Case C-115/08: Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 17 March 2008 — Land Oberösterreich v ČEZ, a.s.
Date: 2008-03-17
Institutions: Court of Justice
Subjects: EU law - national law, electrical energy, frontier region, interpretation of the law, nuisance, power plant, right of establishment, technical regulations

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

7.6.2008

EN

Official Journal of the European Union

C 142/15

— to stop operations at the installation, in a situation in
which that court, as a result of an interpretation of
national legal provisions given by the highest court in
is not allowed to take into account the
that country,
existing operating authorisation for
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 injunc-
tion, an authorisation for an installation granted by the
domestic authorities, with the effect that no judgment
granting an injunction would be delivered in relation to
an installation operating under an authorisation granted
by the domestic authorities?

3.

it

(b) Are the grounds on which freedom of establishment can
be restricted to be interpreted as meaning that
is
unlawful, in any event, to make a distinction under the
laws of a Member State between authorisations for instal-
lations 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 econom-
ical motive which is not recognised as worthy of protec-
tion in the context of the fundamental freedoms?

(c) Are the grounds justifying a restriction of the freedom of
establishment which are laid down in the EC Treaty and,
in particular, the principle of proportionality to be inter-
preted as meaning that a global distinction made under
the laws of a Member State between authorisations for
installations granted by the domestic authorities and
authorisations for installations granted by the authorities
of another Member State is per 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 justifying interfer-
ence with the freedom of establishment, are the courts of
a Member State under an obligation,
in any event, to
treat
the operating authorisation for an installation
granted in the Member State in which it is located like an
authorisation for an installation granted by the domestic
authorities if the authorisation granted in the Member
State in which the installation is located is essentially
equivalent,
in legal terms, to that of an authorisation
granted by the domestic authorities?

(e) For the purposes of considering the above questions, is it
also relevant in the context of the freedom of establish-
ment that the installation authorised in the Member State
in which it is located is a nuclear power plant,
in
another Member State in which an action for an injunc-
tion against that nuclear power plant is pending, opera-
tion of that type of installation is not permitted per se,
even though other nuclear facilities are operated there?

if,

(f) If the interpretation of the national provisions which is
described in Question 2(a) infringes Article 43 EC, are
the courts of the Member State before which such an

action for an injunction is pending under an obligation
to interpret 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?

of

the meaning

nationality within

(a) Does it constitute prohibited indirect discrimination on
grounds
of
Article 12 EC for the courts of a Member State to take
into account authorisations for installations granted by
the domestic authorities in the context of a private
action for an injunction brought against those installa-
tions, with the result that claims for cessation of opera-
tion of the installation or its modification are excluded,
but not to take into account in the context of such
actions for an injunction authorisations of installations
located in other Member States granted by the authorities
of those Member States?

(b) Does such discrimination fall within the scope of the
Treaty, since it affects the legal conditions under which
undertakings operating such installations may establish
themselves in an EU Member State as well as the legal
conditions under which such undertakings produce the
to other EU Member
good ‘electricity’ and deliver it
States, so that it is at least indirectly connected to the
realisation of the fundamental freedoms?

(c) Can such discrimination be

justified on objective
grounds, given that the relevant courts of the Member
State do not conduct an individual assessment taking
into consideration the facts underlying the authorisation
of the installation in the Member State in which it is
located? Would it not be consistent with the principle of
proportionality — at least if the condition is fulfilled that
the authorisation is essentially equivalent, from a legal
point of view, to an authorisation for an installation
granted by the domestic authorities — for the courts of
the other Member State to take into account the authori-
sation granted by the authorities in the Member State in
which the installation is located?

(d) If the interpretation of the national provisions which is
described in Question 3(a) infringes Article 12 EC, are
the courts of the Member State before which such an
action for an injunction is pending under an obligation
to interpret domestic law in a way conforming with
Community law, so that the term ‘officially authorised
installation’ can cover both operation authorisations
granted by the domestic authorities and those granted by
the authorities of another Member State?

4.

(a) Does the principle of

loyal cooperation laid down in
Article 10 EC with respect to the application of Com-
munity law also apply in respect of relationships among
Member States?

(b) Is it to be inferred from the principle of loyal coopera-
the Member States must not render other
tion that
Member States'
authority more
exercise of public
onerous or even impossible and does this apply, in par-
ticular, to decisions by Member States to concerning the
planning, construction and operation of nuclear installa-
tions within their territory?

C 142/16

EN

Official Journal of the European Union

7.6.2008

(c) If the interpretation of the national provisions which is
described in Question 4(a) infringes Article 10 EC, are
the courts of the Member State before which such an
action for an injunction is pending under an obligation
to interpret domestic law in a way conforming with
Community law, so that the term ‘officially authorised
installation’ can cover both operation authorisations
granted by the domestic authorities and those granted by
the authorities of another Member State?

a preliminary ruling

from the Hof
for
Reference
van Cassatie van België,
lodged on 25 March 2008 —
I. G.A.L.M. Snauwaert and Algemeen Expeditiebedrijf
Zeebrugge BVBA v Belgian State; II. Coldstar NV v Belgian
State; III. D.P.W. Vlaeminck v Belgian State; IV. J.P. Den
Haerynck v Belgian State; and V. A.E.M. De Wintere v
Belgian State

(Case C-124/08)

(2008/C 142/23)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellants:

I. 1. G.A.L.M. Snauwaert

2. Algemeen Expeditiebedrijf Zeebrugge BVBA, party incur-

ring civil liability

II. Coldstar NV, party incurring civil liability

III. D.P.W. Vlaeminck

IV. J.P. Den Haerynck

V. A.E.M. De Wintere

Respondent: Belgische Staat (Belgian State)

Questions referred

1. Should Article 221(1) of

the Community Customs Code
(CCC) (1) be construed as meaning that
the prescribed
communication of a customs debt to the person liable for
payment can be lawfully effected only after it has been
entered in the accounts or, in other words, that the commu-
nication of a customs debt to the person liable for payment
prescribed in Article 221(1) of the CCC should always be
preceded by its entry in the accounts if it is to be lawful and
to comply with Article 221(1)of the CCC?

1

by Article

of Regulation

2. Should Article 221(3) of
amendment

the CCC, as applicable before
its
(EC)
No 2700/2000 (2), be construed as meaning that the option
lawfully communicating the amount entered in the
of
accounts after the period of three years from the date on
which the customs debt was incurred,
if that debt is the
result of an act which is liable to give rise to criminal court
proceedings, is available to the customs authorities only in
respect of the person who is responsible for the act which is
liable to give rise to criminal court proceedings?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ 1992 L 302 p. 1).

(2) Regulation (EC) No 2700/2000 of the European Parliament and of
the Council of 16 November 2000 amending Regulation (EEC)
No 2913/92 (OJ 2000 L 311, p. 17).

Reference for a preliminary ruling from the Hof van
lodged on 25 March 2008 — G.C.
Cassatie van België,

Deschaumes v Belgian State

(Case C-125/08)

(2008/C 142/24)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: G. Deschaumes

Respondent: Belgian State

Question referred

Should Article 221(1) of
the Community Customs Code
(CCC) (1) be construed as meaning that the prescribed commu-
nication of a customs debt to the person liable for payment can
the customs debt has been
lawfully be effected only after
entered in the accounts or, in other words, that the communica-
tion of a customs debt to the person liable for payment, as
prescribed in Article 221(1) of
the CCC, must always be
preceded by its entry in the accounts if it is to be lawful and to
comply with Article 221(1)of the CCC?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ 1992 L 302, p. 1).