Oberster Gerichtshof, Urteil vom 01/08/2003 1 Ob 221/02k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117856
Date: 2003-08-01
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0801(05)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs are two owners of immovable property in Austria situated close to the Czech border. The Czech company responsible for the construction and operation of a nuclear power station (Temelin) in the Czech Republic as well as their US suppliers were sued by the plaintiffs in Austria. The plaintiffs alleged that, as the nuclear power station was 70 km and 100 km away from their properties respectively, and security standards at the Station were insufficient, a significant danger existed that their immovable property would become unusable. The plaintiff sought, inter alia, a declaration that the defendants were liable for all damages arising as a result of the operation of the nuclear power station, as well as an order that the defendants take suitable precautions against the customary use of their immovable property being endangered by radioactive emissions. The courts of lower instance dismissed the claim on the ground that they lacked international jurisdiction.
In contrast, the Oberste Gerichtshof (AT) holds that the Austrian courts have jurisdiction on the basis of Article 22(1)(2) Brussels I Regulation. The preventive action for an injunction seeks the protection of immovable property from damaging emissions. Thus the action is the exercise of a right in rem, the ownership of the properties. Such an interpretation of the term “rights in rem” arises from both national law and an autonomous interpretation.