CELEX: 62008CJ0115
Action for cessation of actual or potential nuisance caused to land by the activities of a nuclear power plant situated on the territory of another Member State
Obligation to tolerate actual or potential nuisance caused by installations which have been officially authorised in the Member State where the action is brought
Authorisations issued in other Member States not taken into account
Equal treatment
Principle of non-discrimination on grounds of nationality under the EAEC Treaty

The present reference for a preliminary ruling concerns the interpretation of Articles 10 EC, 12 EC, 28 EC and 43 EC.
The reference was made in the context of proceedings between the Land Oberösterreich and ČEZ as (‘ČEZ’) concerning actual
or potential nuisance emanating from ionising radiation affecting agricultural land situated in Austria and belonging to the
Land Oberösterreich, arising from ČEZ’s operation of a nuclear power plant at Temelín, in the Czech Republic.

Legal context

Community legislation
The EAEC Treaty
According to the second paragraph of Article 1 EA:
‘It shall be the aim of the Community to contribute to the raising of the standard of living in Member States and to the development
of commercial exchanges with other countries by the creation of conditions necessary for the speedy establishment and growth
of nuclear industries.’
Article 2 EA provides:
‘For the attainment of its aims the Community shall, in accordance with the provisions set out in this Treaty:
…
(b)      establish, and ensure the application of, uniform safety standards to protect the health of workers and of the general public,
(c)      facilitate investment and ensure, particularly by encouraging business enterprise, the construction of the basic facilities
required for the development of nuclear energy within the Community,
…’
Articles 30 EA to 39 EA make up Chapter 3, entitled ‘Health protection’, of Title II of the EAEC Treaty, entitled ‘Provisions
designed to encourage progress in the field of nuclear energy’.
Article 30 EA provides:
‘Basic standards for the protection of the health of workers and of the general public from the dangers arising from ionising
radiation shall be established within the Community.
The term “basic standards” shall mean:
(a)      the maximum doses compatible with adequate safety,
(b)      the maximum permissible degree of exposure and contamination,
…’
According to Article 31 EA:
‘The Commission shall work out the basic standards after obtaining the opinion of a group of authorities appointed by the
Scientific and Technical Committee from among the scientific experts, especially public health experts, of the Member States.
...
After consulting the Assembly, the Council, acting by means of a qualified majority vote on a proposal of the Commission which
shall transmit to it the opinions received from the Committees, shall determine the basic standards.’
Article 32 EA states:
‘At the request of the Commission or of a Member State, the basic standards may be revised or supplemented according to the
procedure laid down in Article 31.
The Commission shall be bound to examine any such request made by a Member State.’
Article 33 EA provides:
‘Each Member State shall enact the legislative and administrative provisions required to ensure compliance with the basic
standards so determined ...
The Commission shall make recommendations in order to ensure the harmonisation of the provisions applicable in Member States
in this respect.
For this purpose, Member States shall communicate to the Commission all such provisions applicable at the time of the entry
into force of this Treaty and any subsequent draft provisions of the same nature.
...’
Article 35 EA is worded as follows:
‘Each Member State shall set up the facilities necessary for the permanent control of the level of radioactivity in the air,
water and soil and for controlling compliance with the basic standards.
The Commission shall have right of access to such control facilities; it may examine their operation and efficiency.’
According to Article 36 EA:
‘The competent authorities shall, in order that the Commission may be kept informed of the level of radioactivity likely to
affect the population, report regularly to the Commission on the control provided for in Article 35.’
Article 37 EA provides:
‘Each Member State shall submit to the Commission such general data concerning any plan for the disposal of any kind of radioactive
waste as will enable the Commission to determine whether the implementation of such plan is likely to involve radioactive
contamination of the water, soil or airspace of another Member State.
The Commission, after consulting the group of experts referred to in Article 31, shall give its opinion thereon within a period
of six months.’
Article 38 EA provides:
‘The Commission shall make recommendations to Member States regarding the level of radioactivity in the air, water or soil.
The Commission shall, in case of urgency, issue a directive requiring the Member State concerned to take, within a period
fixed by the Commission, all measures necessary to prevent the basic standards from being exceeded and to ensure observance
of any applicable provisions.
If such State does not comply with the Commission’s directive within the prescribed period, the Commission or any Member State
concerned may, notwithstanding the provisions of Articles 141 and 142, refer the matter to the Court of Justice immediately.’
Article 192 EA is worded as follows:
‘Member States shall take all general or particular measures which are appropriate for ensuring the carrying out of the obligations
arising out of this Treaty or resulting from acts of the institutions of the Community. They shall facilitate the achievement
of the aims of the Community.
They shall abstain from any measures likely to jeopardise the achievement of the aims of this Treaty.’
The Convention on Nuclear Safety
The accession of the European Atomic Energy Community to the Convention on Nuclear Safety, adopted on 17 June 1994, was approved
by Commission Decision 1999/819/Euratom of 16 November 1999 (OJ 1999 L 318, p. 20). All of the Member States are also parties
to that convention.
The third paragraph of the Declaration attached to Decision 1999/819, as amended by Commission Decision 2004/491/Euratom of
29 April 2004 (JO 2004 L 172, p. 7), states that ‘[t]he Community possesses competences, shared with the … Member States,
in the fields covered by Article 7 and Articles 14 to 19 of the Convention as provided for by the Treaty establishing the
European Atomic Energy Community in Article 2(b) and the relevant Articles of Title II, Chapter 3, entitled “Health and Safety”’.
According to Article 1(ii) thereof, the objectives of the Convention on Nuclear Safety are, inter alia, ‘to establish and
maintain effective defences in nuclear installations against potential radiological hazards in order to protect individuals,
society and the environment from harmful effects of ionising radiation from such installations’.
Article 7 of the Convention on Nuclear Safety provides:
‘1.      Each Contracting Party shall establish and maintain a legislative and regulatory framework to govern the safety of nuclear
installations.
2.      The legislative and regulatory framework shall provide for:
(i)      the establishment of applicable national safety requirements and regulations;
(ii)      a system of licensing with regard to nuclear installations and the prohibition of the operation of a nuclear installation
without a licence;
(iii) a system of regulatory inspection and assessment of nuclear installations to ascertain compliance with applicable regulations
and the terms of licences;
(iv)      the enforcement of applicable regulations and of the terms of licences, including suspension, modification or revocation.’
Article 8(1) of that convention provides:
‘Each Contracting Party shall establish or designate a regulatory body entrusted with the implementation of the legislative
and regulatory framework referred to in Article 7, and provided with adequate authority, competence and financial and human
resources to fulfil its assigned responsibilities.’
Article 14 of that convention, entitled ‘Assessment and verification of safety’, states:
‘Each Contracting Party shall take the appropriate steps to ensure that:
(i)      comprehensive and systematic safety assessments are carried out before the construction and commissioning of a nuclear installation
and throughout its life. Such assessments shall be well documented, subsequently updated in the light of operating experience
and significant new safety information, and reviewed under the authority of the regulatory body;
(ii)      verification by analysis, surveillance, testing and inspection is carried out to ensure that the physical state and the operation
of a nuclear installation continue to be in accordance with its design, applicable national safety requirements, and operational
limits and conditions.’
Article 15 of the Convention on Nuclear Safety, entitled ‘Radiation protection’, provides:
‘Each Contracting Party shall take the appropriate steps to ensure that in all operational states the radiation exposure to
the workers and the public caused by a nuclear installation shall be kept as low as reasonably achievable and that no individual
shall be exposed to radiation doses which exceed prescribed national dose limits.’
Articles 16 to 19 of that convention, entitled ‘Emergency preparedness’, ‘Siting’, ‘Design and construction’ and ‘Operation’
respectively, lay down various obligations relating to those matters.
Directive 96/29/Euratom
Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers
and the general public against the dangers arising from ionising radiation (OJ 1996 L 159, p. 1), was adopted on the basis
of Articles 31 EA and 32 EA.
According to Article 2(1) of that directive:
‘This Directive shall apply to all practices which involve a risk from ionising radiation emanating from an artificial source
or from a natural radiation source in cases where natural radionuclides are or have been processed in view of their radioactive,
fissile or fertile properties, namely:
(a)      the production, processing, handling, use, holding, storage, transport, import to and export from the Community and disposal
of radioactive substances;
(b)      the operation of any electrical equipment emitting ionising radiation and containing components operating at a potential difference
of more than 5 kV;
(c)      any other practice specified by the Member State.’
Article 4(1)(a) of the same directive, entitled ‘Authorisation’, provides:
‘Except as provided for in this Article, each Member State shall require prior authorisation for the following practices:
(a)      operation and decommissioning of any facility of the nuclear fuel cycle ...’
Article 6(3) of Directive 96/29 provides:
‘In addition each Member State shall ensure that:
(a)      in the context of optimisation all exposures shall be kept as low as reasonably achievable, economic and social factors being
taken into account;
(b)      without prejudice to Article 12, the sum of the doses from all relevant practices shall not exceed the dose limits laid down
in this Title for exposed workers, apprentices and students and members of the public.’
Article 13 of that directive fixes the dose limits to be observed for members of the public.
Under Title VIII of the same directive, entitled ‘Implementation of radiation protection for the population in normal circumstances’,
Article 43 thereof, entitled ‘Basic principles’, provides:
‘Each Member State shall create the conditions necessary to ensure the best possible protection of the population based on
the principles set out in Article 6 and to apply the fundamental principles governing operational protection of the population.’
Article 44 of Directive 96/29, entitled ‘Conditions for authorisation of practices involving a risk from ionising radiation
for the population’, provides:
‘Operational protection of the population in normal circumstances from practices subject to prior authorisation means all
arrangements and surveys for detecting and eliminating the factors which, in the course of any operation involving exposure
to ionising radiation, are liable to create a risk of exposure for the population which cannot be disregarded from the radiation
protection point of view. Such protection shall include the following tasks:
(a)      examination and approval of plans for installations involving an exposure risk, and of the proposed siting of such installations
within the territory concerned, from the point of view of radiation protection;
(b)      acceptance into service of such new installations subject to adequate protection being provided against any exposure or radioactive
contamination liable to extend beyond the perimeter, taking into account, if relevant, demographic, meteorological, geological,
hydrological and ecological conditions;
(c)      examination and approval of plans for the discharge of radioactive effluents.
These tasks shall be carried out in accordance with rules laid down by the competent authorities on the basis of the extent
of the exposure risk involved.’
Article 45 of that directive, entitled ‘Estimates of population doses’, is worded as follows:
‘The competent authorities shall:
(a)      ensure that dose estimates from practices referred to in Article 44 are made as realistic as possible for the population as
a whole and for reference groups of the population in all places where such groups may occur;
(b)      decide on the frequency of assessments and take all necessary steps to identify the reference groups of the population, taking
into account the effective pathways of transmission of the radioactive substances;
(c)      ensure, taking into account the radiological risks, that the estimates of the population doses include:
–        assessment of the doses due to external radiation, indicating, where appropriate, the quality of the radiation in question,
–        assessment of the intake of radionuclides, indicating the nature of the radionuclides and, where necessary, their physical
and chemical states, and determination of the activity and concentrations of these radionuclides,
–        assessment of the doses that the reference groups of the population are liable to receive and specification of the characteristics
of these groups;
(d)      require records to be kept relating to measurements of external exposure, estimates of intakes of radionuclides and radioactive
contamination as well as the results of the assessment of the doses received by reference groups and by the population.’
Article 46 of the same directive provides, under the title ‘Inspection’:
‘As regards health protection of the population each Member State shall establish a system of inspection to enforce the provisions
introduced in compliance with this Directive and to initiate surveillance in the area of radiation protection.’
Article 47(1) of Directive 96/29, entitled ‘Responsibilities of undertakings’, provides:
‘Each Member State shall require the undertaking responsible for practices as referred to in Article 2 to conduct them in
accordance with the principles of health protection of the population in the area of radiation protection and in particular
to carry out the following tasks within its installations:
(a)      achieving and maintaining an optimal level of protection of the environment and the population;
(b)      checking the effectiveness of technical devices for protecting the environment and the population;
(c)      acceptance into service, from the point of view of surveillance of radiation protection, of equipment and procedures for measuring
and assessing, as appropriate, exposure and radioactive contamination of the environment and the population;
(d)      regular calibration of measuring instruments and regular checking that they are serviceable and correctly used. ’
Articles 48 to 53 of that directive, which make up Title IX thereof, relate to interventions in case of radiological emergencies.
Article 54 of the same directive provides:
‘This Directive establishes the basic safety standards for the protection of the health of workers and the general public
against the dangers arising from ionising radiation with the aim of their uniform implementation by Member States. If a Member
State is to adopt dose limits which are stricter than those laid down in this Directive, it shall inform the Commission and
the Member States.’
It is common ground that the Republic of Austria did not communicate such information to the Commission or to the other Member
States.

National legislation
Paragraph 364(2) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) (‘the ABGB’) states:
‘The owner of land may prohibit his neighbour from producing effects, emanating from the latter’s land, by effluent, smoke,
gases, heat, odours, noise, vibration and the like, in so far as they exceed normal local levels and significantly interfere
with the usual use of the land. Direct transmission, without a specific legal right, is unlawful in all circumstances.’
Paragraph 364a of the ABGB provides:
‘However, if the interference is caused, in excess of that level, by a mining installation or an officially authorised installation
on the neighbouring land, the landowner is entitled only to bring court proceedings for compensation for the damage caused,
even where the damage is caused by circumstances which were not taken into account in the official authorisation process.’

The dispute in the main proceedings and its context
The Land Oberösterreich is the owner of land used for agriculture and agricultural trials, on which there is an agricultural
college. The land is situated about 60 km from the Temelín nuclear power plant, which itself is situated in the Czech Republic,
50 km from the Austrian border.
That power plant is operated by the Czech energy-supply undertaking,  ČEZ,  a limited company incorporated under Czech law
in which the Czech State holds a majority share.
The construction and operation of the Temelín nuclear power plant were authorised by the Czech authorities in 1985 and it
began operating on a trial basis on 9 October 2000.
In 2001, the Land Oberösterreich and other private owners brought actions before the Landesgericht Linz pursuant to Paragraph
364(2) of the ABGB, seeking an order that ČEZ put an end to the actual or potential nuisance relating to the ionising radiation
potentially emanating from that power plant.
According to the Land Oberösterreich, the radioactivity generated by the normal functioning of that nuclear power plant or,
in any event, the risk of contamination caused by the operation and potential malfunction of the plant cause a lasting interference
with the normal use of its land. The requirements for bringing an action, possibly preventive, for cessation of a nuisance
are therefore satisfied.
The Temelín facility was, moreover, the subject of negotiations between the Republic of Austria and the Czech Republic. A
protocol resulting from those negotiations was signed in Melk (Austria) on 12 December 2000. On 29 November 2001, those two
States adopted a document known as ‘The Conclusions of the Melk Process and Follow-Up’, referred to inter alia in the joint
declaration of the Czech Republic and the Republic of Austria concerning their bilateral agreement relating to the Temelín
nuclear power plant, annexed to the final act of the Treaty concerning the accession of 10 new Member States, including the
Czech Republic, signed in Athens on 16 April 2003 (OJ 2003 L 236, p. 17), in which both States declared that they would fulfil
the series of bilateral obligations set out in those conclusions.
Since 2003, the Temelín nuclear power plant has operated at full capacity.
According to the Communication of 6 November 2002 from the Commission to the Council and the European Parliament: Nuclear
safety in the European Union (COM(2002) 605 final), in the negotiations leading up to the accession of 10 new Member States
in 2004, particular attention was directed to the questions of nuclear safety at the power plants in the candidate States,
following the adoption of the resolutions of the Cologne Council of 3 and 4 June 1999, the Commission having been requested
to ensure the application of high safety standards in Central and Eastern Europe. The evaluation carried out led to the decommissioning
of some nuclear reactors and to recommendations for improvements to other reactors in order to bring them up to a level of
safety comparable to that prevailing in the European Union for comparable reactors, the implementation of which has been monitored
by the Commission and the Council (see, in particular, point 4 of the introduction of that communication and points 1.1(b)
and 3.2 thereof).
In parallel with the Melk process, in which the Commission played an active role in facilitating the dialogue between the
Czech and Austrian authorities, the safety of the Temelín nuclear power plant was evaluated by the Commission and the Council,
as were the other nuclear installations in the candidate countries, and the results of that evaluation showed that the Temelín
nuclear power plant, subject to the implementation of the proposed recommendations, showed a satisfactory level of nuclear
safety (see point 1.1(b) of that communication).
Moreover, as indicated by point 5.3.2 of the Commission’s Communication: Summary of the activities carried out during 2004
and 2005 in implementation of Title II, Chapters 3 to 10, of the Euratom Treaty (COM(2006) 395 final), since the accession
of the Czech Republic to the European Union, checks have been carried out at Temelín in 2004 and in 2005, pursuant to Article
35 EA.
The Commission also issued an opinion on 24 November 2005 concerning the plan for the disposal of radioactive waste resulting
from modifications at the site of the Temelín nuclear power plant, in the Czech Republic, in accordance with Article 37 of
the Euratom Treaty (OJ 2005 C 293, p. 40). In that opinion, the Commission concluded inter alia that ‘the implementation of
the plan for the disposal of radioactive waste in whatever form resulting from modifications at the site of the Temelín Nuclear
Power Plant …, both in normal operation and in the event of an accident of the type and magnitude considered in the General
Data, is not liable to result in radioactive contamination, significant from the point of view of health, of the water, soil
or airspace of another Member State’.
On 3 November 2006, the two reactors of the Temelín power plant were inspected and found to be compliant with the prevailing
legislation; a definitive declaration was issued to that effect.

The questions referred for a preliminary ruling
The Landesgericht Linz states that, according to previous case-law, Paragraph 364a of the ABGB, which precludes bringing actions
for cessation of a nuisance emanating from installations which have been granted official authorisation, was also applicable
in respect of installations authorised by foreign authorities where it appeared that the nuisance in question was authorised
by international law and the conditions of authorisation applicable in the State of origin were, in essence, equivalent to
those prevailing in Austria.
In a judgment of 4 April 2006, however, the Oberster Gerichtshof held that only authorisations granted by the Austrian authorities
come within the scope of application of Paragraph 364a. It took the view that the relevant article was based exclusively on
consideration of diverging national interests and there was no reason why Austrian law should restrict the property rights
of Austrian landowners purely in the interests of protecting a foreign economy and public interests in another country.
According to the Landesgericht Linz, that interpretation of the Oberster Gerichtshof could be contrary to Community law in
that it discriminates between installations which have been granted official authorisation by the Austrian authorities and
those which have been granted authorisation by the authorities of another Member State.
Considering that neither the EC and EAEC Treaties nor the secondary law deriving therefrom contain rules governing the grant
of authorisations for nuclear power plants and the recognition of such authorisations in Member States other than those which
issued them, the national court seeks to ascertain whether that discrimination infringes Articles 10 EC, 12 EC, 28 EC or 43
EC.
In those circumstances, the Landesgericht Linz decided to stay the proceedings and refer the following questions to the Court
for a preliminary ruling:
‘1.      (a)   Does it constitute a measure having equivalent effect within the meaning of Article 28 EC for an undertaking operating a power
plant in a Member State, in compliance with the laws of that State and the relevant provisions of Community law, by means
of which it produces electricity that it delivers to various Member States, to be forced, pursuant to an injunction in respect
of a potential nuisance emanating from that power plant granted by a judgment of a court in a neighbouring Member State –
which is enforceable in all Member States pursuant to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) – to make changes to that installation in order to bring
it in line with the technical rules of another Member State or even – if, because of the complexity of the plant as a whole,
those changes are impossible to make – to stop operations at the installation, in a situation in which that court, as a result
of an interpretation of national legal provisions given by the highest court of that country, is not allowed to take into
account the existing operating authorisation for the power plant granted by the authorities of the Member State in which the
plant is located, even though it would take into account, in the context of such an action for an injunction, an authorisation
for an installation granted by the domestic authorities, with the effect that no judgment granting an injunction would be
delivered in relation to an installation operating under an authorisation granted by the domestic authorities?
(b)   Are the grounds for justification laid down in the EC Treaty to be interpreted as meaning that it is unlawful, in any event,
to make a distinction under the laws of a Member State between authorisations for installations granted by the domestic authorities
and those granted by the authorities of another Member State, in so far as that distinction is motivated by the desire to
protect only the national economy but not the economy of another Member State, since this is a purely economical motive which
is not recognised as worthy of protection in the context of the fundamental freedoms?
(c)   Are the grounds of justification laid down in the EC Treaty and the corresponding principle of proportionality to be interpreted
as meaning that a global distinction made under the laws of a Member State between authorisations for installations granted
by the domestic authorities and authorisations for installations granted by the authorities of another Member State is per
se unlawful, because the operation of an installation authorised by the authorities of the Member State in which it is located
has to be assessed by the national court of another Member State in each individual case on the basis of the actual danger
posed by operation of the installation to public policy, public security or public health or on the basis of other recognised
overriding requirements of public interest?
(d)   Having regard to the principle of proportionality that must be considered in the context of the grounds of justification,
are the courts of a Member State under an obligation, in any event, to treat the operating authorisation for an installation
granted in the Member State in which it is located like an authorisation for an installation granted by the domestic authorities
if the authorisation granted in the Member State in which the installation is located is essentially equivalent, in legal
terms, to that of an authorisation granted by the domestic authorities?
(e)   For the purposes of considering the above questions, is it relevant that the installation authorised in the Member State in
which it is located is a nuclear power plant, if, in another Member State in which an action for an injunction to prevent
a nuisance which it is feared will emanate from a nuclear power plant is pending, operation of that type of installation is
not permitted per se, even though other nuclear facilities are operated there?
(f)   If the interpretation of the national provisions which is described in Question 1(a) infringes Article 28 EC, are the courts
of the Member State in which such an action for an injunction is pending under an obligation to interpret domestic law in
a way conforming with Community law, so that the term “officially authorised installation” can cover both operating authorisations
granted by the domestic authorities and those granted by the authorities of another Member State?
2.      (a)   Is it compatible with the prohibition of restrictions on the freedom of establishment of nationals of a Member State in the
territory of another Member State laid down in Article 43 EC for an undertaking which operates a power plant in a Member State
in compliance with the laws of that State and the relevant provisions of Community law to be forced, pursuant to an injunction
in respect of a potential nuisance emanating from that power plant granted by a judgment of a court in a neighbouring Member
State – which is enforceable in all Member States pursuant to Regulation No 44/2001 – to make changes to that installation
in order to bring it in line with the technical rules of another Member State or even – if, because of the complexity of the
plant as a whole, those changes are impossible to make – to stop operations at the installation, in a situation in which that
court, as a result of an interpretation of national legal provisions given by the highest court in that country, is not allowed
to take into account the existing operating authorisation for the power plant granted by the authorities of the Member State
in which the plant is located, even though it would take into account, in the context of such an action for an injunction,
an authorisation for an installation granted by the domestic authorities, with the effect that no judgment granting an injunction
would be delivered in relation to an installation operating under an authorisation granted by the domestic authorities?
(b)   Are the grounds on which freedom of establishment can be restricted to be interpreted as meaning that it is unlawful, in any
event, to make a distinction under the laws of a Member State between authorisations for installations granted by the domestic
authorities and those granted by the authorities of another Member State, in so far as that distinction is motivated by the
desire to protect only the national economy but not the economy of another Member State, since this is a purely economical
motive which is not recognised as worthy of protection in the context of the fundamental freedoms?
(c)   Are the grounds justifying a restriction of the freedom of establishment which are laid down in the EC Treaty and, in particular,
the principle of proportionality to be interpreted as meaning that a global distinction made under the laws of a Member State
between authorisations for installations granted by the domestic authorities and authorisations for installations granted
by the authorities of another Member State is per unlawful, because the operation of an installation authorised by the authorities
of the Member State in which it is located has to be assessed by the national court of another Member State in each individual
case on the basis of the actual danger posed by operation of the installation to public policy, public security or public
health or on the basis of other recognised overriding requirements of public interest?
(d)   Having regard to the principle of proportionality that must be considered in the context of justifying interference with the
freedom of establishment, are the courts of a Member State under an obligation, in any event, to treat the operating authorisation
for an installation granted in the Member State in which it is located like an authorisation for an installation granted by
the domestic authorities if the authorisation granted in the Member State in which the installation is located is essentially
equivalent, in legal terms, to that of an authorisation granted by the domestic authorities?
(e)   For the purposes of considering the above questions, is it also relevant in the context of the freedom of establishment that
the installation authorised in the Member State in which it is located is a nuclear power plant, if, in another Member State
in which an action for an injunction against that nuclear power plant is pending, operation of that type of installation is
not permitted per se, even though other nuclear facilities are operated there?
(f)   If the interpretation of the national provisions which is described in Question 2(a) infringes Article 43 EC, are the courts
of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law
in a way conforming with Community law, so that the term “officially authorised installation” can cover both operating authorisations
granted by the domestic authorities and those granted by the authorities of another Member State?
3.      (a)   Does it constitute prohibited indirect discrimination on grounds of nationality within the meaning of Article 12 EC for the
courts of a Member State to take into account authorisations for installations granted by the domestic authorities in the
context of a private action for an injunction brought against those installations, with the result that claims for cessation
of operation of the installation or its modification are excluded, but not to take into account in the context of such actions
for an injunction authorisations of installations located in other Member States granted by the authorities of those Member
States?
(b)   Does such discrimination fall within the scope of the Treaty, since it affects the legal conditions under which undertakings
operating such installations may establish themselves in an EU Member State as well as the legal conditions under which such
undertakings produce electricity and deliver it to other EU Member States, so that it is at least indirectly connected to
the realisation of the fundamental freedoms?
(c)   Can such discrimination be justified on objective grounds, given that the relevant courts of the Member State do not conduct
an individual assessment taking into consideration the facts underlying the authorisation of the installation in the Member
State in which it is located? Would it not be consistent with the principle of proportionality – at least if the condition
is fulfilled that the authorisation is essentially equivalent, from a legal point of view, to an authorisation for an installation
granted by the domestic authorities – for the courts of the other Member State to take into account the authorisation granted
by the authorities in the Member State in which the installation is located?
(d)   If the interpretation of the national provisions which is described in Question 3(a) infringes Article 12 EC, are the courts
of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law
in a way conforming with Community law, so that the term “officially authorised installation” can cover both operation authorisations
granted by the domestic authorities and those granted by the authorities of another Member State?
4.      (a)   Does the principle of loyal cooperation laid down in Article 10 EC with respect to the application of Community law also apply
in respect of relationships among Member States?
(b)   Is it to be inferred from the principle of loyal cooperation that the Member States must not render other Member States’ exercise
of public authority more onerous or even impossible and does this apply, in particular, to decisions by Member States concerning
the planning, construction and operation of nuclear installations within their territory?
(c)   If the interpretation of the national provisions which is described in Question 4(a) infringes Article 10 EC, are the courts
of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law
in a way conforming with Community law, so that the term “officially authorised installation” can cover both operation authorisations
granted by the domestic authorities and those granted by the authorities of another Member State?’

Preliminary observation
According to the Austrian Government, the national court gave an incorrect description of Paragraph 364a of the ABGB. The
case-law is in fact to the effect that authorisations granted in Austria also fall outside the scope of application of that
provision if they were adopted following a procedure which did not confer the status of party on the neighbour or where there
was serious nuisance or risk to life or health. The difference in treatment described by the national court is therefore not
established.
The Land Oberösterreich states that, contrary to what is stated in the order for reference, the expression ‘officially authorised
installation’ in Paragraph 364a of the ABGB may also apply to authorisations granted by the authorities of another State.
That would be the case where the nuisance is authorised under international law, where the conditions of authorisation prevailing
in the Member State where the installation is situated are equivalent to those provided for in the State where the action
is brought, and where the owner of the property jeopardised has been able to participate as a party to the authorisation proceedings.
However, in the present case, it is common ground that a nuclear power plant cannot be authorised under Austrian law, that
the authorisation granted to ČEZ does not comply with the technical standards or procedural requirements currently in force
and that the Land Oberösterreich was not able to participate in the authorisation procedure in question.
It must be borne in mind, however, that it is not for the Court to rule on the interpretation of national provisions, as such
an interpretation falls within the exclusive jurisdiction of the national courts. Thus, the Court, when a question is referred
to it by a national court, must base itself on the interpretation of national law as described to it by that court (see, to
that effect, inter alia, Case C‑360/06
Heinrich Bauer Verlag
[2008] ECR I-7333, paragraph 15 and case-law cited).

The questions referred for a preliminary ruling

Preliminary considerations
As evidenced by the very wording of the questions referred for a preliminary ruling, the national court has formulated them
on the assumption that the decision which it may have to take to order ČEZ to adapt the Temelín nuclear power plant, or even
cease its operation if the required adaptations cannot be made, will carry the authority which attaches to decisions taken
pursuant to Regulation No 44/2001 in all Member States.
In its observations, the Czech Government raises two objections to that assumption.
In the first place, it disputes that the provisions of Regulation No 44/2001 are even applicable to the judicial decision
thus contemplated. Article 66(1) of that regulation, in principle, rules out the applicability of those provisions where,
as here, legal proceedings were brought prior to the entry into force of that regulation. Moreover, neither of the two exceptions
provided for in Article 66(2) are applicable here. First, the action in the main proceedings was brought only after the entry
into force of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial
matters (OJ 1978 L 304, p. 36) between the two States in question, since the Czech Republic was not a party thereto when the
action was instituted. Secondly, the jurisdiction of the Austrian courts in the present case derives not from jurisdictional
rules consistent with the rules laid down in Chapter II of that regulation, but from a purely domestic rule based on the legal
domicile of the applicant in the main proceedings.
In the second place, the Czech Government maintains that, even if the provisions of Regulation No 44/2001 were applicable,
Article 34(1) of that regulation, which provides that a judgment is not to be recognised where such recognition is manifestly
contrary to public policy in the Member State in which recognition is sought, applies in the present case before the Czech
courts.
In the light of the answer that will be given below to the questions referred by the national court, however, it is not necessary
to rule on the objections thus formulated by the Czech Government, nor, more generally, on the interpretation of the provisions
of Regulation No 44/2001.

Admissibility of the questions referred for a preliminary ruling
The Land Oberösterreich maintains that the questions referred are inadmissible on two grounds.
First, the excessive length of the questions and the fact that they list a large number of arguments and facts make it impossible
to provide clear answers.
The Court finds, however, that the facts and matters of law in the reasoning in the grounds of the order for reference and
in the questions themselves are such as to enable it to exercise the powers conferred on it.
Secondly, the Land Oberösterreich maintains that there are insufficient links between the situation at issue in the main proceedings
and Community law, with the result that the questions referred are artificial or hypothetical in nature.
The Court points out that the issue of whether a situation such as that in the main proceedings comes within the scope of
application of the Community provisions referred to by the national court is a question of substance relating to the interpretation
thereof, with the result that any doubts in that regard do not affect the admissibility of the questions referred.
It follows from the foregoing that the reference for a preliminary ruling is admissible.

Identification of the Community provisions requiring interpretation
In its decision, the national court sets out the doubts it has regarding the compatibility of Paragraph 364a of the ABGB with
Community law, given the difference in treatment such a provision gives rise to between, on the one hand, undertakings having
an installation which has been officially authorised in Austria, which do not face the prospect of legal proceedings from
their neighbours, including a possible action for an injunction to prevent a nuisance and, on the other, undertakings which,
like ČEZ, have an installation, in this case a nuclear power plant, which has been authorised by the competent authorities
of another Member State and is faced with such an action for an injunction to prevent a nuisance.
In that regard, the national court identifies more specifically four provisions of the EC Treaty which, in its view, may preclude
such a difference in treatment, namely Articles 10 EC, 12 EC, 28 EC and 43 EC respectively.
Observations submitted to the Court
Without prejudice to the positions they have advocated in relation to the four abovementioned articles of the EC Treaty, ČEZ,
the Czech, French and Polish Governments and the Commission submit that a number of provisions of the EAEC Treaty and the
rules adopted on the basis thereof are relevant to the issues raised by the national court.
Taking the view that the difference in treatment at issue in the main proceedings is contrary to Article 12 EC, the Commission
submits inter alia in that regard that the prohibition of discrimination on grounds of nationality laid down in that article
is a general principle which also applies under the EAEC Treaty or that, at the very least, the fact that the case concerns
an undertaking coming within the scope of that treaty weighs in favour of the application of Article 12 EC thereto. Articles
30 EA to 32 EA, Directive 96/29 and Article 37 EA in particular indicate that the situation at issue in the main proceedings
comes within the scope of the EAEC Treaty.
At the hearing, the Commission stated inter alia in that regard that, if a Member State does not allow an action for an injunction
to prevent a nuisance to be upheld when the activity causing the nuisance has been officially authorised, that Member State
may not authorise such an action when the activity in question is that of a nuclear power plant established in another Member
State where it has been officially authorised. Such difference in treatment cannot, the Commission submits, be justified,
inter alia because such an authorisation indicates, on the basis of the law deriving from the EAEC Treaty, that compliance
with ionising radiation exposure limits in normal operations has been duly examined and continues to be monitored.
According to the Czech Government, Articles 30 EA to 39 EA and Articles 7, 8 and 14 of the Convention on Nuclear Safety are
applicable to the main proceedings. The Austrian courts’ examination of the authorisation granted for the operation of the
Temelín nuclear power plant by the State Office for Nuclear Safety, the national authority in the Czech Republic designated
pursuant to Article 8 of that convention, disregards the abovementioned provisions, including the powers conferred on that
office and, by extension, Article 192 EA. The provisions as a whole imply in particular an obligation of mutual trust between
Member States as regards authorisations granted and inspections carried out by them.
At the hearing, ČEZ pleaded that for an Austrian court to carry out an appraisal of the official authorisation granted by
the competent Czech authority or of the Temelín nuclear power plant’s safety encroaches on the jurisdiction of the Czech Republic
as recognised by the Convention on Nuclear Safety and disregards both that convention and the duty of sincere cooperation
laid down in Article 192 EA.
The Polish Government considers that Articles 30 EA to 39 EA, Directive 96/29, in particular Articles 4(1)(a), 13, 44 and
45 thereof, and the Convention on Nuclear Safety, including Articles 7, 14 and 15 thereof, establish minimum harmonised standards
for emission dose limits of ionising radiation with which every nuclear power plant must comply in order to obtain operating
authorisation. Those provisions also provide for the due introduction of safety assessments and checks in the form of analysis,
monitoring, testing and inspections, and enable both the Commission, through on-site inspections and information which must
be provided to it, and the neighbouring Member States, through inter-party consultations and sharing of information, to conduct
an assessment of the activities of nuclear power plants. In those circumstances, the national court should restrict itself
to ascertaining that ČEZ holds an authorisation for the Temelín nuclear power plant; to go beyond that is contrary to Article
192 EA.
The French Government, which intervened at the stage of the oral procedure, stated that in the present case it was necessary
to take into consideration Articles 30 EA to 32 EA, 33 EA, 35 EA, 37 EA and 38 EA, read in the light of the Court’s case-law,
and Directive 96/29, the purpose of which is specifically to define a framework for protecting populations against the risks
associated with nuclear installations.
The French Government adds that the operating conditions at the Temelín nuclear power plant were the subject of an in-depth
examination by the Commission during the accession process and its operation was not called into question at that time. It
also refers to the inspections carried out by the Commission and its favourable opinion, referred to in paragraphs 47 and
48 of this judgment.
The French Government goes on to state that the framework established by the EAEC Treaty does not allow a court of a Member
State to order an operator of a nuclear power plant operating in another Member State, in compliance with the requirements
imposed by the legislation under that framework, to adapt or cease the activities of that power plant.
The French and Polish Governments, moreover, indicated at the hearing that they share the Commission’s view that the principle
of non-discrimination on grounds of nationality laid down in Article 12 EC is a general principle which is also applicable
in the area covered by the EAEC Treaty. They state that such a principle is, in the present case, frustrated by the difference
in treatment resulting from Paragraph 364a of the ABGB in respect of nuclear power plants which have an authorisation granted
in a Member State other than the Republic of Austria in compliance with rules which have been the subject of a minimum harmonisation
at Community level.
Findings of the Court
The fact that the national court has, formally speaking, worded the question referred for a preliminary ruling with reference
to certain provisions of Community law does not preclude the Court from providing to the national court all the elements of
interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred
to them in its questions (see, inter alia, Case C‑258/04
Ioannidis
[2005] ECR I‑8275, paragraph 20 and case-law cited, and Case C‑152/03
Ritter-Coulais
[2006] ECR I‑1711, paragraph 29 and case-law cited). It is for the Court to extract from all the information provided by
the national court, in particular from the grounds of the decision referring the questions, the points of Community law which
require interpretation, having regard to the subject-matter of the dispute (see, inter alia, Case 35/85
Tissier
[1986] ECR 1207, paragraph 9).
The Court notes as a preliminary point that, in the present case, the dispute in the main proceedings concerns essentially
the issue whether an industrial activity consisting in the operation of a nuclear power plant may be pursued and, if so, what
are the technical conditions which may be imposed on such a power plant because of an actual or potential nuisance allegedly
caused to land situated in another Member State due to its possible exposure to ionising radiation originating from that power
plant.
Such industrial activity, by reason of its very purpose and to a large degree, falls within the scope of application of the
EAEC Treaty and it is common ground that that treaty contains a set of rules relating precisely to the protection of populations
and the environment against ionising radiations.
Moreover, the Court, under Articles 234 EC and 150 EA, has identical jurisdiction for the purpose of interpreting the relevant
provisions of the EC and EAEC Treaties. Thus the fact that the national court, formally speaking, referred questions to the
Court pursuant to Article 234 EC concerning the interpretation of provisions of the EC Treaty does not prevent this Court
from providing to the national court all the elements which may be of assistance in adjudicating on the case pending before
it, including when they come under the EAEC Treaty and involve the Court ruling by virtue of its jurisdiction under Article
150 EA (see, to that effect, Case 44/84
Hurd
[1986] ECR 29, paragraphs 1 and 14).
It must also be remembered that Article 305(2) EC provides expressly that the provisions of the EC Treaty do not derogate
from those of the EAEC Treaty.
In the present case, an examination of the principles and specific provisions of the EAEC Treaty and certain measures adopted
pursuant thereto will, as will be shown below, enable a response to be given to the queries raised by the national court.

The principle of prohibition of discrimination on grounds of nationality within the scope of application of the EAEC Treaty
The existence of the principle
Article 12 EC, referred to in the third question, prohibits any discrimination on grounds of nationality within the scope
of application of the EC Treaty.
Although the EAEC Treaty does not contain any explicit provision which corresponds to that article of the EC Treaty, the fact
remains that, as the Court pointed out very early on, the principle laid down in Article 12 EC forms part of the ‘principles’
of the Community and the rule on equal treatment with nationals is one of the fundamental legal provisions of the Community
(see, inter alia, Case 2/74
Reyners
[1974] ECR 631, paragraphs 15 and 24).
Article 12 EC, which prohibits any discrimination on grounds of nationality, is a specific expression of the general principle
of equality, which itself is one of the fundamental principles of Community law (see, to that effect, inter alia, Case 810/79
Überschär
[1980] ECR 2747, paragraph 16, and Case C‑224/00
Commission
v
Italy
[2002] ECR I‑2965, paragraph 14).
In the light of the foregoing, it would appear to be contrary to both the purpose and the consistency of the treaties to allow
discrimination on grounds of nationality, which is prohibited under the EC Treaty by virtue of Article 12 EC, to be tolerated
within the scope of application of the EAEC Treaty.
It must therefore be recognised that although the principle of prohibition of any discrimination on grounds of nationality
within the scope of application of Community law is expressly laid down only in Article 12 EC, it is a general principle which
is also applicable under the EAEC Treaty.
The existence, in the main proceedings, of a difference in treatment on grounds of nationality within the scope of application
of the EAEC Treaty
First of all, it is settled case-law that the rules regarding equality of treatment between nationals and non-nationals forbid
not only overt discrimination by reason of nationality or, in the case of a company, its seat, but also all covert forms of
discrimination which, by the application of other distinguishing criteria, lead to the same result (see, inter alia, Case
C-330/91
Commerzbank
[1993] ECR I-4017, paragraph 14, and
Commission
v
Italy
, paragraph 15).
In that regard, the order for reference indicates that, under Paragraph 364a of the ABGB, an undertaking having an industrial
installation situated on Austrian territory which has been officially authorised by the competent Austrian authorities cannot,
in principle, be subject to an action for an injunction to prevent an actual or potential nuisance caused by that installation
to neighbouring properties, brought on the basis of Paragraph 364(2) of the ABGB. In such a case, the only remedy available
to owners of neighbouring property is a claim for damages for harm actually caused to their property, even when the loss is
caused by factors which were not taken into account in the official authorisation procedure.
Paragraph 364a of the ABGB thus draws no distinction according to the specific nature of the authorised industrial activity
pursued at the installation or according to which factors were taken into account in the authorisation procedure.
However, the national court states that an undertaking which, like ČEZ, has an industrial installation situated in the territory
of another Member State, where it has received all the required official authorisations granted by the authorities of that
Member State, may be the subject of an action for an injunction to prevent a nuisance brought pursuant to Paragraph 364(2)
of the ABGB, without being able to rely on the exception provided for in that regard in Paragraph 364a of the ABGB.
It is, moreover, common ground that undertakings which operate an installation situated in a Member State other than the Republic
of Austria are usually undertakings established in that other Member State.
It follows that the difference in treatment introduced by Paragraph 364(2) and Paragraph 364a of the ABGB, which works to
the detriment of installations which have received official authorisation in a Member State other than the Republic of Austria
in reality leads to the same outcome as a difference in treatment on grounds of nationality.
Secondly, as that difference in treatment on grounds of nationality is established, it is necessary to ascertain whether in
the present case it comes within the scope of application of the EAEC Treaty.
Although it is true that the EAEC Treaty does not contain a title relating to nuclear energy production installations, the
fact remains that Title II of that Treaty, entitled ‘Provisions for the encouragement of progress in the field of nuclear
energy’, includes a Chapter 3, entitled ‘Health and safety’, which is intended to provide for the protection of public health
in the nuclear sector (see, inter alia, Case C‑62/88
Greece
v
Council
[1990] ECR I‑1527, paragraph 17).
The Court has held on a number of occasions that the provisions of said Chapter 3 are to be interpreted broadly in order to
give them practical effect (see, inter alia, Case C‑29/99
Commission
v
Council
[2002] ECR I-11221, paragraph 78). Thus, having noted that Chapter 3 implements Article 2(b) EA, which requires the Community
to ‘establish uniform safety standards to protect the health of workers and of the general public and ensure that they are
applied’, the Court has held inter alia that it is apparent that such protection cannot be achieved without controlling the
sources of harmful radiation (see
Commission
v
Council
, paragraph 76).
In paragraph 72 of
Commission
v
Council
, the Court, which was asked to rule on the scope of Community competence for the purposes of concluding the Convention on
Nuclear Safety, held that the Community possesses competences, shared with the Member States, to take, pursuant to Article
15 of that convention, the appropriate steps to ensure that in all operational states radiation exposure to workers and the
public caused by a nuclear installation be kept as low as reasonably achievable and that no individual be exposed to radiation
doses which exceed prescribed national dose limits.
In paragraph 82 of that same judgment, the Court added that it could be inferred from its earlier case-law that it is inappropriate,
in order to define the Community’s competences, to draw an artificial distinction between the protection of the health of
the general public and the safety of sources of ionising radiation. It inferred therefrom inter alia that the Community also
has a certain amount of external competence in the areas covered by Articles 7, 14 and 16 to 19 of the Convention on Nuclear
Safety, which cover, respectively, the authorisation system applicable to the construction and operation of nuclear power
plants, assessment and verification of safety, emergency preparedness, siting, design and construction of power plants and
operation thereof.
In particular, it held, with respect to Article 7 of the Convention on Nuclear Safety, that, even though the EAEC Treaty does
not grant the Community competence to authorise the construction or operation of nuclear installations, under Articles 30
EA to 32 EA the Community possesses legislative competence to establish, for the purpose of health protection, an authorisation
system which must be applied by the Member States. Such a legislative act constitutes a measure supplementing the basic standards
referred to in Article 30 EA (
Commission
v
Council
, paragraphs 88 and 89).
When interpreting Article 37 EA, which is a provision which must be applied in order to prevent the risk of radioactive contamination
of water, soil or airspace of another Member State, the Court has held inter alia that that article must be interpreted as
meaning that the Commission must be provided with general data relating to any plan for the disposal of radioactive waste
before such disposal is authorised by the competent authorities of the Member State concerned. The Court noted in that regard
the very great importance of the guidelines that the Commission can give, after consulting the group of experts, to that Member
State, which the Member State must be able to examine in detail in circumstances such that the Commission’s suggestions may
be taken into account before the authorisation is issued (Case 187/87
Land de Sarre and Others
[1988] ECR 5013, paragraphs 12 to 16, and Case C‑61/03
Commission
v
United Kingdom
[2005] ECR I-2477, paragraph 39).
It follows from all the foregoing that the granting of official authorisations for the construction and operation of nuclear
installations, in their various aspects relating to health protection against the dangers of ionising radiations for the general
public, comes within the scope of application of the EAEC Treaty.
The action in the main proceedings is aimed at determining whether the actual effects or potential effects due to current
or future ionising radiation emanating from the Temelín nuclear power plant justify, notwithstanding the authorisations granted
in respect of that power plant, ČEZ being ordered to adapt or even close it, in order to prevent or mitigate such effects
or risks.
It follows that the difference in treatment referred to in paragraph 97 of this judgment, such as that at issue in the main
proceedings, does come within the scope of application of the EAEC Treaty.
The existence of a justification
In accordance with the Court’s case-law, the finding in paragraph 107 of this judgment is not by itself sufficient to substantiate
a conclusion that the national provisions are incompatible with the prohibition of discrimination on grounds of nationality
under the EAEC Treaty. It is also necessary to ascertain whether the failure to take account of the official authorisations
granted in respect of nuclear installations situated in Member States other than the Republic of Austria, pursuant to Paragraph
364a of the ABGB, and the application of Paragraph 364(2) of the ABGB alone in respect of those installations, may not be
justified by objective considerations unrelated to nationality and, if so, whether such a difference in treatment is proportionate
to the legitimately pursued objective (see, inter alia, to that effect, regarding Article 12 EC,
Commission
v
Italy
, paragraph 20; Case C‑164/07
Wood
[2008] ECR I‑4143, paragraph 13; and Case C‑524/06
Huber
[2008] ECR I‑0000, paragraph 75).
As regards, first, the query contained in questions 1(b) and 2(b), it must be noted that the willingness of the Austrian legislature
to take account of the interests of domestic economic operators, to the exclusion of those of economic operators established
in other Member States, cannot be accepted as justification for the difference in treatment resulting from the legislation
at issue in the main proceedings. Just as they cannot justify a barrier to the fundamental principles of free movement of
goods or the freedom to provide services (see, inter alia, Case C‑120/95
Decker
[1998] ECR I‑1831, paragraph 39, and Case C‑158/96
Kohll
[1998] ECR I‑1931, paragraph 41), aims of a purely economic nature cannot justify discrimination on grounds of nationality
within the scope of application of the EAEC Treaty.
As regards, secondly, justifications which might be put forward relating to protection of life or health, referred to by the
national court, or even protection of the environment or property rights, also referred to by the Land Oberösterreich, they
do not appear, either, to be such as to justify a difference in treatment such as that at issue in the main proceedings, between
the official authorisations granted by the Austrian authorities in respect of industrial installations situated in Austria
and those granted in respect of a nuclear power plant situated in another Member State by the competent authorities there.
The Court notes as a preliminary point that, according to the fourth recital in the preamble to the EAEC Treaty, the signatories
thereto were ‘[a]nxious to establish conditions of safety which will eliminate danger to the life and health of the people’.
Article 2(b) EA, for its part, states that, in order to perform its task, the Community must, as provided for in that treaty,
‘establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied’.
These aspects are elaborated on in Articles 30 EA to 39 EA, which make up Chapter 3 of Title II of the EAEC Treaty, and are,
as the Court has noted earlier, intended to ensure the consistent and effective protection of the health of the general public
against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed
to such radiations (Case C‑70/88
Parliament
v
Council
[1991] ECR I‑4529, paragraphs 13 and 14).
Articles 30 EA and 31 EA provide, in particular, for the Community, following the opinion of a scientific group of experts,
to adopt basic standards for health protection for the general public against the dangers arising from ionising radiations.
Under the first paragraph of Article 33 EA, each Member State is required to lay down the appropriate provisions, whether
by legislation, regulation or administrative action, to ensure compliance with the basic standards which have been established
by the Community. Under the second paragraph of Article 33 EA, however, the Commission may make appropriate recommendations
for harmonising the provisions applicable in that field in the Member States. As observed by the Court, such competence to
make recommendations may be exercised, inter alia, with respect to those aspects relating to the design and construction as
well as the operation of a nuclear installation which enable compliance with the basic standards to be ensured. The Member
States are, furthermore, required to assist in drawing up those recommendations through the communications referred to in
the third paragraph of Article 33 EA (
Commission
v
Council
, paragraph 105).
Those basic standards, which must be governed inter alia by the principle of optimisation of protection (see, to that effect,
Case C‑376/90
Commission
v
Belgium
[1992] ECR I‑6153, paragraph 27), and which have been amended on various occasions in order to take account of developments
in scientific knowledge about radiation protection, are fixed by Directive 96/29.
As evidenced by paragraphs 23 to 34 of this judgment, Directive 96/29 also contains a number of provisions relating to systems
for authorisation, monitoring, inspection and intervention in the event of radiological emergency, which the Member States
are to introduce in respect of practices entailing a risk of ionising radiation for the general public.
Secondly, the legal structure established by the EAEC Treaty with respect to health protection is not limited to setting out
basic standards, but also comprises an important section relating to compliance with those standards and monitoring of the
radioactivity of the air, water and soil.
The provisions of Chapter 3 of Title II of the EAEC Treaty form a coherent whole conferring on the Commission powers of some
considerable scope in order to protect the population and the environment against the risks of nuclear contamination (see
Land de Sarre and Others
, paragraph 11, and
Commission
v
Council
, paragraph 79).
That, in particular, is the purpose of Articles 35 EA to 38 EA which, as the Court has observed on previous occasions, confer
substantial powers on the Commission (
Commission
v
United Kingdom
, paragraph 35).
Article 35 EA thus requires the Member States to establish the facilities necessary to carry out continuous monitoring of
the level of radioactivity in the air, water and soil and to ensure compliance with the basic standards.
Under the second paragraph of Article 35 EA, the Commission is given a right of access to those facilities in order to verify
their operation and efficiency. Article 36 EA further lays down an obligation for the competent national authorities to communicate
regularly to the Commission the information on the checks referred to in Article 35 EA, so that the Commission is kept informed
of the level of radioactivity to which the public is exposed.
As mentioned in paragraph 47 of this judgment, the Commission did carry out checks at Temelín, pursuant to Article 35 EA,
in 2004 and 2005.
As stated in paragraph 104 of this judgment, the purpose of Article 37 EA is to prevent the possibility of radioactive contamination
of the water, soil or air of another Member State. Under that provision, the Commission must be provided with general data
relating to any plan for the disposal of radioactive waste before such disposal is authorised by the competent authorities
of the Member State concerned, in order to enable that Member State to examine the guidelines the Commission may give it,
after consulting the group of experts, in detail and in circumstances such that the Commission’s suggestions may be taken
into account before the authorisation is granted.
The Court has previously emphasised the importance of the role played in this area by the Commission, owing to its unique
overview of developments in the nuclear power industry throughout the territory of the Community (
Land de Sarre and Others
, paragraphs 12 and 13).
As stated in paragraph 48 of this judgment, on 24 November 2005 the Commission issued an opinion pursuant to Article 37 EA,
in which it concluded that the implementation of the planned disposal of radioactive waste, in any form whatsoever, resulting
from the modifications for the site of the Temelín nuclear power plant, is not such as to result, either in normal operation
or in the event of an accident of the type and magnitude considered in the general data, in significant radioactive contamination
from the point of view of health for the water, soil or airspace of another Member State.
Lastly, Article 38 EA gives the Commission, on the one hand, the power to make recommendations to the Member States with regard
to the level of radioactivity in the air, water and soil and, on the other, in cases of urgency, to issue a directive requiring
the Member State concerned to take, within a period laid down by the Commission, all necessary measures to prevent infringement
of the basic standards and to ensure compliance with regulations. Should the State in question fail to comply with the Commission
directive within the period laid down, the Commission or any Member State concerned may forthwith, by way of derogation from
Articles 141 EA and 142 EA, bring the matter before the Court of Justice.
Thirdly, it must be remembered that both the European Atomic Energy Community and its Member States are parties to the Convention
on Nuclear Safety, the objective of which according to Article 1(ii) is, inter alia, ‘to establish and maintain effective
defences in nuclear installations against potential radiological hazards in order to protect individuals, society and the
environment from harmful effects of ionising radiation from such installations’.
In that regard, Article 15 of that convention provides that each Contracting Party is to take the appropriate steps to ensure
that in all operational states the radiation exposure to the workers and the public caused by a nuclear installation is kept
as low as reasonably achievable.
The preamble to that convention further states, in (iii), that ‘… responsibility for nuclear safety rests with the State having
jurisdiction over a nuclear installation’, whilst Article 7(2) of the same convention states that each Contracting Party is
to establish and maintain a legislative and regulatory framework comprising inter alia a system of licensing with regard to
nuclear installations and the prohibition of the operation of a nuclear installation without a licence, a system of regulatory
inspection and assessment of nuclear installations to ascertain compliance with applicable regulations and the terms of licences
and measures for the enforcement of applicable regulations and of the terms of licences.
Fourthly, it must be borne in mind that, as observed in paragraphs 45 and 46 of this judgment, in the negotiations leading
up to the accession of 10 new Member States to the European Union on 1 May 2004, the questions relating to safety at the power
plants in those States, including the Temelín nuclear power plant, were evaluated by the Commission, which led to the drafting
of Community recommendations for improvements to those reactors in order to bring them up to a level of safety comparable
to that prevailing in the European Union for comparable reactors, the implementation of which has been monitored by the Commission
and the Council.
It must also be borne in mind that, in the event of malfunction of the protection system introduced under the EAEC Treaty,
the Member States have a number of remedies at their disposal for obtaining the corrections necessary in the circumstances.
First of all, Article 32 EA gives each Member State the right to request that the basic standards fixed be revised or supplemented
in accordance with Articles 30 EA and 31 EA; the Commission is obliged to examine all such requests.
Next, under Article 142 EA, a Member State which considers that another Member State has failed to fulfil an obligation under
the EAEC Treaty may bring the matter before the Court. In cases of urgency as described in Article 38 EA, the matter may even
be brought before the Court immediately.
Lastly, like the corresponding provisions of the EC Treaty, Articles 145 EA to 149 EA provide for judicial review mechanisms
concerning both the lawfulness of the measures taken by the Council or the Commission and cases where one of those institutions
fails to take a decision, in breach of the EAEC Treaty.
In those circumstances, the Court finds that, if a Member State has enacted a domestic provision which, like Paragraph 364a
of the ABGB, as interpreted by the national court, prevents an action for an injunction to prevent an actual or potential
nuisance from being brought when the alleged nuisance originates from an officially authorised industrial installation, that
Member State cannot, in principle, exclude from the scope of application of such a provision authorisations granted in respect
of nuclear installations situated in other Member States by maintaining that such an exclusion is justified on grounds of
protecting life, public health, the environment or property rights.
Such an exclusion disregards completely the fact that the Community legislative framework, as described in paragraphs 111
to 134 of this judgment and of which such authorisations form a part, contributes precisely and essentially towards ensuring
such protection. That exclusion cannot be regarded as necessary for the purposes of protection and therefore cannot be held
to satisfy the requirement of proportionality, either.

The obligation to interpret national law in a manner which ensures compliance with Community law
As evidenced by question 1(f), question 2(f), question 3(d) and question 4(c), the national court also asks what are the likely
consequences of possible non-compliance with Community law of the interpretation currently applied by the national courts
in relation to the legislation at issue in the main proceedings.
In that regard, it must be borne in mind that, according to settled case-law which has developed in relation to Article 10
EC, which is also applicable in respect of Article 192 EA, the duty imposed on Member States by those provisions to take all
appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of Community law
is incumbent on all the authorities in the Member States, including, for matters within their jurisdiction, the courts. When
applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the
requirements of Community law. Where application in accordance with those requirements is not possible, the national court
must fully apply Community law and protect the rights conferred thereby on individuals, if necessary disapplying any provision
if its application would, in the circumstances of the case, lead to a result contrary to Community law (see, inter alia, Case
157/86
Murphy and Others
[1988] ECR 673, paragraph 11, and Case C‑262/97
Engelbrecht
[2000] ECR I‑7321, paragraphs 38 to 40).
In the light of all the foregoing, the answer to the questions referred is that the principle of prohibition of discrimination
on grounds of nationality within the scope of application of the EAEC Treaty precludes the application of the legislation
of a Member State, such as that at issue in the main proceedings, under which an undertaking in possession of the necessary
official authorisations for operating a nuclear power plant situated in the territory of another Member State, may be the
subject of an action for an injunction to prevent an actual or potential nuisance to neighbouring property emanating from
that installation, whereas undertakings having an industrial installation situated in the Member State where the action is
brought and in possession of an official authorisation may not be the subject of such an action and may only be the subject
of a claim for damages for harm caused to a neighbouring property.
By way of further answer, it is for the national court to give, in so far as possible, to the domestic legislation which it
must apply an interpretation which complies with the requirements of Community law. If such an application in accordance with
Community law is not possible, the national court is bound to apply Community law in full and protect the rights it confers
on individuals, and to disapply, if necessary, any provision in so far as application thereof, in the circumstances of the
case, would lead to a result which is contrary to Community law.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.
The principle of prohibition of discrimination on grounds of nationality within the scope of application of the EAEC Treaty
precludes the application of the legislation of a Member State, such as that at issue in the main proceedings, under which
an undertaking in possession of the necessary official authorisations for operating a nuclear power plant situated in the
territory of another Member State, may be the subject of an action for an injunction to prevent an actual or potential nuisance
to neighbouring property emanating from that installation, whereas undertakings having an industrial installation situated
in the Member State where the action is brought and in possession of an official authorisation may not be the subject of such
an action and may only be the subject of a claim for damages for harm caused to a neighbouring property.
2.
It is for the national court to give, in so far as possible, to the domestic legislation which it must apply an interpretation
which complies with the requirements of Community law. If such an application in accordance with Community law is not possible,
the national court is bound to apply Community law in full and protect the rights it confers on individuals, and to disapply,
if necessary, any provision in so far as application thereof, in the circumstances of the case, would lead to a result which
is contrary to Community law.
[Signatures]
*
Language of the case: German.