Opinion of Advocate General Richard de la Tour delivered on 29 June 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:535
• Date: 29 June 2023

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 29 June 2023 (1)

Case C‑497/22

EM

v

Roompot Service BV

(Request for a preliminary ruling from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Exclusive jurisdiction – First subparagraph of Article 24(1) – Disputes regarding tenancies of immovable property – Booking of a bungalow located in a holiday park – Short-term letting or making available concluded between a private individual and a tourism professional operating that park – Further services)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of the first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2)

2. The request has been made in proceedings between EM, domiciled in Germany, and Roompot Service BV, which has its registered office in the Netherlands and operates a holiday park comprising tourist accommodation, situated in that Member State, in respect of the repayment of the price paid for the short-term letting of one of the bungalows in that park, plus interest and costs.

3. I will set out the reasons why I consider, principally, that the dispute concerns a complex contract which, therefore, does not fall within the exclusive jurisdiction envisaged by Regulation No 1215/2012 in relation to tenancies of immovable property. In the alternative, if the Court of Justice were to find that the contract at issue falls within the scope of the first subparagraph of Article 24(1) of that regulation, I would be of the opinion that the claim in the main proceedings relates to that contract and also falls within the scope of that provision.

II. Legal context

4. Section 6 of Chapter II of Regulation No 1215/2012, entitled ‘Exclusive jurisdiction’, states as follows in Article 24(1):

‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:

(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.

However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State’.

III. The facts in the main proceedings and the question referred for a preliminary ruling

5. On 23 June 2020, EM, who is domiciled in Germany, made a booking via the internet on the website of Roompot Service, (3) which has its registered office in the Netherlands, for a bungalow at the ‘Waterpark Zwartkruis’ holiday park, (4) situated at Noardburgum in that Member State, for the period from 31 December 2020 to 4 January 2021 and for a group of nine people who were members of more than two different households.

6. The booking was for a rental price of EUR 1 902.80, which EM paid in full, and included the provision of bed linen and cleaning at the end of the stay.

7. Waterpark Zwartkruis is a water park with bungalows located directly on a lake, each with a separate jetty. Boats and canoes can be hired for an additional charge.

8. Roompot Service informed EM by email, prior to arrival and at her request, that Waterpark Zwartkruis was open during the period of her booking despite the COVID-19 pandemic, but that, due to the laws in the Netherlands, it was only possible for her to stay in the accommodation with her family and a maximum of two people from another household in one bungalow. She was also offered the opportunity to rebook her stay for a later date.

9. EM did not stay at the accommodation and did not rebook her stay. She was repaid the amount of EUR 300 by Roompot Service.

10. EM brought an action against Roompot Service before the Amtsgericht Neuss (Local Court, Neuss, Germany) seeking repayment of the remainder of the rental price, in the amount of EUR 1 602.80, plus interest and costs. Roompot Service contested the international jurisdiction of the German courts. That action was dismissed as unfounded by judgment delivered on 1 October 2021.

11. EM lodged an appeal before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), which questions the exclusive international jurisdiction of the courts of the Netherlands to hear the main proceedings, in accordance with the first subparagraph of Article 24(1) of Regulation No 1215/2012.

12. That court states that it is clear from the three relevant decisions of the Court of Justice concerning the letting of holiday homes abroad, interpreting Article 16(1) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (5) the content of which has remained essentially the same in Regulation No 1215/2012 – namely judgments of 15 January 1985, Rösler, (6) of 26 February 1992, Hacker, (7) and of 27 January 2000, Dansommer, (8) – that these contracts are, in principle, subject to the exclusive jurisdiction of the courts of the place where the property in question is located. According to the Court, an exception could only be made where the contract was complex in nature in that it concerned a range of services provided in return for a lump sum paid by the customer. (9)

13. That court noted, first, that in the present case other services were the offer on Roompot Service’s internet page, under the heading ‘information and advice’, of different bungalows with different facilities, the booking made for EM, reception at the destination and the handing over of the keys, the provision of bed linen and the carrying out of cleaning at the end of the stay. According to its understanding of the Court’s case-law, these services, taken as a whole, must have sufficient weight to give the contract a complex character.

14. Secondly, according to the view taken by some authors in the German legal literature, minor ancillary services, such as the maintenance or cleaning of the property, the changing of linen or the reception at the destination are of lesser importance, such that the additional services at issue in the main proceedings are not sufficient to establish the existence of a complex contract.

15. The referring court also pointed out that the Bundesgerichtshof (Federal Court of Justice, Germany) has given a different reading to the Court’s judgments. (10) Based on the judgment in Hacker and the judgment in Dansommer, the referring court held that the determination of jurisdiction on the basis of the first subparagraph of Article 24(1) of Regulation No 1215/2012 depends solely on whether the professional tour operator is obliged to make available the use of a holiday home owned by a third party. In such a situation, this provision would not apply. On the other hand, if the professional tour operator merely acts as an intermediary in a lease concluded with the owner, the above provision would apply.

16. The referring court is questioning whether this interpretation is compatible with the case-law of the Court of Justice.

17. In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the first [subparagraph] of Article 24(1) of Regulation [No 1215/2012] be interpreted as meaning that a contract which is concluded between a private individual and a commercial lessor of holiday homes in relation to the short-term letting of a bungalow in a holiday park operated by the lessor, and which provides for cleaning at the end of the stay and the provision of bed linen as further services in addition to the mere letting of the bungalow, is subject to the exclusive jurisdiction of the State in which the rented property is situated, irrespective of whether the holiday bungalow is owned by the lessor or by a third party?’

18. Written observations were submitted by EM and the European Commission.

IV. Analysis

19. In essence, the referring court is asking about the relevant criteria to be taken into consideration in order to classify a contract relating to the short-term use of a bungalow in a holiday park as a tenancy of immovable property, within the meaning of the first subparagraph of Article 24(1) of Regulation No 1215/2012, or as a complex contract relating to a package of services.

20. The provisions of the first subparagraph of Article 24(1) of that regulation are equivalent to those of paragraph 1 of Article 16 (now paragraph 1(a)) (11) of the Brussels Convention and the first subparagraph of Article 22(1) of Regulation (EC) No 44/2001, (12) such that the interpretation given by the Court of Justice with regard to the latter provisions also applies to the interpretation of the former. (13)

21. It should be noted that, according to the Court’s settled case-law:

– as regards the objective pursued by those provisions, the essential reason for conferring exclusive jurisdiction on the courts of the Member State in which the immovable property is situated is that the courts of the locus rei sitae are the best placed, for reasons of proximity, 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; and

– as regards tenancies of immovable property, exclusive jurisdiction is justified by the complexity of the relationship of landlord and tenant, which...