Introduction

The Supreme Court recently updated existing case law, stating that an action for a preventive injunction regularly requires that the infringement of rights have already begun.(1) The mere threat of an infringement of rights can constitute a claim for preventive relief under additional special circumstances (eg, where the applicant has an urgent need for legal relief because waiting for the infringement of the rights would lead to an irreparable damage). In such cases, the applicant must:

• mention the detailed circumstances that establish the serious and imminent threat of a damage; and
• provide proof of these circumstances if the respondent disputes them (a theoretical possibility of damage is insufficient).

Legal background

In a case concerning a foreign nuclear power plant, the High Court held that the need for legal preventive relief increases with the value of the right that is under threat; the immediacy of the threat can in part be substituted by its potential extent.

When determining whether a serious concern of a threat to a right exists, the court will consider:

• the probability of the threat becoming reality;
• the extent of the possible damage; and
• the value of the threatened right.

The more valuable the potentially threatened right, the more likely it is that the potential tortfeasor must refrain from activities that would lead to only a possibility of damage.

The requirements for an action for preventive relief before the first occurrence of damage must not be applied too restrictively in cases where:

• actualisation of the threat (eg, radioactive emissions) would lead to serious and long-lasting damage to the threatened person; or
• normal use of real estate would be seriously impaired for a long period of time.

Even if the degree of probability is low, the person under potential threat cannot be expected to wait until his or her rights have been be infringed if serious and irreversible consequences would be expected from such infringement. However, the mere hypothetical possibility of an infringement of rights is insufficient; even maintaining the highest standards of safety cannot with absolute certainty rule out an accident occurring at a potentially dangerous plant.

In summary, a preventive injunction will be issued if it has been determined that:

• the nuclear power plant was inferior in its design or failed to meet accepted Western standards; and
• this would lead to a significantly increased risk of an accident, the nuclear fallout of which would interfere with the plaintiffs’ real estate in a way that extends beyond the normal risk for the area.

No preventive injunction will be issued if high safety standards have been maintained.

Case study

The two reactors of the nuclear power plant at the centre of the lawsuit were evaluated on November 3 2006 and were conclusively found to be in accordance with European law. This was the result of both an Austrian-Czech discussion and evaluation process, and agreements with the Czech Republic in connection with its accession to the European Union.

The appeals court denied claims that the proceeding before the trial court was faulty and that such claims could no longer be brought in the case before the High Court. In accordance with the High Court’s ruling in a similar case, it can therefore be assumed that the danger posed by the nuclear power plant at Temelin did not constitute an illegal specific threat of the plaintiffs’ rights, but that it must be accepted as a inherent risk that can never be completely avoided.

The plaintiffs’ petition for an injunction will therefore be dismissed without the court needing to address whether the foreign plant operating licence is equivalent to a licence in accordance with Section 364a of the Civil Code, a question which is still in dispute at the third level of jurisdiction. Nonetheless, many remarks in the reply to the second appeal indicate that the European Court of Justice(2) appears to work on the assumption that the foreign plant operating licence should also be recognised if the foreign approval process does not treat neighbours as parties to the process, because the guaranteed protection of the health of the whole population also includes the protection of individuals’ rights. Furthermore, the European Atomic Energy Community Treaty guarantees the complete and effective protection of the population’s health from ionising radiation and the commission has inspection rights.

Comment

The more valuable the potentially threatened right, the more likely it is that the potential tortfeasor must refrain from activities that would lead to only some probability of damage. A preventive injunction will be issued in cases where it has been determined that the nuclear power plant is inferior in its design or fails to meet accepted Western standards, provided that this would lead to a significantly increased risk of an accident, the nuclear fallout of which would interfere with the plaintiffs’ real estate in a way that extends beyond the normal risk for the area.

Endnotes

(1) 3 Ob 134/12w, September 19 2012.

(2) See C-115/08.