Case C-343/04: Judgment of the Court (First Chamber) of  18 May 2006  (reference for a preliminary ruling from the Oberster Gerichtshof) — Land Oberösterreich v ČEZ a.s. (Brussels Convention — Article 16(1)( a) — Exclusive jurisdiction in matters relating to property — Action for cessation of a nuisance caused, or likely to be caused, to land by the activities of a nuclear power station situated on the territory of a neighbouring State — Not applicable)
Date: 2006-07-15
Institutions: Court of Justice
Subjects: EU Member State, interpretation of the law, ionising radiation, jurisdiction, land and buildings, nuisance, transfrontier pollution

15.7.2006

EN

Official Journal of the European Union

C 165/5

Re:

Failure by a Member State to fulfil its obligations — Art. 12(1)
of and Annex VI to Council Directive 92/43/EEC of 21 May
1992 on the conservation of natural habitats and of wild fauna
and flora (OJ 1992 L 206, p. 7) — Authorisation by the autho-
rities of Castilla y León of hunting with snares in private
hunting areas

contract for the supply and management of fuel and heating
for heating appliances in buildings belonging to a municipality
— Award to a company the shares of which are held by
another company in which the municipality is a majority share-
holder

Operative part of the judgment

Operative part of the judgment

The Court rules:

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 179, 10.07.2004.

Judgment of the Court (First Chamber) of 11 May 2006
(Reference for a preliminary ruling from the Tribunale
amministrativo regionale della Lombardia (Italy)) — Carbo-
termo SpA, Consorzio Alisei v Comune di Busto Arsizio,
AGESP SpA

(Case C-340/04) (1)

(Directive 93/36/EEC — Public supply contracts — Award of
contract without a call for tenders — Award of the contract
to an undertaking in which the contracting authority has a
shareholding)

1. Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts precludes the
direct award of a public supply and service contract, the main
value of which lies in supply, to a joint stock company whose
Board of Directors has ample managerial powers which it may
exercise independently and whose share capital is, at present, held
entirely by another joint stock company whose majority share-
holder is, in turn, the contracting authority.

2. Article 13 of Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating in
the water, energy, transport and telecommunications sectorsmust
not be applied in the assessment of the requirement relating to the
inapplicability of Directive 93/36, according to which the under-
taking to which a supply contract was awarded directly must carry
out the essential part of its activities with the controlling authority.

3. In order to determine whether an undertaking carries out the essen-
tial part of its activities with the controlling authority, for the
purpose of deciding on the applicability of Directive 93/36,
account must be taken of all the activities which that undertaking
carries out on the basis of an award made by the contracting
authority, regardless of who pays for those activities, whether it be
the contracting authority itself or the user of the services provided;
the territory where the activities are carried out is irrelevant.

(2006/C 165/09)

Language of the case: Italian

(1) OJ C 251, 09.10.2004.

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Carbotermo SpA, Consorzio Alisei

Defendants: Comune di Busto Arsizio, AGESP SpA

Intervener: Associazione Nazionale Imprese Gestione servizi
tecnici integrati (AGESI)

Re:

Reference for a preliminary ruling — Tribunale Amministrativo
Regionale della Lombardia (Italy) — Interpretation of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts (OJ 1993 L 199, p. 1)
and of Article 13 of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities
operating in the water, energy, transport and telecommunica-
tions sectors (OJ 1993 L 199, p. 84) — Direct award of a

Judgment of the Court (First Chamber) of 18 May 2006
(reference for a preliminary ruling from the Oberster
Gerichtshof) — Land Oberösterreich v ČEZ a.s.

(Case C-343/04) (1)

(Brussels Convention — Article 16(1)( a) — Exclusive juris-
diction in matters relating to property — Action for cessation
of a nuisance caused, or likely to be caused, to land by the
activities of a nuclear power station situated on the territory
of a neighbouring State — Not applicable)

(2006/C 165/10)

Language of the case: German

Referring court

Oberster Gerichtshof

C 165/6

EN

Official Journal of the European Union

15.7.2006

Parties to the main proceedings

Parties to the main proceedings

Applicant: Land Oberösterreich

Defendant: ČEZ a.s.

Re:

Reference for a preliminary ruling — Oberster Gerichtshof
(Austria) — Interpretation of Article 16(1)(a) of the Brussels
Convention — Exclusive jurisdiction for ‘proceedings which
have as their object rights in rem in immovable property’ —
Action for cassation of a nuisance caused, or likely to be
caused to agricultural
land by a neighbouring nuclear plant
located on the territory of a non-contracting State

Operative part of the judgment

The Court:

Article 16(1)(a) of the Convention of 27 September 1968 on Juris-
diction and the Enforcement of Judgments in Civil and Commercial
Matters, as amended most
recently by the Convention of 29
November 1996 on the Accession of the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden, must be interpreted
as meaning that an action which, like that brought under Paragraph
364(2) of the Allgemeines bürgerliches Gesetzbuch (Austrian Civil
Code) in the main proceedings, seeks to prevent a nuisance affecting
or likely to affect land belonging to the applicant, caused by ionising
radiation emanating from a nuclear power station situated on the
territory of a neighbouring State to that in which the land is situated,
does not fall within the scope of that provision.

(1) OJ C 251, 9.10.2004.

Judgment of the Court (Grand Chamber) of 16 May 2006
(reference for a preliminary ruling from the Court of
Appeal
(Civil Division) — United Kingdom) — The
Queen, on the application of Yvonne Watts v Bedford
Primary Care Trust, Secretary of State for Health

(Case C-372/04) (1)

(Social security — National health system funded by the
State — Medical expenses incurred in another Member State
— Articles 48 EC to 50 EC and 152(5) EC — Article 22 of
Regulation (EEC) No 1408/71)

(2006/C 165/11)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Applicants: The Queen, on the application of Yvonne Watts

Defendants: Bedford Primary Care Trust, Secretary of State for
Health

Re:

Reference for a preliminary ruling — Court of Appeal (Civil
Division) — Interpretation of Articles 48, 49, 50, 55 and
152(5) EC and Article 22 of Council Regulation (EEC) No
1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to members
of their families moving within the Community, as amended
and updated by Council Regulation (EC) No 118/97 of
2 December 1996, and of Council Regulation (EEC) No 574/72
of 21 March 1972 fixing the procedure for implementing
Regulation No 1408/71, as amended and updated by Regu-
lation No 118/97 — Conditions for reimbursement of the costs
of hospital treatment incurred without prior authorisation in a
Member State other than that of the competent authority

Operative part of the judgment

1. The second subparagraph of Article 22(2) of Council Regulation
(EEC) No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons,
to self-employed persons
and to members of their families moving within the Community,
as amended and updated by Council Regulation (EC) No 118/97
of 2 December 1996, must be interpreted as meaning that, in
order to be entitled to refuse to grant the authorisation referred to
in Article 22(1)(c)(i) of that regulation on the ground that there is
a waiting time for hospital treatment, the competent institution is
required to establish that that time does not exceed the period
which is acceptable on the basis of an objective medical assessment
of the clinical needs of the person concerned in the light of all of
the factors characterising his medical condition at the time when
the request for authorisation is made or renewed, as the case may
be.

2. Article 49 EC applies where a person whose state of health neces-
sitates hospital treatment goes to another Member State and there
receives such treatment for consideration, there being no need to
determine whether the provision of hospital treatment within the
national health service with which that person is registered is in
itself a service within the meaning of the Treaty provisions on the
freedom to provide services.

Article 49 EC must be interpreted as meaning that it does not
preclude reimbursement of the cost of hospital treatment to be
provided in another Member State from being made subject to the
grant of prior authorisation by the competent institution.

A refusal to grant prior authorisation cannot be based merely on
the existence of waiting lists intended to enable the supply of
hospital care to be planned and managed on the basis of predeter-
mined general clinical priorities, without carrying out an objective
medical assessment of the patient's medical condition, the history
and probable course of his illness, the degree of pain he is in and/
or the nature of his disability at the time when the request for
authorisation was made or renewed.