The judgment under comment is STJUE, B. Andrew Kerr v. Pavlo Postnov
and Natalia Postnova, Case C-25/18, 8
May 2019, which concerns a request for a preliminary ruling, pursuant to
Article 267 TFEU, by the Okrazhen sad — Blagoevgrad (Provincial Court, Blagoevgrad,
Bulgaria), by decision of 19 December 2017, received at the Court on 16 January
2018, which concerns the interpretation of Article 7.1(a) of Regulation (EU) No
1215/2012, concerning jurisdiction, the recognition and enforcement of
judgments in civil and commercial matters, and Article 4.1.b and (c) of
Regulation (EC) No 593/2008 on the law applicable to contractual obligations
(Rome I), in the context of a dispute concerning non-payment of the annual fees
of a community of owners in horizontally property.
The facts at the subject of that request for a preliminary ruling are
as follows:
― Mr. Postnov and Ms. Postnova, domiciled in Dublin, Ireland,
own an apartment that is part of a community in horizontally property located
in Bansko (Bulgaria).
― Agreements on annual quotas for the maintenance of common
elements were adopted at the annual community meeting of that property.
― Mr. Kerr, in his role as manager of that property,
brought an action before the Rayonen sad Razlog (Court of First Instance,
Razlog, Bulgaria) seeking that Mr Postnov and Ms Postnova be ordered to pay the
unpaid annual fees and to pay compensation for late payment.
― By order which it decided that claim, the Rayonen sad
Razlog (Court of First Instance, Razlog) held that, under Article 4(1) of
Regulation No 1215/2012, it lacked the power to hear the dispute of Mr. Kerr
with Mr. Postnov and Ms Postnova, since they were domiciled in Dublin and the
conditions for the application of the exceptions to the rule of general
jurisdiction contained in that provision were not satisfied.
Mr. Kerr brought an action against that order before the
referring court, which decided to stay the proceedings and to refer two main
questions to the Court for a preliminary ruling, which are:
1. If agreements of
communities of owners, which lack legal personality, create a 'contractual
obligation' for the purpose of determining international jurisdiction in
accordance with Article 7(1)(a) of the Regulation.
2. If it must be considered
that agreements of communities of owners on costs for the maintenance of
buildings must be classified as 'contracts for the provision of services'
within the meaning of Article 4(1)(b) of [Regulation No 593/2008] or as
contracts on a 'real right' or 'lease' within the meaning of Article 4(1)(c) of
that regulation?'
What Article
4.1 of the Regulation says is that, in general, persons domiciled in one Member
State shall be subject, whatever their nationality, to the courts of that State,
and, in accordance with Article 5, may only be sued before the courts of
another Member State under the same Regulation (Article 2 to 7) , laying down
Article 7 which is possible to do so: '(a) in contractual matters, before the
court of the place where the obligation under appeal has been fulfilled or must
be fulfilled', which, according to subparagraph (b), it is 'in the case of a supply of services, the
place of the Member State in which, according to the contract, have been or
should be provided'.
The question
raised in Case C-25/18 –which is not trivial for the owners´ communities– is,
in short, whether the payment of community fees approved at the owners' community
meeting can be regarded as contractual matters, despite the absence of a
contract itself, and in such a case whether it could be regarded as a provision
of services, which would determine the jurisdiction of the court in which the
property is located, in the face of the general jurisdiction of the defendant's
domicile.
The Court of Justice of the European Union makes a number of considerations and states:
― The conclusion of a contract is not a condition for the
application of the rule of jurisdiction laid down in Article 7 of the
Regulation.
― However, it is essential for it to be applicable, on the
contrary, to identify an obligation, since the jurisdiction of the national
court under that provision is determined on the basis of the place where the
obligation to serve as the basis for the claim has been or should be fulfilled,
and that the concept of 'contractual matters' within the meaning of that
provision cannot be understood as referring to a situation in which there is no
commitment freely undertaken by one party to the other.
― That obligations which
are intended to pay an amount of money and which are based on the links between
an association and its members must be regarded as included in the 'contractual
matter', since accession to an association creates, between partners, close
links of the same type as those established between the parties in a contract.
― That while it is true
that participation in a community of owners is required by law, it is no less
so than the details of the administration of the common elements of the property
in question are, where appropriate, contractually regulated and that adherence
to the community is done through the voluntary acquisition of a home together
with the corresponding share of participation in the common elements of the
property , so that an obligation of the owners with regard to the community,
such as that at issue in the main proceedings, must be regarded as a freely
assumed legal obligation, without any impact on the fact that the owners
concerned have not participated in or opposed the adoption of this agreement
since, when acquiring and retaining the co-owner status of a property, each
co-owner consents to submit to all the provisions of the act governing the
corresponding horizontally owned property and to the agreements approved by the
general meeting of owners.
― That the action before
the referring court concerns the enforcement of an obligation to pay the
contribution of the persons concerned to the charges of the property in which
they are owned and the amount of which was fixed by the general meeting of owners,
and, consequently, must be regarded as not
having as its object a real real estate right, but a provision of services
within the meaning of Article 4(1)(b) of that regulation.
In conclusion of all the foregoing, the Court (First Chamber) states that:
1) 'Article7(1)(a) of Regulation (EU) No 1215/2012 of the
European Parliament and of the Council of 12 December 2012 on jurisdiction, the
recognition and enforcement of judgments in civil and commercial matters must
be interpreted as meaning that a dispute having the object of a payment
obligation arising from an agreement of the general meeting of owners of a community
in horizontally property which has no legal personality and which has been
constituted in particular by law to exercise certain rights, which has been
approved by the majority of its members band which binds all its members,
belongs to the area of 'contractual matters' , within the meaning of this
provision.
2) Article 4(1)(b) of Regulation (EC) No 593/2008 of the
European Parliament and of the Council of 17 June 2008, on the law applicable
to contractual obligations (Rome I), it must be interpreted as meaning that a
dispute, such as that raised in the main proceedings, which concerns an
obligation to pay resulting from an agreement of the general meeting of owners
of a community in horizontally property, relating to the costs of maintaining
the common elements of that property, must be considered a dispute relating to
a contract for the provision of services, within the meaning of that provision'.
In short, the Court of Justice of the European Union
declares the jurisdiction of the courts of place in which the property is
located in the face of the general jurisdiction of the defendant's domicile,
which is certainly good news for the communities of owners of any country
belonging to the Union which, otherwise, would have had to face a serious
problem in these cases of claiming quotas to persons, national or foreign,
domiciled in other countries.
José Ignacio Martínez Pallarés
