Oberster Gerichtshof, Beschluß vom 26/07/2006 3 Ob 134/06m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0121101
Date: 2006-07-26
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82006AT0726(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
In 2001, the Province of Upper Austria had brought a claim before the Landesgericht of Linz (AT), seeking an order against the operator of a power plant in the Czech Republic to put an end to the influences through ionising radiation emanating from the power plant on certain pieces of land in Austria. The question regarding jurisdiction was referred to the ECJ for a preliminary ruling. The proceedings regarding jurisdiction had as their object the definition of „rights in rem“, as in literature, it is partially held that actions for cessation of a nuisance can concern rights in rem, however, these rights are regarded as mere prerequisites and not as the subject matter of the claim. An action for an injunction shall be rather classified under Article 5(3) of the Brussels Convention. The ECJ held that Article 16(1)(a) Brussels Convention was not applicable. After the ruling of the ECJ, the OGH had to determine the appeal.
Since the Brussels Convention had to be dropped as jurisdiction basis, the court had to decide on the basis of the national jurisdiction (öJN): With the exception of Article 16(1), which is not applicable in this case, where the defendant does not have a domicile within the territory of a Contracting State of the Brussels Convention, as in this case, the jurisdiction of the courts of a Contracting State is determined according to the State’s own laws. Applying Paras 27(a) and 81 öJN, the OGH found that the Landesgericht Linz, in whose district the immovable property in question was situated, had jurisdiction over a claim brought by the Province of Upper Austria which, had as its object the prevention of future inadmissible emissions. As the court had local jurisdiction, the national jurisdiction also had to be affirmed.