# C_2009312EN.01000501.xml

| 19.12.2009 | EN | Official Journal of the European Union | C 312/5 |
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19.12.2009

EN

Official Journal of the European Union

C 312/5

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Judgment of the Court (Grand Chamber) of 27 October 2009 (reference for a preliminary ruling from the Landesgericht Linz — Austria) — Land Oberösterreich v ČEZ as

(Case C-115/08) (1)

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(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)

2009/C 312/06

Language of the case: German

Referring court

Referring court

Landesgericht Linz

Parties to the main proceedings

Parties to the main proceedings

Applicant: Land Oberösterreich

Applicant:

Defendant: ČEZ as

Defendant:

Re:

Re:

Reference for a preliminary ruling — Landesgericht Linz (Austria) — Interpretation of the principles of free movement of goods, freedom of establishment, non-discrimination on grounds of nationality and fairness — National provision stipulating that only an action for damages may be brought for a nuisance emanating from an officially authorised installation — Restricting application of that provision to authorisations granted by domestic authorities only, with the result that an action for an injunction can be brought for a nuisance emanating from an installation situated in the territory of another Member State — Temelín nuclear power plant

Operative part of the judgment

Operative part of the judgment

| 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. |
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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. |
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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.

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(1)  OJ C 142, 7.6.2008.

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