1. In the Judgement of February 23, 1988, what would the Austrian Supreme Court
ID: 362324 • Letter: 1
Question
1. In the Judgement of February 23, 1988, what would the Austrian Supreme Court have done if a private cause of action had been available in Czechoslovakia? How do you think the court would handle complaints about a nuclear accident such as Chernobyl?
Judgment of February 23, 1988 39 sterreichische Zeitschrift für ffentliches Recht und Völkerrecht 360 Supreme Court of Austria BACKGROUND AND FACTS The plaintiff, an owner of real estate in Austria near the former Czechoslovakia, brought action in Austrian courts seeking to prevent the construction of a nuclear power plant 115 kilometers away in Czechoslovakia. The plaintiff alleged that the plant had not been properly licensed and that the effects of radionuclides generated during the plant's normal operation, as well as those that would be released in a nuclear accident, threatened his real estate. The plaintiff alleged that the plant could not operate without emitting radioactive-contaminated water vapor and excessive warmth. continues The Court of First Instance denied the plaintiff's claim, It cannot be said that legal proceedings in Austria holding that it lacked jurisdiction ratione loci-would only lead to a judgment which is not enforceable geographic jurisdiction over the matter. On appeal, and therefore would only have academic, and not the Court of Second Instance affirmed the lower court protective, importance; although in the absence of a decision. The Oberste Gerichtshof (Supreme Court) of treaty on execution of judgments with the state in question, an execution of the judgment would presum- ably not be possible in Czechoslovakia, the pecuniary penalties imposed to enforce the claim.. could proba- The Court of First Instance-affirmed by the Court of bly be enforced in Austria and a violation by the Second Instance-has disavowed its [ownl jurisdiction defendant of the restraining order of a court could be a ratione loci.. but the Supreme Court is of the opinio legal ground for possible claims of damages by the Austria, however, disagreed with the courts below it. PER CURIAM that (the statute governing venue of claims related to plaintiff real estate] also provides jurisdiction ratione loci for As all conditions for Austrian jurisdiction exist but Austrian courts over claims... of real estate owners the jurisdiction ratione loci has been rejected by the affected by emissions lof a foreign statel. No treaty cort which would have been competent according to rules exist in the case in question with respect to Arian lawl, the Supreme Court.. is competent to designate a Court of First Instance as the court having It is unreasonable to require the claimant to pursue jurisdiction ratione loci in this case. legal proceedings in Czechoslovakia, which obviously Decision. The Supreme Court of Austria reversed are not possible because there the problem under te consideration is treated as a public law problem and Austrian courts lacked jurisdiction over the plaintiff's acts jure imperii [official acts] cannot give rise to ci claim. It remanded the matter to the trial court where law obligations. This view is not consistent with theplaintif's real estate was situated for further Austrian law lunder whichl foreign states can be sued litigation. for acts jure gestionis [commercial activityl before courts lof another statel: and the question whether acts of the state are acts jure imperi or jure gestionis is not to be determined by the national law in question but according to general international law. Under such international law, the construction and the operation of a... plant for the generation of electricity are not within the scope of jure imperii, but are jure gestionis and therefore not excluded from the national [Austrianl jurisdiction. finding of the Court of Second Instance thatExplanation / Answer
If a private cause of action had been available in Czechoslovakia then they would have taken the same decision as taken by the Austrian Supreme Court. Since at that time all conditions for Astrian jurisdiction exist but the jurisdiction ratione loci was not available hence it was rejected by the court.
The court would handle complaints more seriously as about a nuclear accident such as Chernobyl which has accounted around 59 deaths out of which 30 were direct.
An Austrian judgment for money damages against Czechoslovak government would have been enforced since the request was justified and stated that legal proceedings in the State concerned were unreasonable for the claimant
and obviously not possible, as there the problem under consideration was treated a public law problem and from acts iure imperii no civil obligations could arise.
Injunctive relief would have been possible in the form of competent ratione loci pursuant to section 28 of the Austrian law concerning the jurisdiction of courts in civil law matters, RGBl. 111/1895 as most recently amended,
BGBl. I Nr. 98/2001.
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