Oberster Gerichtshof, Beschluß vom 21/07/2004 3 Ob 266/03v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119165
Date: 2004-07-21
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0721(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, the state of Upper Austria (AT), is the owner of immovable property located in Upper Austria, which is leased for agricultural use. The defendant is the operator of a nuclear power plant in the Czech Republic. The state sought injunctive relief in the Austrian courts to prevent damage to its property caused by ionising radiation issuing from the defendant's property. The plaintiff relied on Article 16(1)(a) Brussels Convention. The defendant contested the lack of jurisdiction of the courts on the basis that Article 16 does not found jurisdiction over actions for protection against pollution. Furthermore, it claimed that such claims relate to tort law and fall under Article 5(3) Brussels Convention.
The OGH (AT) holds, citing the jurisprudence of the ECJ (C-115/88 – Reichert/Dresdner Bank), that Article 16(1)(a) only covers claims which are aimed at determining the extent of the existing amount of immovable property, the ownership, the tenure or the existence of other rights in rem and to secure the protection of the privileges connected with the legal status for the holder of the rights. It ought to be clarified whether the provision also applies to actions for protection against pollution under para. 364(2) of the Austrian General Civil Code. The OGH referrs the following questions for a preliminary ruling to the ECJ: Is the phrase "in proceedings which have as their object rights in rem in immovable property " (…) in Article 16(1)(a) to be interpreted as meaning that it also covers (preventive) forbearance claims, with which the interdiction of the pollution of a realty, the owner of which is the plaintiff, caused by a realty situated in a neighbouring State – which is not a Member of the EU – (outgoing nuisance from a nuclear power plant in the Czech Republic through ionising radiation), is sought according to Para. 364(2) Austrian General Civil Code?