Opinion of the Advocate General — ECLI:EU:C:2006:13
Date: 2006-01-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Convention on Jurisdiction and the Enforcement of Judgments – Exclusive jurisdiction – Proceedings which have as their object rights in rem in immovable property – Meaning (Brussels Convention of 27 September 1968, Art. 16(1)(a)) Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended most recently by the 1996 Convention, must be interpreted as meaning that an action which seeks to prevent a nuisance affecting or likely to affect land belonging to the applicant, caused by ionising radiation emanating from a nuclear power station situated on the territory of a neighbouring State to that in which the land is situated, does not fall within the scope of that provision. The exclusive jurisdiction of the courts of the Contracting State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of the Brussels Convention and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest. By contrast, if the basis of an action for cessation of a nuisance, possibly preventive in nature, is the interference with a right in rem in immovable property, such an action does not constitute a dispute having as its object rights in rem in immovable property, as the real and immovable nature of that right is, in this context, of only marginal significance. Therefore, the real and immovable nature of the right at issue does not have a decisive influence on the issues to be determined in the dispute in the main proceedings, which would not have been raised in substantially different terms if the right whose protection is sought against the alleged nuisance were of a different type, such as, for example, the right to physical integrity or a personal right. Finally the considerations of sound administration of justice which underlie Article 16(1)(a) are not applicable in such an action and do not, therefore, preclude such an action from remaining outside the scope of that provision. (see paras 27, 30-31, 34-35, operative part)