Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

The Brussels Convention*

ADRIAN BRIGGS

Four cases were decided during the year. Dominant among the common threads were the familiar pair: provisions of the Convention which derogate from the right of a defendant to defend at home will be construed narrowly; and the core concepts of the Convention are to be given an autonomous interpretation. With that said, however, the cases are notable as much for what they do not say as for the things they do. The third case below, especially, raises (and fails to resolve) issues of extreme importance which, in England at least, will provide fruitful scope for argument. In the circumstances it is appropriate to express more than quiet disappointment at the year's jurisprudence.


I. Case C-115/88 Reichert v Dresdner Bank1

Reichert, domiciled in Germany and indebted to the Dresdner Bank, itself also established in Germany, owned land in France. He conveyed this land to his son by a notarial deed; and when the Bank learned of this they suspected that the motive for the gift had been to defraud it as a creditor of the donor. Proceedings were commenced against Reichert in France, pursuant to Article 11672 of the Code civil, for a declaration that the gift was ineffective as against the Bank. If successful the action would not have divested the son of title to the land, but would have subjected his title to the right of the Bank to execute on the land.

Reichert being domiciled in Germany, the French courts had jurisdiction, if at all, on the basis of Article 16 or Article 5(3). As to this latter, it could be said that the non-contractual liability of Reichert arose from a harmful event (the allegedly-fraudulent conveyance) which occurred in France. The Report for the hearing suggests that this argument was still a live issue, but the reference actually made to the Court by the Cour d'Appel, Aix-en- Provence, related only to Article 16. It appears that the French court thought it had jurisdiction, if at all, only on this ground. The Court held that it did not.

Article 16 gives exclusive jurisdiction, 'in proceedings which have as their object rights in rem in . . . immovable property' to the courts of the situs.3

____________________
*
© Adrian Briggs, 1990, Fellow of St. Edmund Hall, Oxford.
1
[ 1990] ECR 1-27.
2
The so-called action paulienne.
3
Regardless of domicile; but the land must be in a contracting State.

-481-

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