Garden Contamination Case (No 2)

CourtRegional Court (Germany)
Federal Republic of Germany, District Court (Amtsgericht) of Bonn
Provincial Court (Landgericht) of Bonn.
Garden Contamination Case (2)1

State immunity Jurisdictional immunity Distinction between sovereign and non-sovereign activities of foreign State Whether classification of activity a matter for international law, the law of the forum or the law of the State engaged in the activity Production of nuclear energy Whether a sovereign activity State corporation Soviet corporation operating Chernobyl nuclear plant Whether an entity distinct from the State Jurisdiction claimed on basis of ownership of property in use for non-sovereign purposes

State responsibility Transboundary nuclear pollution Duties of State operating nuclear plant Duty under international law to provide information about nuclear accidents Whether breach gives rise to claim by individual Federal Republic of Germany Federal Atomic Energy Act, Section 25(1) Whether Union of Soviet Socialist Republics of State corporation the operator of the Chernoby1 nuclear plant Test of control Liability in tort

Environment Action against State regarding environmental damage Transboundary nuclear pollution Chernobyl nuclear accident Whether resident of Federal Republic of Germany entitled to damages for damage caused by pollution Nature of duty of State operating nuclear plant

Jurisdication Territorial Tort committed outside jurisdiction Effects within jurisdication Transboundary nuclear pollution The law of the Federal Republic of Germany

Summary: The facts:The plaintiff lodged a claim against the Soviet Union for damage caused by radioactive contamination arising from the accident at the Chernobyl nuclear reactor in April 1986. He alleged that, because of the danger to health, the crops which he had been growing in his garden in Berlin had had to be destroyed. The plaintiff applied for legal aid.

Held (by the District Court of Bonn):The proposed legal proceedings offered no real prospect of success and legal aid would not be granted.

(1) The claim was inadmissible because it did not fall within the situs jurisdiction of the Court. The plaintiff had failed to establish jurisdiction on the basis that the Soviet Union owned property within the territorial area of the Court (Article 23 of the Code of Civil Procedure (ZPO)) since he had not specified property which was used for non-sovereign State activity and therefore not covered by immunity. A general reference to bank accounts at a certain bank was insufficient.

(2) Where it was sought to base a claim against a foreign State on tortious liability, a distinction was to be drawn between sovereign and non-sovereign activity. Only in respect of the latter could a foreign State be subject to domestic jurisdiction. The characterization of an activity as sovereign or non-sovereign was to be made according to the law of the forum. In the Federal Republic energy production was conducted on a purely private basis

so that the State's responsibility in respect of energy was a non-sovereign matter. Claims in tort which arose from the activities of the Soviet energy industry were therefore in principle amenable to Federal jurisdiction

(3) In this case, however, there was no legal basis for the claim against the Soviet Union since there was no treaty to which the Soviet Union was a party, nor any general rule of international law, which laid down an obligation towards the plaintiff whose breach could give rise to a duty to pay compensation. There was a duty under international law to provide information about nuclear accidents, whose non-observance could give rise to a duty to compensate. But failure to comply with this obligation resulted in the affected State suffering damage to its integrity and it was the State and not any private individual which was entitled to claim compensation.

(4) A basis for a claim was provided by Section 25(1) of the Federal Atomic Energy Act since this provision allowed for waiver by the legislature of the territorial restrictions contained in Article 2 of the Paris Agreement of 16 November 1982. Under this provision, however, only an operator of an installation could be held liable to pay compensation for damage. Under Soviet administrative law, it was the AES Chernobyl, an independent legal body, and not the Soviet Union itself, which was the operator of the nuclear installation in question.

(5) Neither was there any basis for holding the Soviet Union liable in tort (Article 823(1) of the Civil Code), since it had no direct responsibility for the operation of the plant. If a State-owned enterprise was in fact so closely controlled as to deprive it of all independence the position might be different. The plaintiff, however, had failed to adduce adequate evidence in this regard. It could not simply be assumed that, in the Soviet system, all State enterprises were fully controlled by the State.

The plaintiff appealed to the Provincial Court of Bonn.

Held (by the Provincial Court of Bonn):The appeal was dismissed.

The proceedings offered no real prospect of success, essentially for the reasons given by the District Court. Furthermore, there was a lack of concrete evidence of damage giving rise to a right to compensation. The claim appeared to be frivolous, since anyone with economic sense would avoid judicial proceedings such as those at issue.

The following is the text of the judgment of the District Court (Amtsgericht) of Bonn:

grounds

On 26 April 1986 there was an explosion at the Russian nuclear power station, Chernobyl, located at Chernobyl in the Ukraine. This caused a radioactive cloud. Because of the wind conditions, the cloud spread westwards. On 28 April 1986 the poison cloud reached northwest Germany, contaminating the house and garden then belonging to the claimant in Drverden-Barme. The claimant was growing mixed fruit and vegetables there over an area of 780 square metres.

The damage caused by the radiation on 30 April 1986 seemed particularly high to the plaintiff in that he destroyed, without compensation, fruit and vegetables with a total value of DM 45. Because of the circumstances, the plaintiff did not cultivate further.

The plaintiff claims damages from the defendant [the USSR] in an amount to be determined by the Court, but in any case not less than DM 750. This claim is based on DM 45 for the fruit and vegetables which were destroyed, plus a sum of not less than DM 705 for lost enjoyment. The plaintiff originally lodged this claim against the defendant, represented by its Ambassador in Bonn, before the Bonn District Court (AG). The plaintiff then corrected the title and brought the claim against the defendant through the appropriate authorities.

The proposed legal proceedings, in the light of the plaintiff's pleadings so far, offer no real prospect of success. According to his own statements, the claim has not been validly made...

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