Land Oberösterreich v ČEZ as.
Date: 2006-05-18
22. Furthermore, it must be recalled that, under the first subparagraph of Article 1 of the Brussels Convention, the Convention is to apply, whatever court is seised, ‘in civil and commercial matters’ but ‘shall not extend, in particular, to revenue, customs or administrative matters’. It is clear from settled case-law that the concept of ‘civil and commercial matters’ must be regarded as an independent concept which must be interpreted by referring to the objectives and scheme of that convention and the general principles which stem from the corpus of the national legal systems. Therefore, in particular, the scope of the Convention must be essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action (see, in particular, Case 814/79 Rüffer  [1980] ECR 3807, paragraphs 7 and 14).
25. In that connection, it must be recalled that in order to ensure that the rights and obligations arising out of the Brussels Convention for the Contracting States and for individuals concerned are as equal and uniform as possible, an independent definition must be given in Community law to the phrase ‘in proceedings which have as their object rights in rem in immovable property’ (see, in particular, Case C-115/88 Reichert and Kockler  [1990] ECR I-27, paragraph 8).
26. The case‑law of the Court also shows that, in that they introduce an exception to the general rules of jurisdiction set out in the Brussels Convention, the provisions of Article 16 – in particular Article 16(1)(a) – must not be given an interpretation broader than is required by their objective (see, in particular, Case C‑73/04 Klein  [2005] ECR I-8667, paragraph 15 and the case-law cited).
27. It is by way of derogation from the general principle laid down by the first subparagraph of Article 4 of the Brussels Convention, which states that if the defendant is not domiciled in a Contracting State each Contracting State is to apply its own rules of international jurisdiction, that Article 16(1)(a) provides that in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property the courts of the Contracting State where the property is situated are to have exclusive jurisdiction ( Klein , paragraph 14). Furthermore, the provisions of Article 16 have the effect of depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, result in their being brought before a court which is not that of any of them (see, in particular, Reichert and Kockler , paragraph 9).
28. As regards the objective pursued by Article 16(1)(a) of the Brussels Convention, it is clear both from the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1) and the consistent case-law of the Court that the essential reason for the exclusive jurisdiction of the courts of the Contracting State where the property is situated is that the court of the place where property is situated is best placed to deal with matters relating to rights in rem in, and tenancies of, immovable property (see, in particular, Case 73/77 Sanders  [1977] ECR 2383, paragraphs 11 and 12).
29. As regards, in particular, disputes concerning rights in rem in immovable property, they must generally be decided by applying the rules of the State where the property is situated, and the disputes which arise frequently require checks, inquiries and expert assessments which have to be carried out on the spot, so that the assignment of exclusive jurisdiction to the court of the place where the property is situated, which for reasons of proximity is best placed to ascertain the facts satisfactorily, satisfies the need for the proper administration of justice (see, in particular, Sanders , paragraph 13, and Reichert and Kockler , paragraph 10).
30. It is in the light of the interpretative principles thus recalled that the Court held that Article 16(1)(a) of the Brussels Convention must be interpreted as meaning that 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 ( Reichert and Kockler , paragraph 11).
34. An action for cessation of a nuisance, possibly preventive in nature, such as that at issue in the main proceedings, does not constitute a dispute having as its object rights in rem in immovable property either. It is true that the basis of such an action is the interference with a right in rem in immovable property, but the real and immovable nature of that right is, in this context, of only marginal significance. As ČEZ and the Commission point out, 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. Just like the action at issue in the main proceedings, such actions essentially seek an order that the person causing the interference, actual or potential, to a right, for example by failing to comply with current generally recognised technological standards, put an end to it.