Mrs. Berthier is a French citizen who has lived in Bilbao for more than 20 years.

In
2001 she donated to her children, Pierre and Francesca (both French and Spanish dual
nationals) several lands in Bizkaia so that they could take possession of the fruits, but
with the obligation to return them to their mother when she claimed them. Pierre is
domiciled in France and Francesca in Andorra.

On December 7, 2014, on the occasion of the family gathering held at Mrs. Berthier's
home on the occasion of her 78th birthday celebration, there was a big family quarrel
during which Pierre and Francesca severely insulted their mother. For this reason, Mrs.
Berthier decided to revoke the donation and verbally communicated this to her children
in a telephone conversation in which she gave them 7 days to return the keys.

None of the brothers left the farms, not even when they received notarial summons at
their homes.

In February 2021, Mrs. Berthier filed before the Courts of Bilbao a claim and
declaration of extinction of usufruct against her two sons. The claim was referred to
Bilbao First Instance Court No. 1, which admitted it for processing and ordered the
defendants to be summoned.

Francesca appeared in the proceedings in due time and answered the claim by means of
a counterclaim in which, in addition to requesting acquittal with respect to the claim,
she requested that the Court declare that she had acquired ownership of the properties
by usucapion.

Pierre appeared in the proceedings within the first ten days to answer the claim and
declined the jurisdiction on the grounds that his mother should have sued her before the
French courts:

a) Are the Spanish courts or the French courts competent to hear Mrs. Berthier's
claim against her two sons?
According to Regulation Brussels I, there is an exclusive jurisdiction rule
contained in article 24(1), which establishes that proceedings which have as their
object rights in rem in immovable property or tenancies of immovable property,
the courts who will have exclusive jurisdiction are the courts of the Member
State in which the property is situated.

Therefore, given that Mrs. Berthier is asking for the extinction of usufruct (right
in rem) against her two sons and the immovable property is in Bizkaia (Spain),
the Spanish courts are competent to hear the claim against her two sons.

b) And if instead of asking for the extinction of the usufruct, she had asked for
revoking the donation?
 According to Regulation Brussels I, there is still an exclusive jurisdiction rule
regarding rights in rem in immovable property, given that “revoking the
donation” means revoking the donation of the usufruct over the immovable
property. Therefore, the rule is still the courts where the immovable property is
located, which is Bizkaia (Spain).

c) Would the same courts have jurisdiction to hear Francesca's counterclaim?

Yes. According to Regulation Brussels I, there is no exclusive jurisdiction as

regards to counter-claims, there is no valid agreement but there is an special
jurisdiction rule, art.8(3) which establishes that on a counter-claim arising from
the same contract or facts on which the original claim was based, the competent
courts are the ones which the original claim is pending.

Therefore, given that Francesca posed a counterclaim to her mother’s, that is, a
counterclaim arising from the same facts, the competent courts will be the ones
in Bilbao.

+ We see that, in addition, Francesca requested the Court to declare that she had
acquired the ownership of the properties by usucapion. Therefore, following the
special jurisdiction rule of article 8(4), in matters relating to a contract, if the
action may be combined with an action against the same defendant in matters
relating to rights in rem in immovable property, in the court of the Member State
in which the property is situated, which are Spanish Courts, because Francesca
requested an action regarding the same defendant and rights in rem in
immovable property (usucapion).

d) Has Pierre correctly contested jurisdiction?

No, because according to Regulation Brussels I, the competent courts are the
ones where the immovable property is located, so the French Courts are not
competent to hear the claim in this case. Article 24(1).

Let us imagine that Mrs. Berthier has an Alzheimer's problem and during the
proceedings Mrs. Berthier's capacity to revoke the gift is challenged.

a) What problem of application arises?

That Regulation Brussels I shall not apply, according to article 1(2)a), to the
status or legal capacity of natural persons. Therefore, there is a problem with the
MATERIAL SCOPE of application of RBI.

We would have to check if Lugano Convention applies, which neither does,

according to article 1(2)a).
 Therefore, we would have to check the Organic Law on the Judiciary of Spain.
According to article 22 quáter b), LOPJ is applicable since it establishes « in
matters relating to the capacity of individuals and measures to protect the
elderly or their assets, where their habitual residence is in Spain ».

b) Would the Spanish courts or the French courts be competent to decide on Mrs.
Berthier's capacity?

According to article 22 quáter b) (LOPJ), the Spanish courts are competent to

decide on Mrs.Berthier’s capacity is she has her habitual residence in Spain.
Given that she has been living in Bilbao (Spain) for more than 20 years, we can
consider Spanish courts competent.