jurisdiction and its judgments would not be recognized on the basis of Art. 35 (1). Current Art. 27 seems rather to oblige the court last seised to await the result of the jurisdiction check by the court first seised and to honor its decisions, but the AG argues that it's formulation "any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established" suggests that in case of exclusive jurisdiction, where the court first seised will never be able to establish its jurisdiction there is no obligation to stay the proceedings for the court last seised. The AG thinks also that the national court should not need to take into account what law will be applicable in the given case or whether the procedure in another Member State would take a long time in deciding whether to stay its proceedings on the basis of Art. 28 (1) of the Regulation, but it should take into account in this test whether the claimant's right to effective legal protection is observed.

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