CELEX: 62008CN0115
Language: en
Date: 2008-03-17 00:00:00
Title: 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.

7.6.2008   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 142/14
            
         Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 17 March 2008 — Land 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 compliance with the laws of that State and the relevant provisions 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 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 — 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 of that country, is not allowed to take into account the 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 injunction, 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?
                        
                     
                           (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 authorisations for installations granted by the domestic authorities 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 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 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 injunction 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 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?
                        
                     
         
               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 Community 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 neighbouring 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 — 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 that country, is not allowed to take into account the 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 injunction, 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?
                        
                     
                           (b)
                        
                        
                           Are the grounds on which freedom of establishment can be restricted 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 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 interpreted 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 interference 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 establishment 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 injunction against that 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 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?
                        
                     
         
               3.
            
            
               
                           (a)
                        
                        
                           Does it constitute prohibited indirect discrimination on grounds of nationality within the meaning 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 installations, with the result that claims for cessation of operation 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 good ‘electricity’ and deliver it to other EU Member 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 authorisation 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 Community law also apply in respect of relationships among Member States?
                        
                     
                           (b)
                        
                        
                           Is it to be inferred from the principle of loyal cooperation that the Member States must not render other Member States' exercise of public authority more onerous or even impossible and does this apply, in particular, to decisions by Member States to concerning the planning, construction and operation of nuclear installations within their territory?
                        
                     
                           (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?