Case C-104/08: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria), lodged on 6 March 2008 — Marc André Kurt v Bürgermeister der Stadt Wels
Date: 2008-03-06
Institutions: Court of Justice
Subjects: access to a profession, diploma, driving instruction, interpretation of the law, professional experience, vocational training

7.6.2008

EN

Official Journal of the European Union

C 142/13

Questions referred

Question referred

1. May the Member States ‘treat’ activities of States, regional
and local government authorities and other bodies governed
by public law which are exempt from tax under Article 13
of
the Sixth Council Directive of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
taxes (77/388/EEC) as activities in which they
turnover
engage as public authorities within the meaning of
the
fourth subparagraph of Article 4(5) of the Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes (Directive
77/388/EEC) (1) only where the Member States make express
legal provision to that effect?

2. Can ‘significant distortions of

competition’ within the
meaning of the fourth subparagraph in conjunction with the
second subparagraph of Article 4(5) of the Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes exist only
where treatment of a body governed by public law as a non-
taxable person would lead to significant distortions of
competition to the detriment of competing private taxable
persons or also where treatment of a body governed by
public law as a non-taxable person would lead to significant
distortions of competition to its detriment?

Is Article 12 EC to be interpreted as precluding the application
of a provision of national law which provides that an annual
disc in respect of a motor vehicle for the use of federal toll
roads is made available free of charge only to those persons
with a defined disability who are resident or ordinarily resident
in national territory?

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat des Landes Oberösterreich (Austria),
lodged on 6 March 2008 — Marc André Kurt v Bürger-
meister der Stadt Wels

(Case C-104/08)

(2008/C 142/21)

Language of the case: German

(1) OJ 1977 L 145, p. 1.

Referring court

Unabhängiger Verwaltungssenat des Landes Oberösterreich

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat
(Austria)
Landes
lodged on 6 March 2008 — Arthur Gottwald v
Bezirkshauptmannschaft Bregenz

Vorarlberg

des

(Case C-103/08)

(2008/C 142/20)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg

Parties to the main proceedings

Appellant: Arthur Gottwald

Respondent: Bezirkshauptmannschaft Bregenz

Parties to the main proceedings

Applicant: Marc André Kurt

Defendant: Bürgermeister der Stadt Wels

Questions referred

1. Is it compatible with the fundamental principles of

the
Treaty on the establishment of the European Community
and of the Treaty on Union (OJ 2006 C 321 E/1) and the
freedoms arising from those treaties for an EU citizen, who
in the light of his theoretical and practical education and
training and his relevant professional experience acquired
over many years and his qualifications is entitled, formally
and in practice,
to teach driving theory and practice to
learner drivers and most recently also to teach driving school
instructors and to establish, operate and manage a driving
school in a Member State, to be denied the right to manage
a driving school in his own Member State, by virtue of a
requirement to hold a diploma (‘Diplomzwang’) which is laid
down by statute and which cannot in practice be met?

2. Is the requirement to hold a diploma arising from Para-
graph 109(1)(e) KFG (Kraftfahrgesetz — Law on driving
Motor Vehicles) 1967 compatible in particular with the
values expressed by Articles 16 and 20 of the Charter on
Fundamental Rights (OJ 2007 C 303, p. 1) concerning the
freedom to pursue an economic or business activity, free
competition and the principle of equality of all citizens?

C 142/14

EN

Official Journal of the European Union

7.6.2008

3. Must Paragraph 109(2) KFG 1967 be interpreted as meaning
that another relevant form of education or training along
with the corresponding professional experience can also be
recognised as ‘another equivalent academic education’?

Reference for a preliminary ruling from the Landesgericht
lodged on 17 March 2008 — Land
Linz (Austria)
Oberösterreich v ČEZ, a.s.

(Case C-115/08)

(2008/C 142/22)

Language of the case: German

Referring court

Landesgericht Linz

Parties to the main proceedings

Applicant: Land Oberösterreich

Defendant: ČEZ, a.s.

Questions referred

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 compli-
ance with the laws of that State and the relevant provi-
sions 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 — to make changes to that installa-
tion 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 installa-
tion, 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
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 judg-
ment granting an injunction would be delivered in rela-
tion to an installation operating under an authorisation
granted by the domestic authorities?

the existing operating authorisation for

(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 authori-
sations for installations granted by the domestic authori-
ties 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 authorisa-
tion for an installation granted in the Member State in
which it is located like an authorisation for an installa-
tion granted by the domestic authorities if the authorisa-
tion granted in the Member State in which the installa-
tion is located is essentially equivalent, in legal terms, to
that of an authorisation granted by the domestic authori-
ties?

(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 injunc-
tion 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 inter-
pret 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 Com-
munity 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 neigh-
bouring Member State — which is enforceable in all
Member States pursuant to Regulation (EC) 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