Language of document : ECLI:EU:C:2006:13

OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 11 January 2006 (1)

Case C-343/04

Land Oberösterreich

v

ČEZ, as

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Interpretation of Article 16(1)(a) of the Brussels Convention – Exclusive jurisdiction for ‘proceedings which have as their object rights in rem in immovable property’ – Action for the abatement of a nuisance to an agricultural operation caused by a neighbouring nuclear plant located on the territory of a non‑Contracting State)





1.        The simple situations of ordinary life are generally regarded as giving rise to legal questions which are easily resolved. This is not the case, however, with relations between neighbours. Even though some relationships between neighbours provide illustrations of fraternity that justify the Proverb ‘better is a neighbour that is near than a brother far off’, (2) one must not forget that neighbourhood, as an illustrious jurist once remarked, principally ‘teaches negative fraternity: put up with your neighbour and do not harm him’ since a neighbour is ‘often more difficult to like or even not to hate, than our kin elsewhere’. (3) Thus, neighbour relations frequently give rise to tricky and often passionate legal disputes.

2.        In this reference made by the Oberster Gerichtshof, the Court is confronted with 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. The fact that the two properties involved are not both located in Austrian territory and that the alleged emissions emanate from a nuclear plant give the case a transnational character and a degree of complexity.

3.        The case will be analysed in the light of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (4) as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, (5) by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, (6) by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (7) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (8) (hereinafter the ‘Brussels Convention’ or the ‘Convention’).

4.        The question referred to the Court is essentially whether courts in Austria, where the land allegedly affected is located, have jurisdiction to hear such a preventive action, under Article 16(1)(a) of the Convention concerning ‘proceedings which have as their object rights in rem in immovable property’.

I –  The facts of the main proceedings, the relevant legislation and the question referred to the Court

5.        The claimant – the Austrian Land of Oberösterreich (hereinafter the ‘claimant’ or ‘Land Oberösterreich’) – owns a piece of land located in the North of Oberösterreich, which is used for agricultural purposes including trials relating to plant cultivation and is also home to an agricultural college. The defendant is a Czech power-supply undertaking, ČEZ as (hereinafter ‘ČEZ’) which operates the Temelin nuclear power plant on its property, located approximately 60 km from the claimant’s property.

6.        The Land Oberösterreich, acting in its capacity as owner of the relevant piece of land that it seeks to protect against the alleged interference, brought an action against ČEZ before the Linz Landesgericht on 31 July 2001. In essence, a judgment was sought against ČEZ ordering it to put an end to the alleged effects on the claimant’s property of the emissions of ionising radiation coming from the land on which the Temelin nuclear plant is operated, to the extent that the effects on the claimant’s property exceed those to be expected from a nuclear plant operated in accordance with current generally‑recognised technological standards.

7.        In the alternative, the claimant essentially sought an injunction ordering the defendant to put an end to the risk created by the ionising radiation emanating from its land to the extent that it exceeds the risk to be expected as a consequence of the normal operation of a nuclear plant in accordance with current generally‑recognised technological standards.

8.        The action was brought before the Linz Landesgericht on the basis of Paragraph 364(2) of the Austrian Civil Code, the Allgemeines bürgerliches Gesetzbuch (hereinafter ‘ABGB’) which provides that: ‘[t]he owner of real property is entitled to prohibit his neighbour from emitting from his land effluent, smoke, gasses, heat, odours, noise, vibration, and the like that affect his property, to the extent that such emissions exceed the usual local levels and significantly impair the use of that property in accordance with local practice. Direct dumping without a specific legal right, is unlawful in all circumstances’.

9.        According to Paragraph 354 of the ABGB ‘[o]wnership is the right to use and affect the substance of things and the benefits derived therefrom as one pleases, and to exclude all others from doing so’. Under Austrian law, a person is entitled to protect his property against interference from others through an actio negatoria which provides the claimant with a denial of the existence of other rights in rem over the property and effectively protects it against any illegitimate interference. According to the referring jurisdiction the action for abatement of a nuisance (the so called ‘Immissionsabwehrklage’) under Paragraph 364(2) of the ABGB is regarded as a type of actio negatoria or ‘Eigentumsfreiheitsklage’ designed to ensure that immovable property is left free from interference.

10.      The claimant submitted before the Linz Landesgericht that radioactive and ionising radiation are emissions that come within the scope of Paragraph 364(2) of the ABGB and that the radiation emitted from the nuclear plant during its trial operation and, in any event, the radioactive contamination of the soil which is likely to be caused by the normal operation or malfunction of the plant, exceed the usual local levels and permanently impair the normal use of the land for residential, educational and agricultural purposes. Accordingly, the requirements for bringing an action for the abatement of a nuisance before the Linz Landesgericht under Paragraph 364(2) of the ABGB were satisfied and the Linz Landesgericht had jurisdiction in the matter under Article 16(1)(a) of the Brussels Convention.

11.      Article 16(1)(a) of the Brussels Convention provides that the courts of the Contracting State in which the property is situated are to have exclusive jurisdiction, regardless of domicile, ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property’.

12.      ČEZ raised the defence of lack of domestic jurisdiction on the ground that Article 16 of the Brussels Convention does not provide a legal basis for determining jurisdiction for an action for the abatement of a nuisance such as the Immissionsabwehrklage. According to the defendant such actions pertain, instead, to the law of torts and come within the scope of Article 5(3) of the Brussels Convention. This provision provides that:

‘A person domiciled in a Contracting State may, in another Contracting State, be sued:

3) in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred; …’

13.      This constitutes a regime of special jurisdiction in relation to the general regime provided by Article 2 of the Convention under which ‘persons domiciled in a Contracting State shall, whatever their nationality, be sued in the Courts of that State.’

14.      According to the defendant, not only must Article 16 be interpreted as not conferring jurisdiction in respect of an action for the abatement of a nuisance in relation to non-Contracting States, but also, under public international law, an injunction issued by an Austrian court would constitute an unlawful interference in the territorial and judicial sovereignty of the Czech Republic and would not be enforceable there.

15.      The Linz Landesgericht dismissed the action brought by the claimant. It held that the exclusive jurisdiction conferred by Article 16(1)(a) of the Brussels Convention is to be interpreted restrictively. According to that court, proceedings having as their object rights in rem are to be interpreted, therefore, as meaning that the extent and existence of ownership and possession of property must be affected, and the rights in rem must thus be the subject-matter of the proceedings.

16.      Moreover, the Linz Landesgericht considered that it could not rule on the action without first examining whether there is an officially authorised installation within the meaning of Paragraph 364a of the ABGB. According to this provision, which constitutes an exception to the general rule in Paragraph 364(2) of the ABGB, where ‘the impairment is caused by the emission of substances from a mine or an officially authorised installation, in excess of the acceptable levels, the owner of the land is entitled only to seek, by way of court proceedings, compensation for damage, even where the damage is caused by factors not taken into account in the official authorisation process’. Such an examination of the existence of an officially authorised installation would, according to the Linz Landesgericht, constitute an immense encroachment on the sovereignty of the Czech Republic.

17.      On appeal by the claimant, the appellate court partially overturned that judgment, rejecting the defence of lack of domestic jurisdiction raised by the defendant, on the ground that actions for the abatement of a nuisance, such as the one established in Paragraph 364(2) of the ABGB, are also governed by Article 16 of the Brussels Convention.

18.      The defendant made an extraordinary appeal against this decision to the Oberster Gerichtshof which subsequently requested a ruling from the Court of Justice on the following question:

‘Is the term “proceedings which have as their object rights in rem in immovable property” in Article 16(1)(a) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (“the Brussels Convention”) to be interpreted as including a (preventive) action for an injunction, pursuant to Paragraph 364(2) of the Allgemeines bürgerliches Gesetzbuch (“the ABGB”) (the General Civil Code), prohibiting emissions from a property located in a neighbouring State – which is not a Member State of the European Union – affecting land owned by the claimant (in this case, ionising radiation emitted from a nuclear plant in the Czech Republic)?’

II –  Assessment

19.      Historically a variety of legal instruments have been developed in the various European domestic legal systems to provide solutions to the legal problems arising from neighbour relations. Consequently, when such relations have a transnational character, as in the present case where the neighbouring properties are located in two different States, the legal complexity is all the greater at the outset from the conflict of jurisdictions perspective.

20.      As a preliminary point, it will be recalled that it has been neither claimed nor proven that the claimant in this case differs in any relevant respect from any other private undertaking. The Land Oberösterreich is not acting in its capacity as an agency of the State, but exclusively as owner of a piece of land located in the North of Oberösterreich on which there is an agricultural college. The same can be said of ČEZ. The fact that the majority of the shares in ČEZ belong to the Czech State is therefore of no relevance for the purposes of the case at hand. It is clear therefore that the litigation between the parties is within the material scope of the Convention as a civil matter within the meaning of Article 1. (9)

21.      Another preliminary issue is the relationship between the application of the Brussels Convention and other conventions that govern matters of jurisdiction in relation to damages in the specific field of nuclear energy. (10) These include the Paris Convention on Third party Liability in the Field of Nuclear Energy of 1960 and the Vienna Convention on Civil Liability for Nuclear Damage of 1963 as well as the Joint Protocol relating to the Application of the Vienna Convention and the Paris Convention of 1988. Even though the Czech Republic acceded to the Vienna Convention and to the Joint Protocol, neither the Vienna nor the Paris Convention is applicable in the present case because Austria is not party to either of those conventions. (11)

22.      The last preliminary issue is the scope of application of the Convention and lies at the heart of the case. In fact the defendant in the case at hand was not domiciled in a Contracting State when the proceedings were instituted in Austria in 2001. The Czech Republic became a Member State of the European Union on 1 May 2004. (12) Article 4 of the Convention expressly provides that when the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State is to be determined by the law of that State. Article 4 also, however, excludes the cases of exclusive jurisdiction established in Article 16 from this application of the domestic provisions on international jurisdiction. (13) In this way, Article 16 plays a central role in that it grants a ground for jurisdiction under the Convention that would not otherwise be available given that the defendant is not domiciled in a Contracting State.

23.      In that regard the Court has recently held in its judgment in Owusu that ‘the rules of the Brussels Convention on exclusive jurisdiction … are also likely to be applicable to legal relationships involving only one Contracting State and one or more non-Contracting States. That is so, under Article 16 of the Brussels Convention, in the case of proceedings which have as their object rights in rem in immovable property or tenancies of immovable property between persons domiciled in a non-Contracting State and relating to an asset in a Contracting State’. (14) To the extent that Article 16(1)(a) grants to the Contracting States a common and uniform ground for exclusive jurisdiction for actions in rem, its application must logically exclude the application of derogating parallel national rules on jurisdiction for actions in rem. (15)

24.      If a Contracting State with no jurisdiction to hear an action in rem within the meaning of Article 16(1)(a) could legitimately claim to have such jurisdiction to hear an action in rem under its national law, deliver a final judgment and ultimately expect that judgment to be recognised in another Contracting State, this would lead to precisely the kind of conflicts of jurisdiction that Article 16(1)(a) is intended to resolve. The application alongside Article 16(1)(a) of parallel conflicting domestic legal provisions conferring exclusive jurisdiction for actions in rem would clearly impair the effectiveness of the Convention. (16) Moreover, it would definitely conflict with the uniform and mandatory allocation of exclusive jurisdiction among Contracting States (17) and the principle of legal certainty which is a fundamental basis of the Convention. (18)

25.      Any other interpretation would, moreover, have particularly unpredictable consequences in the present case. If the Austrian courts could deliver a judgment on the basis of parallel domestic provisions conferring international jurisdiction for actions in rem, and its enforcement or recognition were sought in the Czech Republic, a conflict regarding the recognition or enforcement of that judgment would arise. Such conflict, involving two States which are now both Member States, would fall outside the scope of the Community law regime on the free movement of judgments provided for by the Convention and more recently by Regulation 44/2001 which now binds both Austria and the Czech Republic. (19

26.      I shall first concentrate on the interpretation of the notion of ‘proceedings which have as their object rights in rem in immovable property’ in article 16(1)(a) of the Convention. Secondly, I will consider the problem of the characterisation of an action such as an Immissionsabwehrklage in the light of its substance and purpose in order to determine whether or not it falls within the scope of Article 16(1)(a). I shall finally consider the implications of the characterisation made and the relationship between the jurisdiction in rem deriving from Article 16(1)(a), and the special jurisdiction provided for by Article 5(3) of the Convention in matters relating to tort, delict and quasi-delict.

A –    The interpretation of the notion of ‘proceedings which have as their object rights in rem in immovable property’ within the meaning of Article 16

27.      The Court has already had the opportunity to interpret Article 16(1)(a) of the Convention and ascertain the scope of this regime of exclusive jurisdiction for actions concerning rights in rem in immovable property.

28.      The Court has held, first, that an autonomous interpretation of this notion must be followed. This makes it necessary to find a definition of ‘proceedings which have as their object rights in rem in immovable property’ which is ‘independent’ of any particular equivalent domestic notion in Contracting States, (20) just as it was necessary to do with regard to other grounds of exclusive jurisdiction laid down in Article 16. (21)

29.      Secondly, the Court has held that this notion ‘must not be given a wider interpretation than is required by its objective’ since the application of Article 16(1)(a) ‘results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, results in their being brought before a court which is not that of any of them’. (22)

30.      Consideration of the raison d’être of the exclusive jurisdiction regime provided by Article 16(1)(a) plays therefore a central role in the interpretation of this notion in order to determine its scope. I shall address this aspect now. Subsequently, in the light of that rationale, I shall consider the distinction between actions in rem and actions in personam which is central to the interpretation of Article 16(1)(a) and which the Court has adopted to define its scope more precisely.

1.      The teleology of the exclusive jurisdiction provided for by Article 16(1)(a)

31.      With respect to the teleology of the regime provided for by Article 16(1)(a) for actions in rem, the Court has held that ‘the courts of the locus rei sitae are the best placed, for reasons of proximity to ascertain the facts satisfactorily and to apply the rules and practices which are generally those of the State in which the property is situated’. (23) The assignment of exclusive jurisdiction under Article 16(1)(a) appears also to be justified, in the case‑law of the Court, by concerns ‘relating to the proper administration of justice’ (24) ‘because actions concerning rights in rem in immovable property often involve disputes frequently necessitating checks, inquiries and expert assessments which must be carried out on the spot’. (25)

32.      On the basis of this teleological approach the Court made the autonomous definition of ‘proceedings which have as their object rights in rem in immovable property’ more specific. Such a notion encompasses only ‘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 the protection of the powers which attach to their interest’. (26)

33.      The Commission, ČEZ and the United Kingdom Government, largely rely on such considerations of proximity and proper administration of justice to argue that the solution to the present case is relatively straightforward. To the extent that most of the inquiries and verifications in this case would have to be conducted in the Czech Republic to determine whether the Temelin nuclear plant is emitting radioactive and ionising radiation exceeding acceptable levels for modern plants, it is justifiable to consider the Immissionsabwehrklage to fall outside the definition of actions in rem in Article 16(1)(a) on a narrow interpretation of that provision. (27) I do not agree with this reasoning for two reasons.

34.       First, because considerations of proximity and proper administration of justice do not work only in favour of the jurisdiction of Czech courts. As the Land Oberösterreich and the Polish Government observed, such considerations also operate in favour of the jurisdiction of Austrian courts which are closer to the estate affected and thus are better able to analyse the possible impact of the emissions on it.

35.      Secondly, I am not convinced that the regime of exclusive jurisdiction for actions in rem conferred by Article 16(1)(a) can be explained solely by policy considerations relating to the proper administration of justice and, ultimately, to the proximity of the courts of the State where the immovable property is located.

36.      Such considerations certainly justify regarding the forum rei sitae as having the closest connection with the facts of the case – although it is not always easy to determine where that is when two properties are involved as in the present case – and therefore, granting jurisdiction to that forum in the first place. The problem with this teleological analysis is that it does not suffice to explain the exclusive character of that jurisdiction. In other words, why should the courts of the State in which the property is situated have jurisdiction to the exclusion of all others under the Convention to determine the ownership, possession and possible existence of limited rights over immovable property and the protection of the powers attached to such interests? (28

37.      The argument that inquiries, checks and examinations can necessarily only be carried out at the locus rei sitae, does not actually provide an answer to this question. There are real possibilities of cooperation between courts to establish the facts material to the case in the place where the immovable property is situated. (29) These arguments of proximity to the facts and proper administration of justice are based on practical considerations of simplicity or opportunity. Such considerations suffice to explain a regime of special jurisdiction (30) but not the exclusive jurisdiction for actions in rem which prevents the courts of every other State from hearing such actions, even if the defendant has his domicile there.

38.      The analysis of the reasons explaining the exclusivity of the jurisdiction in rem is not a purely academic matter. On the contrary, it is crucial, as the Court has recognised, to determine the precise meaning and scope of the notion of proceedings related to rights in rem in immovable property and, ultimately to determine whether an action such as the Immissionsabwehrklage falls within the scope of that notion. In my view, what the Court should avoid in this regard is establishing the scope of the exclusive jurisdiction for actions in rem conferred by Article 16(1)(a), on the basis of reasons that do not suffice to justify the exclusive character of that jurisdiction.

39.      The justification for granting exclusive jurisdiction is to be found not only in practical considerations of proximity to the facts of the case, simplicity and opportunity for a proper administration of justice. It is also closely linked to a normative legal principle: the traditional sovereignty of each Contracting State to control, adjudicate and protect real rights of private individuals upon immovable property located in its territory. (31) The area of property law relating to immovable property is a typical area where for mandatory political and economic reasons the State where the property is located retains a legislative authority that naturally extends to an exclusive jurisdiction for actions in rem. (32) It is on the basis of this principle that each Contracting State retains a jurisdictional monopoly for actions in rem provided by Article 16(1)(a). (33)

40.      In my view it would also be unsatisfactory to argue, as some authors do, that this jurisdictional monopoly conferred by the Convention is justified by the sole fact that judgments in actions in rem will necessarily have to be enforced in the State where they are delivered. Such ‘practical necessities’ (34) are certainly pertinent, but they are just one aspect among many of the complex raison d’être for the exclusive jurisdiction provided for by Article 16(1)(a).

41.      The Court has, moreover, in the parallel context of tenancies of immovable property – also subject to the exclusive jurisdiction regime under Article 16(1)(a) – asserted the exclusive jurisdiction of the courts of the place where the immovable property was located, even though, a priori, the judgment would have to be enforced in a different jurisdiction. This is precisely the position with those actions for damages (35) which the Court has included within the exclusive jurisdiction of Article 16(1)(a). This is so even where the defendant has his domicile outside the territory of the Contracting State in which the property is situated and the judgment has to be executed in a State other than the State where the immovable property is located. (36)

42.      In my view, therefore, to the extent that each State normally has the exclusive power to control the organisation, structure and scope of rights in rem and their protection, it will logically have the exclusive jurisdiction to rule on such rights and establish the limits and restrictions imposed thereby, with regard to immovable assets situated in its territory.

43.      It is in this sense that one must understand the central interpretive statement of the Court regarding the autonomous notion of actions in rem under Article 16(1)(a), according to which ‘the courts of the Contracting State in which the property is situated’ have exclusive jurisdiction only for 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 the protectionof the powers which attach to their interest’. (37)

2.      The distinction between actions in rem and actions in personam

44.      The autonomous notion of ‘proceedings which have as their object rights in rem’ was not created in a legal vacuum. It corresponds to the classic legal distinction between actions in rem – that is to say, those referred to in Article 16(1)(a) as ‘proceedings which have as their object rights in rem’ – and actions in personam which concern proceedings that have as their object rights in personam. This distinction, well known in most Contracting States, although less familiar to common law lawyers, (38) is central to the Convention, in particular to Article 16(1)(a) and has been expressly adopted by the Court. (39) It is very helpful to define in greater detail the practical scope of the jurisdictional monopoly conferred by Article 16(1)(a) in the light of the raison d’être of this regime of exclusive jurisdiction just described.

45.      This distinction is based on the type of right that essentially gives rise to the action. In ‘an action in rem within the meaning of Article 16(1)’ the plaintiff claims that ‘he enjoys rights directly relating to the property which are enforceable against the whole world’. (40) The immediate object of these actions is the right in rem as a power over a thing (res) to the exclusion of all unauthorised interference with that thing. On the other hand, with an action in personam the plaintiff ‘seeks only to assert rights’ against specific persons. (41) Such rights may have different sources (contract, tort, quasi-contract, etc.) but in any case the right will relate directly to the specific person or persons indicated by its source. (42)

46.      As often happens in law, this distinction is easier to state than to put into practice. In the case for example of the comparison between an action in personam resulting from a tort and an action in rem the distinction is relatively straightforward. At the core of an action arising from tortious liability there is an obligation to compensate for damage and/or to put an end to the damage caused by the behaviour of the tortfeasor. Tortious liability is the source that gives rise to that obligation, which, as with every obligation, necessarily applies between specific persons, namely the tortfeasor and the victim. Thus the action of the victim to obtain the fulfilment of that obligation to pay compensation or to stop the harm is necessarily directed against a specific person, the debtor, and it is therefore, an action in personam. The action will, therefore, still be in personam where, as in Henkel, (43) it is a preventive action brought for the purpose of preventing the imminent commission of a tort (or delict) and the consequent occurrence of damage to the victim.

47.      In contrast, at the core of an action in rem, in the place of an obligation involving a specific debtor there is a right in rem as a direct power over the res that can be raised erga omnes. If one can say that such right entails an obligation, it is merely an obligation on the whole world not to interfere with it without the consent of the owner. In the right in rem the power of the owner over the thing is central. In the right in personam, on the contrary, it is the legal obligation that binds specific persons. (44)

48.      In an action in rem relating to immovable property the plaintiff therefore invokes the right in rem to establish its extent, content, possible charges, servitudes or other restrictions that may limit it and to protect the estate against any interference incompatible with the prerogatives inherent to his right. In an action in personam, on the contrary, he invokes the obligation that binds him to the defendant arising from a specific source, e.g. tortious liability. It is from that particular relationship that the legal claim for damages derives, and not directly from the right in rem itself. As the Court has consistently held, it is not sufficient for Article 16(1)(a) to apply ‘that a right in rem in immovable property be involved in the action or that the action have a link with immovable property: the action must be based on a right in rem and not on a right in personam …’. (45)

49.      The two actions are completely different despite the fact that in both actions there might be a right in rem that both actions seek – although in different ways – to protect. The case of Bier v Mines de Potasse d’Alsace (46) is illuminating on the way in which an action in personam arising from the law of torts serves to protect a right of ownership. According to Bier, Mines de Potasse caused massive discharges of residuary salts into the Rhine, in France, which affected Bier’s immovable property situated in the Netherlands. Bier sought a declaration by the court that such discharge by Mines de Potasse was unlawful and an order that the said company make good the damage caused to its property. That action was undoubtedly an action in personam. It sought to obtain the fulfilment of an obligation towards Bier which was binding on Mines de Potasse, and the specific source of which was liability in tort. (47) On the other hand, an action in rem – which was not the issue in the Mines de Potasse case – would directly concern the delimitation of rights over things (i.e. an estate) and the prevention of interference which was not justified by any existing right or prerogative over them.

50.      All this may appear, at first sight, only a matter of semantics in the sense that these actions, whether deriving from the law of torts or from property law, seem to be different means of achieving the same common end, that is, ultimately, protecting ownership. This impression is borne out by the fact that such protection can be provided through injunction proceedings. It appears to be merely a question of choosing between an injunction formally arising from property law or one deriving from the law of torts.

51.      There are, however, profound and substantial differences between actions in rem and actions in personam to protect immovable property against interference. They are the product of the long-standing divergent legal traditions developed and consolidated in the law of torts and of property in the different Contracting States.

52.      Putting an end to interference with property is possible in the private law of most European legal systems, not only through actions in personam, but also through actions in rem within the meaning of the Convention. It is well known, in this regard, that in most legal systems in continental Europe the protection of property rights can be achieved through actions that have the res and the right over it as their immediate object. In my view, it is precisely this that the Court affirms when it expressly includes within Article 16(1)(a) actions that ‘provide the holders of those rights with the protection of the powers which attach to their interest’. (48) This is the case, for instance, with the actio negatoria, which is well known namely in Germany, (49) Italy (50) and also in Austria according to the order for reference, by which the owner of the land asserts its freedom from foreign interference that would otherwise amount to a servitude, charge or limitation to his right of ownership. Applied to the specific context of rights in rem over neighbouring estates such actions in rem will permit the determination of whether the right of ownership over the estate at the origin of the interference extends far enough to justify that interference and the ensuing limitation of the right of ownership over the affected estate.

53.      Other European legal systems are simply unfamiliar with actions such as the actio negatoria. They are able, however, to arrive at equivalent final results in terms of protection of immovable property through legal institutions that place emphasis instead on the conduct of the person responsible for the interference. That is the case for instance with the Common Law ‘tort of nuisance’. (51) Different legal systems have historically developed, each in its specific social and cultural context, equivalent but different legal instruments to protect property from external interference, some focusing on the thing itself and the right over it, others on relations between specific persons involving human behaviour which causes the interference. (52

54.      One must not assume, therefore, that once there is an action to prevent an interference with property from occurring or to put an end to it that action must necessarily be deemed to fall within the notion of matters relating to tort in Article 5(3) of the Brussels Convention. This is basically the position adopted by ČEZ, the United Kingdom and the Commission in the present case, with which I cannot agree.

55.      Such a position may appear in some way intuitive to most lawyers less familiar with property law in most legal systems throughout Europe. (53) It may even be true that, unlike the law of torts, property law is overburdened with legal definitions regarded by many lawyers as archaic to deal with the problems of protection of property against nuisance originating from a neighbouring estate. Perhaps it is the traditional conception of ‘ownership’ itself, as the legal relationship of domination between a person and a thing that has increasingly become an outmoded concept replaced by more inter-personal legal concepts. (54)

56.      The reality, however, is that such ‘archaic’ legal notions from the law of property and the actions arising thereunder to put an end to interference in immovable property that is not justified by any prior right over it exist and are very well established in legal systems throughout Europe. One cannot ignore this substantive legal reality and simply conclude that all actions purporting to protect immovable property against interference must be characterised as actions in personam in matters relating to tort, delict and quasi-delict under the Convention.

57.      The rules on conflict of jurisdictions in the Brussels Convention are not aimed at harmonizing the substantive legal regimes of the Contracting States on how to protect property rights. Instead, they ‘merely’ aim at providing a uniform allocation of jurisdiction among the Contracting States. To that end, Article 5(3) grants jurisdiction for actions in personam for damages and/or to prevent the imminent occurrence of damage. (55) Article 16(1)(a), on the other hand, grants jurisdiction for a different type of action which, in the light of the purpose described above, may include actions to ascertain the existence of limitations imposed on ownership (such as servitudes, charges or statutory restrictions on ownership that ultimately may benefit another neighbouring estate) and to put an end to any incompatible interference with the immovable property.

58.      The Convention, in light of its purpose of allocating jurisdiction, has to respect the institutional choices, even if imperfect, made by legal systems, at the domestic level, on how to regulate in substance the protection of immovable property. Bringing all remedies arising from property law and actions for damages under the umbrella of matters relating to tort under Article 5(3) of the Convention would constitute an interference with such choices. Moreover, such an approach would mean that owners of immovable property situated in one Contracting State would only be able to seek protection for such immovable property in that State, through actions arising from property law, against interferences originating in a different State, if the defendant had its domicile in one Contracting State as provided by Articles 2, 4 and 5(3) of the Convention.

59.      I do not think that the Court ought to interfere in such a way with well‑established legal traditions. The question whether one must protect immovable property against interference originating in a neighbouring estate through the establishment of statutory restrictions on the right of ownership, or instead through the law of torts, is decided differently in different legal systems. To the extent that the purpose of the Convention is simply to allocate jurisdiction between the different Contracting States, while respecting their different substantive regimes of property and tort concerning the protection of immovable property, the interpretation of the procedural rules of the Convention and the characterisation of the particular proceedings under analysis, must fully respect that diversity.

B –    The characterisation of an action such as the Immissionsabwehrklage

60.      It is beyond doubt that the notion of ‘proceedings relating to rights in rem over immovable property’ must be autonomously interpreted. While such interpretation must respect the national differences in the choice of legal regimes to protect immovable property, it must remain an autonomous Community interpretation. In other words, that interpretation cannot be based on the meaning attributed to such a notion in any particular Contracting State. It is therefore necessary to determine if the characterisation made at the national level of the specific action at hand does correspond to the autonomous notion of an action in rem as defined above. Moreover, as the Court has emphasised, this autonomous notion must not be given an interpretation broader than is required by the reasons for granting the exclusive jurisdiction to the forum rei sitae. (56)

61.      The question that one must address now is whether or not an action such as the Immissionsabwehrklage falls within that autonomous notion of actions in rem under Article 16(1)(a). This is a typical exercise in characterising a particular type of action, in the present case the Immissionsabwehrklage. The difficulty of such a characterisation, as is frequently the case in private international law, is that it is a characterisation, not of facts, but of an action arising from particular national statutory provisions.

62.      In this regard, as I have just stated, it is beyond doubt that it will be irrelevant in itself that in Austria, according to the order for reference, the Immissionsabwehrklage is characterised under domestic law as an action in rem.

63.      The characterisation required calls, rather, for an objective examination of the content and purpose of the Immissionsabwehrklage to establish its nature. Such analysis must be made through an objective consideration of the Immissionsabwehrklage against the background of the legal system to which it belongs. Ascertaining the substance and objective of the Immissionsabwehrklage will make it possible to establish whether or not it corresponds to the autonomous notion of action in rem under Article 16(1)(a) of the Convention in the light of the meaning and purpose described above. (57)

64.      In my view it is ultimately for the referring court to make such an analysis of the Immissionsabwehrklage as part of its national law. In any event, the analysis of the exact content and purpose of the Immissionsabwehrklage necessary to determine whether or not it amounts to an action in rem within the meaning of Article 16(1)(a) must seek an answer to what is the most central issue for this particular characterisation, that is, whether this action directly seeks to establish limits on ownership arising from relations between neighbouring estates.

65.      I would observe in that regard that most national systems are familiar with legal provisions that impose a priori statutory restrictions on the right of ownership over an estate with respect to emissions originating from neighbouring estates. (58)

66.      Such provisions are directly concerned with the legal delimitation of the ambit of the powers inherent in the rights of ownership over each of the neighbouring estates. Therefore, when a court hears an action brought under such provisions seeking prevention of an emission it may rightfully be regarded as directly imposing restrictions on the right of ownership, either by limiting the exercise of the right of ownership over the estate where the emission originates, or by limiting the right over the estate affected by the interference if it holds that this land should put up with the emission. (59)

67.      Moreover, any limit which a court may impose on the affected estate by holding that it must put up with emissions from the neighbouring estate will constitute a benefit conferred on one estate allowing it to cause a certain level of nuisance in another. That charge falls short of constituting an easement. In any case it will amount to a limit on the right of ownership of one estate that ultimately favours the other and such limitation will continue irrespective of the persons who actually are in possession of the neighbouring estates. (60)

68.      If this is true of an action such as the Immissionsabwehrklage under Paragraph 364(2) of the ABGB then it can hardly be said that rights in rem over immovable property are not the direct object of those proceedings. The Immissionsabwehrklage should in that case be characterised by the referring court as an action in rem falling within the scope of Article 16(1)(a).

69.      In the light of these considerations I therefore take the view that an action which directly seeks to determine the statutory restrictions on the right of ownership resulting from neighbour relations between estates and to put an end to an interference in immovable property which is deemed incompatible with such restrictions, should be regarded as falling within the notion of ‘proceedings which have as their object rights in rem in immovable property’ under Article 16(1)(a) of the Brussels Convention. It is for the national court to determine whether that is the case with the Immissionsabwehrklage under Paragraph 364(2) of the ABGB

70.      A different but related issue is the possible application of Paragraph 364a of the ABGB according to which where ‘the impairment is caused by the emission of substances from … an officially authorised installation, in excess of the acceptable levels the owner of the land is entitled only to seek, by way of court proceedings, compensation for damage’.

71.      In that regard, it must be emphasised, first, that Austrian courts will have no jurisdiction, according to Article 1 of the Convention to address any administrative matter involved in the case. The question therefore of the existence, content and legal effects of an official authorisation for the operation of the nuclear plant will be a matter for the competent Czech public authority ‘acting in the exercise of its public authority powers’. (61)

72.      Secondly, once such an answer is provided by the competent authorities, the public authorisation may be regarded in Austrian courts as a fact to be taken into account for the purposes of the application of Paragraph 364a of the ABGB. This may have the result that, even where the Immissionsabwehrklage under Paragraph 364(2) would be regarded as falling within the scope of Article 16(1)(a) of the Convention, the conditions required by Austrian law for its application may not be met. Naturally, if Austrian courts are currently seised of such an action for damages under Paragraph 364a of the ABGB, they may have jurisdiction to hear it under Article 5(3) of Regulation 44/2001, which is now applicable both in Austria and the Czech Republic, but not under Article 16(1)(a) of the Convention.

C –    The implications of a possible characterisation of the Immissionsabwehrklage as falling within the exclusive jurisdiction provided by Article 16(1)(a)

73.      If the two immovable properties in the case at hand were both located in Austria there would be no particular problems arising from a possible characterisation of the Immissionsabwehrklage as an action falling within the scope of the exclusive jurisdiction of Austrian courts under Article 16(1)(a). (62

74.      In the present case, however, to the extent that it involves immovable property in two different States, there are more delicate implications of the characterisation of the Immissionsabwehrklage as an action in rem within the meaning of Article 16(1)(a). While the Austrian courts can claim exclusive jurisdiction under Article 16(1)(a) to hear actions seeking to delimit and to protect rights in rem over property within its territory, it is no less true that the courts of the Czech Republic can also legitimately claim under its domestic law equivalent exclusive jurisdiction with regard to the immovable property allegedly at the origin of the emissions.

75.      In my view, provided that in the case at hand the Immissionsabwehrklage is characterised as an action in rem within the meaning of Article 16(1)(a), then the Austrian courts will have exclusive jurisdiction to hear that action regardless of the fact that the Czech courts may legitimately claim exclusive jurisdiction as well.

76.      This brings us, therefore, into the domain of concurrent exclusive jurisdictions. This awkward situation appears at first sight to entail a logical absurdity. Such an absurdity is not, however, real in every case.

77.      One must recall, in this regard, that this situation where different courts may legitimately claim exclusive jurisdiction for actions in rem over the same cause of action or legal problem is recognised and regulated by Article 23 of the Convention. That provision determines that ‘where actions come within the exclusive jurisdiction of several courts, any court other than the first seised shall decline jurisdiction in favour of that court’.

78.      The applicability of this provision is a priori rare by virtue of the intrinsic logic of a jurisdictional monopoly of the State where immovable property is located to hear actions in rem and to apply its property law regime. Such applicability of Article 23 may arise, however, either where it is impossible in legal terms to separate one estate from neighbouring estates owing to the particular substantive legal problem under analysis, or where one piece of property straddles two different States and is indivisible. (63)

79.      In Scherrens the issue of the applicability of Article 23 was obliquely addressed by the Court. (64) In this case Mr Scherrens claimed to be the tenant, under a single lease, of farming land situated in the Netherlands (some twelve hectares) and seven kilometres away in Belgium (five hectares). This claim was disputed by the lessors. Mr Scherrens brought separate proceedings in the Netherlands and in Belgium regarding the separate pieces of land and the Court was asked whether the courts of each State had exclusive jurisdiction over the land situated in that State. It ruled that ‘Article 16(1) of the Convention must be interpreted as meaning that, in a dispute as to the existence of a lease relating to immovable property situated in two Contracting States, exclusive jurisdiction over the immovable property situated in each Contracting State is held by the courts of that State’. (65)

80.      This solution avoided in practice the recognition of the existence of concurrent exclusive jurisdictions of the courts of both States to give judgment in respect of all the land. Consequently, the application of Article 23, argued for by the Commission in Scherrens was set aside. This approach by the Court is understandable in the light of the fact that the pieces of land situated in the different States, as Advocate General Mancini remarked, ‘were divisible into separate parts for legal purposes and thus capable of falling under the jurisdiction of different national courts’. (66)

81.      Where, however, the two immovable properties are indivisible for legal purposes, the existence of concurrent exclusive jurisdictions is not only obvious, despite its exceptional character, but moreover, it demands a simple solution, such as that provided by Article 23. In this connection we need only consider the classic situation where there is a debate about the existence or scope of an easement between two neighbouring immovable properties, located in two different States. The owner of the dominant estate claims that his land benefits from a right of way (for example to permit access to a public road) over the neighbouring estate. The owner of that neighbouring estate opposes that claim to a right over his property.

82.      An action to determine the existence or scope of such an easement has to be classified as an action in rem within the meaning of Article 16(1)(a) of the Convention and not an action in personam. A court hearing that action will be directly ruling on rights in rem as powers over things. The owners of both estates may change but the easement will continue for the duration of the situation that gives rise to it. Moreover, to the extent that the establishment of such an easement entails that the right of ownership over the servient estate will be limited by the easement, whereas the ownership of the dominant estate will benefit from the easement, this will be a case where the two immovable properties are clearly indivisible for legal purposes. It will be impossible in legal terms to analyse the rights in rem over one property without considering the right in rem over the other. This in my view would bring such a case within the scope of Article 23 of the Convention.

83.      In the case at hand we are not dealing exactly with easements. But to the extent that the action at hand possibly seeks to establish limits upon one right of ownership that cannot be understood without a demarcation of the scope of the right of ownership of a neighbouring estate then one must recognise that the two estates involved are actually indivisible for legal purposes.

84.      The convenience of interpreting narrowly the notion of action in rem under Article 16(1)(a) in order to avoid situations of concurrent exclusive jurisdictions subject to Article 23 and the resulting choice of forum for the plaintiff, is certainly a consideration. However, I do not believe that an interpretation of the notion of actions in rem under Article 16(1)(a) and the objective characterisation of a particular form of action as falling within its scope, can be allowed to depend upon a subsequent discovery that a situation of concurrent exclusive jurisdictions would arise. Particularly when one considers that it is Article 23 of the Convention itself that expressly provides for and regulates such situations of concurrent exclusive jurisdictions.

85.      With regard to the problem of forum shopping, there is nothing inherently wrong with the possibility of choice of forum in a case involving estates which are indivisible for legal purposes. (67) Such a choice of forum is merely a consequence of the fact that only one court can be allowed to deliver a judgment on that subject‑matter, and the simplest criterion for deciding which court retains that jurisdiction is, according to Article 23, the criterion of the first court seised.

86.      I also believe that the solution proposed is the one that fits in better with the regime provided for by Article 5(3) as interpreted by the Court since the Bier Mines de Potasse d’Alsace judgment. (68) According to this regime there is a concurrent special jurisdiction to hear actions relating to tort of both the courts of the place where the harmful conduct took place and where the harmful effect occurred. As a result, the defendant may be sued, at the option of the plaintiff, in the courts of either of those places.

87.      I would like to conclude with some final remarks regarding the conditions under which national courts should exercise the jurisdiction conferred on them by the Convention in cases such as the present one.

88.      A regime according to which the owner of the immovable property is granted the right to be left free from the interference and is entitled to an injunction to put an end to it amounts to the adoption of a property rule. In contrast, an action for damages invokes a typical liability rule according to which the owner has to put up with the emission but can claim compensation under the regime of civil liability. (69) Both liability and property rules purport to solve disputes relating to nuisance and are different ways of protecting the right of ownership over the land affected by the emissions. In effect, when dealing with a question of nuisance what the decision-maker or judge ultimately has to do is, essentially, to choose between a property rule and a liability rule.

89.               It must be recalled, however, that in the context of the Convention we are not choosing between legal solutions to the substantive problem but between competing jurisdictions. Even if the adoption of a liability rule may be the best solution for the problem of cross-border radioactive emissions, as a transaction costs analysis suggests, (70) the Court is not entitled to give preference to such a solution when it is called upon to interpret the rules of the Convention on conflicts of jurisdiction. The Convention is not aimed at creating uniformity among substantive legal systems of the Contracting States with regard to the protection of immovable property by bringing all remedies in tort and property law within the notion of tort matters under Article 5(3) of the Convention. It is based rather on a desire for coordination and cooperation among different jurisdictions.

90.      Thus, the best way to handle problems of international jurisdiction under the Convention in cases such as the one at hand when they arise between Contracting States is precisely to link the jurisdiction for matters relating to tort with the jurisdiction for actions in rem. When the two neighbouring estates are located in different Contracting States both courts should, in my view, be able to claim exclusive jurisdiction for the analysis of the statutory restrictions on ownership over immovable property located in their respective territories. Likewise, they will both be considered competent to analyse the case in terms of torts, where the damage occurs in one State and the conduct causing that damage takes place in another State.

91.      If both courts eventually consent to hear such different actions arising from the law of torts and from the law of property a risk that conflicting judgments are delivered will arise. The provisions on lis pendens and related actions provided by the Convention in Articles 21 and 22 will then come into play to prevent that risk from materialising. (71)

92.       Granting each one of those courts the jurisdiction to decide either about the limits of ownership and/or any tortious liability, with regard to nuisance involving immovable property located in two different States raises, in any case, a problem of cost externalisation from one State to another. In fact, if for example, the court that ultimately retains jurisdiction to decide the whole subject‑matter, as the first seised, is the court where the property affected is situated, it may decide without taking into account the costs and benefits of the pollution in the State where the pollution originates, but only the costs caused by the emissions in its own State. This risk of cost externalisation is real. The answer to this problem must however be found at the level of the specific judicial decisions made by the national courts that are first seised of such actions.

93.      In this regard, the spirit of coordination and cooperation which imbues the Convention points to the importance of trust in the transnational role played by national courts. This is particularly important in the precise context of cases of transnational nuisance involving immovable properties located in different States. In such cases the judgment to be delivered must pay special attention to the transnational character of the situation. This means that national courts with jurisdiction to deal with transnational situations under the rules of the Convention have specific obligations arising from the transnational nature of the case, namely in order to avoid the risk of cost externalisation mentioned above.

94.      Such obligations derive, first of all, from the existence of limits on the recognition of decisions that do not respect the public policy of the legal systems involved on which recognition may be sought. (72) To the extent that a judgment deals with a transnational situation, such as one of cross-border nuisance, the decision will not be free of effects in other States and it is in this respect that the issue of recognition of the judgment abroad may arise. The courts of the Contracting State with jurisdiction to hear the case must therefore respect the obligations arising from the consideration of what could be a judgment inconsistent with foreign public policy provisions. (73)

95.      In the context of cases of transnational nuisance, these obligations must be taken into account first of all in the choice of the most appropriate legal remedy. If the national legal system allows the protection of property either through a property rule or a liability rule, the transnational dimension of the case and the possible difficulty of making a full cost-benefit analysis may be relevant to such a choice. Secondly, the same concern for the consideration of the transnational character of the situation may be relevant in seeking a balance of all relevant elements with respect to the assessment of the amount of damage or the assessment of the risk that such damage may occur.

III –  Conclusion

96.      I am therefore of the opinion that the Court should give the following answer to the question referred to it by the Oberster Gerichtshof:

An action which directly seeks to determine the statutory restrictions on the right of ownership resulting from neighbour relations between estates and to put an end to interference in immovable property which is deemed incompatible with such restrictions, should be regarded as falling within the notion of ‘proceedings which have as their object rights in rem in immovable property’ under 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 by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden . It is for the national court to determine whether that is the case with the Immissionsabwehrklage under Paragraph 364(2) of the Allgemeines Bürgerliches Gesetzbuch.


1 – Original language: Portuguese.


2 – Solomon, Book of Proverbs, XXVII, 10.


3 – Carbonnier, J., Droit Civil, Tome 3, Les Biens, 19e édition refondue, 2000, PUF, Paris, p. 276.


4 – OJ 1972 L 299, p. 32.


5 – OJ 1978 L 304, p. 1 and amended version p. 77.


6 – OJ 1982 L 388, p. 1.


7 – OJ 1989 L 285, p. 1.


8 – OJ 1997 C 15, p. 1.


9 – According to this provision the regime of the Convention is not to extend to administrative matters.


10 – Article 57 of the Brussels Convention provides that it ‘shall not affect’ any such conventions relating to particular matters also covered by the Convention.


11 – Article 2 of the Paris Convention lays down the basic rule that it ‘does not apply to nuclear incidents occurring in the territory of non-Contracting States or to damage suffered in such territory …’. Under Article XI of the Vienna Convention ‘… jurisdiction over actions under Article II shall lie only with the courts of the Contracting Party within whose territory the nuclear incident occurred …’.


12 – At that time it became bound by Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


13 – See Jenard Report, OJ 1979 C 59, p. 21, stating that ‘[t]he only exception to the application of the rules of jurisdiction of internal law is the field of exclusive jurisdiction (Article 16)’.


14 – Case C-281/02 Owusu [2005] ECR I-1383, paragraph 28.


15 – See, to that effect, Owusu, paragraph 43, which emphasises the ‘uniform application of the rules on jurisdiction’ where the ‘objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules’.


16 – The Court adopted this ‘non-impairment’ test in Case C-365/88 Kongress agentur Haagen [1990] ECR I-1845, paragraph 20.


17 – See, as regards the compulsory system of jurisdiction set up by the Convention, Case C-116/02 Gasser [2003] ECR I-14693, paragraph 72, Case C-159/02 Turner [2004] ECR I-3565, paragraph 24, and Owusu, paragraph 37


18 – See Owusu, paragraphs 38 to 41.


19 – See Article 66(2)(b) of Regulation 44/2001, on the transitional regime for judgments delivered after the regulation came into force. It seems that this provision renders inapplicable the provisions of Title III on the recognition and enforcement of judgments where the jurisdiction of the Austrian courts was not ‘founded upon rules which accorded with those provided for in Chapter II’. However, if a judgment is delivered by Austrian courts on the basis of Article 16(1)(a) of the Convention, which accords with Article 22(1) of Regulation 44/2001, then the judgment will fall within the scope of this regulation’s provisions on the recognition and enforcement of judgments.


20 – See Case C-115/88 Reichert and Kockler [1990] ECR I-27, paragraph 8, and order of the Court in Case C-518/99 Gaillard [2001] ECR I-2771, paragraph 13.


21 – See, as regards the concept of ‘tenancies of immovable property’ Case 73/77 Sanders v Van Der Putte [1977] ECR 2383 and, as regards the concept of ‘proceedings concerned with the registration or validity of patents’ in Article 16(4) Case 288/82 Duijnstee v Goderbauer [1983] ECR 3663.


22 – Reichert and Kockler, paragraph 9, and Case C-292/93 Lieber [1994] ECR I-2535, paragraph 12.


23 – Reichert, paragraph 10, and case-law cited therein.


24 – Case C-294/92 Webb [1994] ECR I-1717, paragraph 16, and Sanders, paragraph 13.


25 – Webb, paragraph 17.


26 – Reichert and Kockler, paragraph 11 and Gaillard, paragraph 15.


27 – The answer to the jurisdictional problem in the present case would therefore be left solely to the Austrian domestic rules on civil jurisdiction, according to Article 4 of the Convention, along the lines described above at points 22 to 24.


28 – See, for instance, in academic writing, J.-M. Bischof, ‘Chronique de jurisprudence de la Cour de Justice des Communautés européennes’ in Journal du droit international, 1978, p. 392 pointing out that the courts with exclusive jurisdiction under Article 16(1)(a) are not ‘les “mieux placées”, mais les “seuls bien placées”’.


29 – See also Lieber, paragraph 21, calling the attention to the possibility ‘for a court in another Member State to consult a local expert in order to obtain the necessary information’.


30 – For example the Court in Henkel, paragraph 46 and case-law cited therein, explains the special jurisdiction regime in Article 5(3) of the Brussels Convention, precisely on those same grounds of proximity, sound administration of justice and efficacious conduct of proceedings.


31 – See to that effect E. Pataut, Principe de souveraineté et conflits de juridictions (étude de droit international privé), Paris, LGDJ, 1999, p. 251.


32 – See expressly on Article 16(1)(a) P. Gothot and D. Holleaux, ‘La Convention entre les États membres de la Communauté économique européenne sur la compétence judiciaire et l’exécution des décisions en matière civile et commerciale’ in Journal du droit international, 1971, p. 767, affirming that such exclusivity with the consequences attached to it by the Convention ‘tient à des considérations de souveraineté et de coïncidence entre les compétences judiciaire et législative’. See also P. Lagarde, ‘Le principe de proximité dans le droit international privé contemporain’ in Recueil des Cours de l’Académie de Droit international, Vol. 196(I), 1986, p. 51 pointing out that ‘[l]e principe de souveraineté commande l’application de la loi du for à certains rapports de droit … et il accompagne souvent cette revendication de compétence législative d’une revendication correspondante de compétence juridictionnelle exclusive (for de la nationalité, for de la situation de l’immeuble)’.


33 – This can be seen not only in the Jenard Report, p. 35, according to which the regime of exclusive jurisdiction for actions in rem, was established on the Convention due, firstly, to public policy considerations, but also in some judgments of the Court concerning Article 16(1)(a). In Case 241/83 Rösler [1985] ECR 99, paragraph 19, in the context of tenancy agreements, the Court held that ‘the raison d’être of the exclusive jurisdiction conferred by Article 16(1) … is the fact that tenancies are closely bound up with the law of immovable property and with the provisions, generally of a mandatory character, governing its use’. Subsequently, in Lieber, paragraph 20, the Court held that it is ‘the interest of the State in which the property is situated in ensuring that those provisions are complied with which justify the exclusive jurisdiction conferred on that State’ by Article 16(1)(a).


34 – As Advocate General Mancini described them in his opinion in Case C-158/87 Scherrens v Maenhout and Others [1988] ECR 3791, point 2 at p. 3799.


35 – As in Rösler, paragraph 29.


36 – See Case C-8/98 Dansomer [2000] ECR I-393, paragraph 38 where the Court held that ‘the rule laid down in Article 16(1)(a) of the Convention … is applicable to an action for damages for taking poor care of premises and causing damage to accommodation which a private individual had rented for a few weeks’ holiday …’. The Court however considered that the Danish courts where the property was located had exclusive jurisdiction under Article 16(1)(a), regardless of the fact that the judgment on damages would almost certainly have to be enforced in Germany where the tenant had his domicile.


37 – Reichert, paragraph 11, and Gaillard, paragraph 15 (the emphasis is mine).


38 – See L. Collins, The Civil Jurisdiction and Judgments Act 1982, London, Butterworths, 1983, pp. 78-79, pointing out that ‘the expression “proceedings which have as their object rights in rem in or tenancies of, immovable property” does not fit with any existing concepts of property law in the United Kingdom’. See, in any case, on the notion of actio in rem under English Maritime Law, the opinion of advocate general Tesauro in Case C-406/92 Tatry [1994] ECR I‑5439, point 19.


39 – Webb, paragraph 15, and Gaillard, paragraphs 19 to 21.


40 – Webb, paragraph 15. See also Gaillard, paragraphs 18 and 19.


41 – Webb, paragraph 15.


42 – See Gaillard, paragraph 18.


43 – Case C-167/00 [2002] ECR I-8111, paragraphs 46 and 47.


44 – See Schlosser Report, OJ 1979 C 59, paragraph 166, at p. 120. For a parallel philosophical distinction see, for instance, J. Bentham, An introduction to the principles of morals and legislation, eds J.H. Burns and H.L.A. Hart, Oxford, Clarendon Press, 1996, pp. 192-193, stating that ‘in as far as a man is in a way to derive either happiness or security from any object which belongs to the class of things, such thing is said to be his property …: an offence, therefore, which tends to lessen the facility he might otherwise have of deriving happiness or security from an object which belongs to the class of things may be styled an offence against his property’. On the contrary ‘an offence, … the tendency of which is to lessen the facility you might otherwise have of deriving happiness from … a person … specially connected with you, may be styled an offence against your condition in life, or simply against your condition’.


45 – Webb, paragraph 14, Lieber, paragraph 13, and Gaillard, paragraph 16.


46 – 21/76 [1976] ECR 1735.


47 – Certainly, as the Schlosser Report, paragraph 163 at p. 120, stated, ‘actions for damages based on infringements of rights in rem or in damage to property in which rights in rem exist do not fall within the scope of Article 16(1)’ (the emphasis is mine).


48 – Reichert, paragraph 11, and Gaillard, paragraph 15 (my emphasis). The Schlosser Report, paragraph 166, at p. 120-121 notes in this regard that ‘the most important legal consequence flowing from the nature of a right in rem is that its owner is entitled to demand that the thing in which it exists is given up by anyone not enjoying a prior right’.


49 – See Paragraph 1004 of the Bürgerliches Gesetzbuch (German Civil Code) on claims for removal and for injunction, stating that ‘(1) if the ownership is interfered with otherwise than by dispossession or withholding of possession, the owner may demand from the disturber the removal of the interference. If further interference is to be apprehended, the owner may sue for an injunction. (2) The claim is excluded, if the owner is obliged to tolerate the interference’ (unofficial translation).


50 – See Article 949 of the Codice civile (Italian Civil Code) establishing the negatory action, according to which ‘[t]he owner can sue to have declared the non-existence of rights claimed by others in the thing, when he has reason to fear prejudice from them. If disturbances or molestations also occur, the owner can request their cessation …’ (unofficial translation).


51 – See F. Lawson and B. Rudden, The Law of Property, Clarendon Press, Oxford, 1982, p. 126.


52 – F. Lawson, A common lawyer looks at the civil law: five lectures delivered at the University of Michigan, November 16, 17, 18, 19, and 20, 1953, Greenwood Press, Westport, 1977, p. 143 remarked, from the point of view of a Common Law lawyer, that in the domain of nuisance ‘we must expect to find much of our law of torts in the Civil law of property’.


53 – See A. Gambaro, ‘Perspectives on the codification of the law of property, an overview’, in European Review of Private Law, Vol. 5 (1997), pp. 497‑504, esp. p. 502, affirming that ‘common law systems do not conceive the problem of protection of property rights as a part of the law of property; rather, property rights are enforced through the law of torts’.


54 – See J. Rifkin, The Age of Access: The New Culture of Hypercapitalism Where All of Life is a Paid-For Experience, Tarcher/Putnam, New York, 2000, p. 6, p. 187 and pp. 236-240.


55 – See Henkel, paragraphs 46 and 47.


56 – See supra points 28 and 29 and case-law cited therein.


57 – See supra point 31 et seq.


58 – See for example, taking as a starting point the limits imposed by the law on the affected estate property, Article 844 of the Italian Civil Code, where it states that ‘(1) [t]he owner of an estate cannot prevent the emission of smoke, heat, fumes, noises, vibrations or similar propagation from a neighbouring estate, where they do not exceed what is normally tolerable, with regard to the condition of the sites. (2) In applying this rule the court shall reconcile the requirements of production with rights of ownership …’ (unofficial translation).


59 – As C. Von Bar, The Common European Law of Torts, Volume I, Clarendon Press, Oxford, 1998, N. 533, p. 551, mentions, these provisions of property law are ‘concerned to demarcate two equally valid “absolute” subjective rights’. Such rules ‘prescribe what an owner may and may not do with his property relative to his neighbour’.


60 – See, in the context of the French legal system, R. Libchaber, ‘Le droit de propriété, un modèle pour la réparation des troubles de voisinage’ in Mélanges Christian Mouly, Paris, Litec, 1998, I, p. 421‑423, p. 425, p. 427 and p. 438‑439.


61 – See, for instance, Case 814/79 Netherlands v Rüffer [1980] 3807, paragraph 8.


62 – Indeed it would be the characterisation of such an action as falling outside the scope of Article 16(1)(a) that would give rise to a rather strange result if the defendant had its domicile in a Contracting State other than Austria. If that was the case, the courts of the State of the defendant’s domicile would be granted general jurisdiction to rule on statutory restrictions of property rights in respect of two pieces of land both situated in another State, Austria.


63 – See in general on the problems of conflict of laws regarding estates located in different States, Niboyet, J. ‘Les conflits de lois relatifs aux immeubles situés aux frontières des États (frontières internationales et interprovinciales)’ in Revue de droit international et de législation comparée, 1933, p. 468.


64 – See in particular opinion of Advocate General Mancini, point 3, at p. 3799.


65 – Scherrens v Maenhout and Others, paragraphs 13 and 16.


66 – Opinion of Advocate General Mancini in Scherrens v Maenhout and Others, point 3 at p. 3799. Of course this solution entails disadvantages to the extent that each court could award substantively contradictory judgments with respect to the central issue under analysis in that case, of the existence of what, in essence, is a single lease.


67 – See the recent Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-1/04 Staubitz‑Schreiber, not yet published in the ECR, point 70 et seq. arguing, at point 72 that forum shopping ‘[s]ólo representa una optimización de las posibilidades procesales, fruto de la existencia de foros concurrentes, en la que no hay nada ilícito’.


68 – Bier v Mines de Potasse d’Alsace, paragraphs 24-25, See subsequently Case C‑220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 10, Case C‑68/93 Shevill v Presse Alliance [1995] ECR I-415, paragraph 20 and 33, Case C‑364/93 Marinari v Lloyds Bank and another [1995] ECR I-2719, paragraph 11, and Case C-18/02 DFDS Torline [2004] ECR I-1417, paragraph 40.


69 – See, as regards this distinction, which does not fully correspond to the traditional distinction between actions in rem and actions in personam already described, G. Calabresi and A. Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ in Harvard Law Review, Volume 85, 1972, p. 1089, esp. p. 1092.


70 – See R. Posner, Economic Analysis of Law, 5th Ed., 1998, Aspen Publishing, New York, pp. 68‑71, arguing that a liability rule should be used when transaction costs are high and a property rule when such costs are low. Such transaction costs will be high when the harmful externalities originating from one estate in one State affect many different estates and persons in another State. This will be so to the extent that the ‘polluter’ under a property rule, in order to continue his activity, will have to ‘buy’ the ‘right to pollute’ from every property owner affected.


71 – See Cases 144/86 Gubisch Machinenfabrik v Palumbo [1987] 4861, paragraph 8 and Tatry, paragraph 32, recalling that the raison d’être of these provisions is ‘to prevent parallel proceedings before the courts of different Contracting States and to avoid conflicts between decisions which might result therefrom’.


72 – See Article 27(1) of the Convention.


73 – The present case deals with the Convention and not with Regulation 44/2001, but I see no prima facie reason not to consider that national courts which are granted jurisdiction under that regulation are acting within the scope of Community law in the sense of being subject to the general principles of Community law. In particular, in this context, the principles of proportionality, non-discrimination and effective judicial protection.