(Reference for a preliminary ruling– Judicial cooperation in civil matters– Law applicable to contractual obligations– Regulation (EC) No593/2008

14By its question, the referring court asks, in essence, whether Article6(4)(c) of the Rome I Regulation must be interpreted as meaning that a contract of sale, including a lease agreement and a service agreement, relating to trees planted on leased land for the sole purpose of being harvested for profit, constitutes a ‘contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision.

15As a preliminary point, it should be recalled that, under Article6(2) of the Rome I Regulation, the parties to a consumer contract, that is to say a contract entered into by a consumer with a professional, may choose the law applicable to the contract, in so far as that choice does not have the result of depriving the consumer of the protection afforded to him or her by the provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article6(1) of that regulation.

16Article6(1)(b) of that regulation, which, according to the referring court, applies to the dispute in the main proceedings, provides that a contract entered into by a consumer with a professional is to be governed by the law of the country where the consumer has his or her habitual residence, provided that the professional, by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.

17Furthermore, Article6(4) of the Rome I Regulation sets out the situations in which paragraphs1 and 2 of Article6 do not apply. More specifically, Article6(4)(c) provides that paragraphs1 and 2 do not apply to contracts relating to a right in rem in immovable property or a tenancy of immovable property other than a contract relating to the right to use immovable properties on a timeshare basis within the meaning of Directive 94/47.

18In those circumstances, the application of Austrian law to the dispute in the main proceedings depends on whether the contract at issue in the main proceedings falls within the concept of a ‘contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of Article6(4)(c) of the Rome I Regulation.

19It is in the light of those preliminary considerations that it must be determined whether a contract such as the one at issue in the main proceedings relates to a right in rem in immovable property or a tenancy of immovable property, within the meaning of that provision.

20In that regard, it should be noted that the Rome I Regulation does not define the concept of a ‘contract relating to a right in rem in immovable property or a tenancy of immovable property’, nor does it define a ‘right in rem in immovable property’ or ‘immovable property’.

21According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (judgment of 18October 2016, Nikiforidis, C‑135/15, EU:C:2016:774, paragraph28 and the case-law cited).

22As Article6(4)(c) of the Rome I Regulation makes no express reference to the law of the Member States, it should therefore be interpreted autonomously and uniformly.

23In that regard, it should be added that the fact that trees planted in circumstances such as those at issue in the main proceedings may be treated as immovable property in the various national legal systems cannot have any effect whatsoever.

24As regards, in the first place, the question whether the contract at issue in the main proceedings relates to a ‘right in rem in immovable property’, it must be recalled that, under that contract, the professional undertakes to transfer to the consumer the ownership of trees planted on land for the sole purpose of harvesting them and selling their timber.

25For the right in ownership conveyed by that contract to fall within the concept of a ‘right in rem in immovable property’, those trees must also, before being harvested, be capable of being treated as immovable property for the purposes of Article6(4)(c) of the Rome I Regulation.

26In the present case, it is common case that the transfer of the right of ownership by the professional under the contract at issue in the main proceedings does not concern the land on which the trees concerned are planted, but only the trees. Although it is true that those trees are planted on that land so that they may grow, it is apparent from the order for reference that the main purpose of that contract is to generate income from the sale of the timber obtained after the harvesting of those trees; the ownership of the trees is transferred only at the point in time when they are individually identified, a task which is carried out by the professional until such time as the trees have been harvested and the resulting timber has been sold.

27In particular, by that contract, it was agreed between the parties that the trees in question were planted on the land concerned for the sole purpose of being harvested, at the end of the growing season, for sale of the resulting timber.

28In those circumstances, those trees must be regarded as being the proceeds of the use of the land on which they are planted. Although such proceeds will, as a general rule, share the same legal status as the land on which the trees concerned are planted, the proceeds may nevertheless, by agreement, be the subject of personal rights of which the owner or occupier of that land may dispose separately without affecting the right of ownership or other rights in rem appertaining to that land. A contract which relates to the disposal of the proceeds of the use of land cannot be treated in the same way as a contract which relates to a ‘right in rem in immovable property’, within the meaning of Article6(4)(c) of the Rome I Regulation.

29It follows that a contract relating to trees planted on land for the sole purpose of harvesting them and selling their timber does not relate to a ‘right in rem in immovable property’ within the meaning of that provision.

30As regards, in the second place, the question whether the contract at issue in the main proceedings relates to a ‘tenancy of immovable property’, it should be noted that, under that contract, the consumer is to lease the ground on which the trees concerned are planted for as long as they are standing.

31However, the mere existence of a lease agreement in respect of immovable property, such as land, is insufficient for that contract to be regarded as falling within the scope of Article6(4)(c) of the Rome I Regulation.

32As regards Article16(1)(a) of the Convention of 27September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L299, p.32), which provided, in relation to leases of immovable property, for the exclusive jurisdiction of the courts of the Contracting State in which the property is situated, the Court held that the classification of a lease agreement for the purposes of that provision requires the existence of a sufficiently close link between the contract and the property concerned (see, to that effect, judgment of 13October 2005, Klein, C‑73/04, EU:C:2005:607, paragraph26).

33More specifically, the Court held that a complex contract concerning a range of services provided in return for a lump sum paid by the consumer, such as a contract to provide services beyond the transfer of a right of use which constitutes the subject‑matter of a lease agreement, is outside the scope within which the exclusive jurisdiction laid down by that provision finds its raison d’être and does not constitute a tenancy as such, within the meaning of that provision (see, to that effect, judgment of 13October 2005, Klein, C‑73/04, EU:C:2005:607, paragraph27 and the case-law cited).

34It should be noted that, according to recital7 of the Rome I Regulation, the substantive scope and enacting terms of that regulation should be consistent with Regulation No44/2001. In so far as that regulation was repealed and replaced by Regulation (EU) No1215/2012 of the European Parliament and of the Council of 12December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L351, p.1), that objective of ensuring consistency also applies to that regulation (judgment of 8May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph36).

35Moreover, in so far as Regulation No44/2001 replaced, in relations between the Member States, the Convention of 27September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, that objective of ensuring consistency also applies to that convention, provided, however, that its provisions may be regarded as equivalent to those of Regulations No44/2001 and No1215/2012.

36In the light of the objective of ensuring consistency, referred to in the two preceding paragraphs, the considerations set out in paragraphs32 and 33 above must also be taken into account for the purposes of interpreting Article6(4)(c) of the Rome I Regulation.

37In the present case, the main purpose of the contract at issue in the main proceedings is not the use, in the context of a lease, of the land on which the trees concerned are planted, but, as has been pointed out in paragraph26 above, to generate income from the sale of the timber obtained following the harvest of those trees. As is apparent from the order for reference, the lease provided for in that agreement, which includes only the right to allow those trees to grow and has no purpose other than the acquisition of those trees, is intended merely to enable the sales and services elements provided for in the contract to be carried out.

38In those circumstances, it must be held that an agreement such as the one at issue in the main proceedings does not have a sufficiently close link with the land concerned to be classified as a ‘tenancy of immovable property’ within the meaning of Article6(4)(c) of the Rome I Regulation.

39In the light of all the foregoing, the answer to the question is that Article6(4)(c) of the Rome I Regulation must be interpreted as meaning that a contract of sale, including a lease agreement and a service agreement, relating to trees planted on leased land for the sole purpose of being harvested for profit, does not constitute a ‘contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision.