Nuclear Power Plant Injunction Case (No 2)

CourtCourt of Appeal of Linz (Austria)
Austria, Superior Provincial Court (Oberlandesgericht) of Linz
Nuclear Power Plant Injunction Case (No 2)

Jurisdiction Territorial Tort committed outside jurisdiction Effects within jurisdiction Construction of nuclear power plant in Czechoslovakia Threat of interference with land use in Austria Action brought by Austrian landowner against Czechoslovakia for mandatory injunction to prevent construction Whether municipal courts entitled to exercise jurisdiction

State immunity Jurisdictional immunity Action against foreign State for injunction to prevent construction of nuclear power plant Whether foreign State entitled to jurisdictional immunity

State immunity Attachment and execution Enforcement of financial penalty against foreign State Whether compatible with Article IX of Introductory Act to Austrian Jurisdictional Statute (EGJN)

Environment Action against State regarding environmental damage Transboundary nuclear pollution Nuclear power plant whose operation threatens to damage private property Whether landowner in neighbouring country entitled to obtain injunction to prevent construction

Relationship of international law and municipal law Incorporation of principles of international law concerning State immunity into municipal law Introductory Act to Austrian Jurisdictional Statute (EGJN), Article IX The law of Austria

Summary: The facts:The plaintiff lodged a claim against Czechoslovakia for a mandatory injunction to prevent the construction of a nuclear power plant in that country. He alleged that the installation would seriously impair or render impossible the use of land which he owned in Austria. He argued that any judgment which he might obtain in Czechoslovakia could not be enforced there whereas an Austrian judgment could be enforced by the imposition of a fine or a claim for damages. The Provincial Court (Landesgericht) of Linz rejected the claim for lack of jurisdiction ratione loci and the plaintiff appealed.

Held:The appeal was dismissed.

(1) The pointlessness of instituting legal proceedings abroad did not provide a basis for municipal legal proceedings if a lawfully obtained municipal decision could not be enforced abroad with any degree of certainty. The municipal courts would not countenance the creation of judgments which were no more than worthless pieces of paper (p. 581).

(2) The position adopted by the Supreme Court in its judgment of 23 February 19881 in a case involving essentially the same facts, that a judgment rendered in...

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