Case C-343/04: Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 21 July 2004 in the case of Land Oberösterreich against ČEZ a.s.
Date: 2004-10-09
Institutions: Court of Justice
Subjects: EU Member State, interpretation of the law, ionising radiation, jurisdiction, land and buildings, nuisance, transfrontier pollution

C 251/8

EN

Official Journal of the European Union

9.10.2004

Reference for a preliminary ruling by the Oberste
Gerichtshof by order of that court of 21 July 2004 in the
case of Land Oberösterreich against ČEZ a.s.

(Case C-343/04)

(2004/C 251/14)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Oberste Gerichtshof of 21
July 2004 received at the Court Registry on 10 August 2004,
for a preliminary ruling in the case of Land Oberösterreich
against ČEZ a.s. on the following question:

Is the term ‘proceedings which have as their object rights in
rem in immovable property’ in Article 16(1)(a) of the Conven-
tion of 27 September 1968 on jurisdiction and the enforce-
ment of judgments in civil and commercial matters (‘the Brus-
sels Convention’) to be interpreted as including a (preventive)
action for an injunction, pursuant to Paragraph 364(2) of the
Allgemeines bürgerliches Gesetzbuch (‘the ABGB’) (the General
Civil Code), prohibiting emissions from a property located in a
neighbouring State — which is not a Member State of the
European Union — affecting land owned by the claimant (in
this case, ionising radiation emitted from a nuclear plant in the
Czech Republic)?

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen's Bench Division
(Administrative Court), by order of that court dated 14
July 2004, in the case of The Queen on the application of
International Air Transport Association against Depart-
ment for Transport and in the case of The Queen on the
application of European Low Fares Airline Association
and Hapag-Lloyd Express GmbH against Department for
Transport

(Case C-344/04)

(2004/C 251/15)

the High Court of

Reference has been made to the Court of Justice of the Euro-
Justice
pean Communities by order of
(England & Wales), Queen's Bench Division (Administrative
Court), dated 14 July 2004, which was received at the Court
Registry on 12 August 2004 for a preliminary ruling in the
case of The Queen on the application of International Air
Transport Association against Department for Transport and in
the case of The Queen on the application of European Low
Fares Airline Association and Hapag-Lloyd Express GmbH
against Department for Transport on the following questions:

1. Whether Article 6 of Regulation 261/2004 (1) is invalid on
grounds that it is inconsistent with the Convention for the
Unification of Certain Rules for International Carriage by
Air known as the Montreal Convention 1999, and in par-
ticular Articles 19, 22 and 29 of the Montreal Convention
1999, and whether this (in conjunction with any other rele-
vant
the Regulation as a
whole?

factors) affects the validity of

2. Whether the amendment of Article 5 of the Regulation
during consideration of the draft text by the Conciliation
Committee was done in a manner that is inconsistent with
the procedural requirements provided for in Article 251 EC
and,
if so, whether Article 5 of the Regulation is invalid
and, if so, whether this (in conjunction with any other rele-
vant
the Regulation as a
whole?

factors) affects the validity of

3. Whether Articles 5 and 6 of Regulation 261/2004 (or part
thereof) are invalid on grounds that they are inconsistent
with the principle of legal certainty, and if so whether this
invalidity (in conjunction with any other relevant factors)
affects the validity of the Regulation as a whole?

4. Whether Articles 5 and 6 of Regulation 261/2004 (or part
thereof) are invalid on grounds that they are not supported
by any or any adequate reasoning, and if so whether this
invalidity (in conjunction with any other relevant factors)
affects the validity of the Regulation as a whole?

5. Whether Articles 5 and 6 of Regulation 261/2004 (or part
thereof) are invalid on grounds that they are inconsistent
with the principle of proportionality required of any Com-
this invalidity (in
munity measure, and if so whether
factors) affects the
conjunction with any other relevant
validity of the Regulation as a whole?

6. Whether Articles 5 and 6 of Regulation 261/2004 (or part
in
thereof) are invalid on grounds that they discriminate,
particular, against
the second Claimant
the members of
organisation in a manner that is arbitrary or not objectively
justified, and if so whether this invalidity (in conjunction
with any other relevant factors) affects the validity of the
Regulation as a whole?

7. Is Article 7 of the Regulation (or part thereof) void or
invalid on grounds that the imposition of a fixed liability in
the event of flight cancellation for reasons that are not
covered by the extraordinary circumstances defence is discri-
minatory,
the standards of proportionality
required of any Community measure, or is not based on any
adequate reasoning, and if so whether this invalidity (in
factors) affects the
conjunction with any other relevant
validity of the Regulation as a whole?

fails to meet

8. In circumstances where a national court has granted permis-
sion to bring a claim in that national court, which raises
questions as to the validity of provisions of a Community
instrument and which it considers is arguable and not
unfounded, are there any principles of Community law in
connection with any test or threshold which the national
court should apply when deciding under Article 234(2) EC
whether to refer those questions of validity to the ECJ?

(1) Regulation (EC) No 261/2004 of the European Parliament and of
the Council of 11 February 2004 establishing common rules on
compensation and assistance to passengers in the event of denied
boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91 (Text with EEA relevance) — Common
Statement (OJ L 46, 17.2.2004, p. 1).