Torts

• Author: International Law Group
• Pages: 16-17

Page 16

Under the terms of Article 5(3) of the Brussels I Regulation issued by the Council of the European Community, German courts had international jurisdiction to entertain a claim to bar future infringements of property rights. Here, thePage 17

Defendant, living in another Member State had, on German territory, impaired or threatened the property interests belonging, or allegedly belonging, to a German citizen.

In the present case, the Defendant had claimed ownership of a painting of some value owned and/ or painted by the Plaintiff. Under ß 1004 of the German Civil Code (BGB), the owner of property had two main options. First, he or she could claim that a third person must abstain in the future from alleging that the property in question was theirs where they directed such allegations against the owner. Second, the owner would have a claim where he or she had become aware that the defendant had articulated such claims in front of third parties.

The present case dealt with the legal ownership of a painting, rightfully bought by the current owner in an auction which had taken place in the United States. The authorities of the former NAZI regime had unlawfully confiscated the picture from the original German artist/owner.

The heir and/or representative of the interests of the deceased artist/painter (Plaintiff ) had gone to a German court, claiming that the picture in question belonged to the painter's estate. The case eventually reached the Bundesgerichtshof (German Federal Supreme Court).

That Court noted that the jurisprudence of the European Court of Justice has given a broad interpretation of what constitutes tortious actions under the provisions of Article 5(3) of the Regulation. It had specifi cally included claims brought under ß 1004 BGB which seeks to prevent damage caused by infringements of property rights from taking place.

Moreover, the formulation used in Article 5(3), included damage that was "likely to occur." This makes it clear that damage need not have already...