Opinion of the Advocate General — ECLI:EU:C:2009:242
Date: 2009-04-22
Language of the case: German
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the Austrian Supreme Court’s interpretation of Paragraph 364a of the ABGB given by the Landesgericht Linz. It asserts that a proper interpretation of the jurisprudence of the Supreme Court provides greater scope for the administrative authorisations issued by the authorities of Member States other than Austria to be taken into account. Although this Court can assess the conditions under which a reference to it has been made in order to assess whether it has jurisdiction or to enable it to give an answer, (12) it has no authority to pronounce upon matters of national law. The Court is empowered only to assess the compatibility of such law with Community law and not to assess the validity of rival interpretations of domestic law. The Court has repeatedly stressed the cooperative nature of the reference procedure (13) and the autonomy of national courts in relation to matters of national law. (14) It is therefore incumbent on the Court to answer the questions referred to it by the national court and not to seek to overrule the interpretation of provisions of national law arrived at by the national court in question. In the event that the Landesgericht Linz has misinterpreted the relevant jurisprudence of the Austrian courts it will be for appeal mechanisms within the Austrian legal system, and not this Court, to remedy such a misinterpretation. IV – Issues in Respect of Articles 10, 12 and 28 EC 21. In the light of the above findings, it is unnecessary to enter into a detailed examination of the issues arising in respect of Articles 10, 12 and 28 EC. This case involves the consideration of the impact of domestic Austrian laws on the economic activities of a nuclear facility located in another Member State. The effect of such laws in rendering less attractive the exercise by this facility of its Article 43 EC rights and the possible justification of such restrictions by the Austrian authorities raise issues that are, in substance, the same as those arising under Article 28 EC. Extensive separate consideration of Article 28 EC is therefore unnecessary for the purposes of answering the questions posed by the referring court. 22. Articles 10 and 12 EC are not stand-alone provisions and can apply only within the field of application of another article of the Treaty. The finding that the interpretation of Paragraph 364a of the ABGB by the OGH, as described by the referring court, would amount to a violation of Article 43 EC makes separate consideration of the issues arising under Articles 10 and 12 EC superfluous. The outcome of my reasoning may well be rather similar to that which would result were I to follow the suggestion of the Commission and to find that the relevant Austrian legislation fell within the field of application of the EC Treaty but was not covered by either Article 28 EC or Article 43 EC. However, for the reasons stated above, I am of the view that the Commission’s approach is undesirable. 23. The requirements which my approach places on the Austrian courts all reflect the reality that, in the context of the increasing interaction and interdependence of Member State legal systems which the process of integration has brought about, national authorities will be called on with ever greater frequency to make decisions which will have impacts beyond the borders of their own State. As I noted above, each side in this case has sought to invoke the failure of the authorities in one Member State to take account of the interests of citizens of their own State in order to justify particular actions on the part of the authorities of their own State. This very fact underlines the reality that the process of legal and political integration has meant that national decisions have a broader reach and impact than before. This also means that Community law also expands the scope of authority of national powers and the instruments available to protect the interests of their citizens. The corollary of this increased closeness and increased power is increased responsibility. Such responsibility requires that national authorities take account of the full range of those who will be affected by their decisions. Community institutions must ensure that Community law does not become a vehicle through which the institutions of one Member State try to impose their will upon other Member States or ignore the rights and interests of those in other Member States affected by their decisions. This would run contrary to the very purpose of the process of European integration. Ideally, this should be remembered by all parties to the present dispute. V – Conclusion 24. In the light of these considerations, I am of the opinion that it would be sufficient for the Court to give the following answer to the questions referred to it by the Landesgericht Linz: A national rule which prevents a national court charged with giving judgment in relation to potential nuisance emanating from an enterprise located in another State, from taking account of an existing administrative authorisation granted to such an enterprise by the authorities of the State in which the enterprise is located, in circumstances where the national court would take account of an equivalent authorisation granted by the domestic authorities, constitutes an unjustifiable restriction on the rights guaranteed by Article 43 EC. The administrative authorisations of other Member States may be refused recognition if such a refusal is non-discriminatory in nature and is properly justified on grounds of public policy, public security or public health and provided that proper account is taken of compliance with relevant Community rules and the interests of all affected parties. In the light of the finding in relation to Article 43 EC, it is unnecessary to assess the compatibility of the relevant national legislation with Articles 10, 12 and 28 EC. 1 – Original language: English. 2 – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 3 – Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 27; Case C‑360/00 Ricordi [2002] ECR I‑5089, paragraph 24; Case C‑28/04 Tod’s and Tod’s France [2005] ECR I‑5781, paragraph 18; Case C‑43/95 Data Delecta and Forsberg [1996] ECR I‑4661, paragraph 15; Case C‑323/95 Hayes [1997] ECR I‑1711, paragraph 17; and Case C‑122/96 Saldanha and MTS [1997] ECR I‑5325, paragraph 20. 4 – Joined Cases C‑158/04 and C‑159/04 Alfa Vita Vassilopoulosand Carrefour Marinopoulos [2006] ECR I‑8135. 5 – Case C‑446/03 Marks and Spencer [2005] ECR I‑10837, points 37 to 40. 6 – Alfa Vita, point 41, Marks and Spencer, points 37 to 40. 7 – See for example Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37, and Case C‑424/97 Haim [2000] ECR I‑5123, paragraph 57. 8 – Ibid. 9 – See Articles 1 and 2 EA. 10 – See Commission opinion of 24 November 2005 concerning the plan for the disposal of radioactive waste resulting from modifications at the site of the Temelín Nuclear Power Plant located in the Czech Republic, in accordance with Article 37 of the Euratom Treaty (2005/C 293/08) (OJ 2005 C 29, p. 40). 11 – Opinion in Case C‑343/04 ČEZ [2006] ECR I‑4557, points 93 and 94. 12 – Case 16/65 Schwarze [1965] ECR 877. 13 – Case C‑343/90 Lourenço Dias [1992] ECR I‑4673, paragraph 17. 14 – Case 6/64 Costa v ENEL [1964] ECR 585, 593.