Autonome Auslegung und kein Ende?

Titelangaben

Wilke, Felix M.:
Autonome Auslegung und kein Ende?
In: GPR : Zeitschrift für das Privatrecht der Europäischen Union. Bd. 18 (2021) Heft 2 . - S. 57-61.
ISSN 2193-9519
DOI: https://doi.org/10.9785/gpr-2021-180204

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Abstract

The ECJ’s decision in case C-433/1918, Ellmes Property Services ./. SP, concerns the interpretation of Articles 24(1) and 7(1)(a) Brussels Ibis in the case of a cessation order brought by a co-owner of an apartment building against another co-owner for using the building in a way that is contrary to its designated use. In line with prior decisions, the ECJ holds that the designated use must have effect erga omnes in order to be characterised as a right in rem. If not, Article 7(1)(a) Brussels Ibis is supposed to apply, with the place where the property is situated as the “place of performance”. The latter point in particular is highly doubtful, for the ECJ seems to ignore its own case law all the way back to Tessili. To be sure, there is a small caveat in that the Court makes this result “subject to verification by the referring court”. But then this part of the ruling becomes almost paradoxical because that court must now “verify” the answer to the question that it had raised in the first place.