Case C-343/04, Land Oberösterreich v. ČEZ

In the present case, the Court was confronted with, as Advocate General Poiares Maduro eloquently described in his Opinion: “a straightforward classic situation in which the owner of one piece of land seeks to prevent the alleged effects on his property of emissions originating from a neighbouring property.” (para. 2)

The question here was whether Austrian courts, where the land allegedly affected was located, have jurisdiction to hear such a preventive action under Article 16(1)(a) of the
Brussels Convention, which states:

“The following courts shall have exclusive jurisdiction, regardless of domicile: ... in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated”.

The present case concerned the question whether the words “proceedings which have as their object rights in rem in immovable property”, include an action which seeks to prevent a nuisance caused by ionising radiation emanating from a nuclear power plant situated on the territory of a neighbouring State.

In 2001, the Province of Upper Austria, situated 60 km from the Temelín nuclear power station, brought an action against ČEZ, the operator of the plant, which for 70% is owned by the Czech State.

The action sought principally to stop the influences on the Province of Upper Austria’s land caused by the ionising radiation emitted by this plant, in so far as they exceeded current generally recognised technological standards.

ČEZ submitted that the Austrian courts lacked jurisdiction, arguing that Article 16(1)(a) of the Brussels Convention does not apply to actions for prevention of a nuisance.

It argued that such an action is compensatory in nature and falls within Article 5(3) of the Brussels Convention, which states that "a person domiciled in a Contracting State may in another Contracting State be sued … in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred".

The Landesgericht Linz declined jurisdiction and, in appeal, the Oberster Gerichtshof referred to the Court of Justice, asking whether Article 16(1)(a) of the Brussels convention applied to the present proceedings.

The Court argued 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 the property is situated is best placed to deal with matters relating to rights in rem in immovable property.

The Court reiterated that Article 16(1)(a) only covers those 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).


The provision hence does not apply to an action for cessation of a nuisance.

The Court argued that “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.” (para. 34)

The Court furthermore argued, referring to Sanders, that “considerations of sound administration of justice, which underlie Article 16(1)(a) of the Brussels Convention” were not applicable to the present proceedings.

In that case, the Court had held that “actions concerning rights in rem in immovable property are to be judged according to the rules of the state in which the immovable property is situated since the disputes which arise result frequently in checks, inquiries and expert assessments which must be carried out on the spot, with the result that the assignment of exclusive jurisdiction satisfies the need for the proper administration of justice”. (Sanders, para. 13)

The Court now argued it cannot be considered that disputes such as the present one, concerning two pieces of land situated in two different states, should in general be resolved according to the rules of one State rather than the other.

The Court added that since the present action was aimed at determining whether the influences caused by the ionising radiation exceeded generally recognised technological standards, there was no need to require an assessment of facts which is more appropriate to the place where one of the two properties concerned is situated and would hence justify conferring jurisdiction on the courts of one of the two States to the exclusion of the other.

This was different from the situation in the 'Mines de potasse d’Alsace' case of 1976
, which concerned an action for liability for damage caused to property situated in one Member State by toxic waste discharged in a river by an undertaking situated in another Member State.

In that case, the Court had held that both the place of the event giving rise to the damage and the place where the damage occurred were helpful from the point of view of the evidence.


Text of Judgment


Relevant case law:
Case 21/76 ‘Mines de potasse d’Alsace’ [1976] ECR 1735
Case 73/77 Sanders [1977] ECR 2383
Case C-115/88 Reichert and Kockler [1990] ECR I-27