Land Oberösterreich v ČEZ as.
Date: 2009-10-27
57. It must be borne in mind, however, that it is not for the Court to rule on the interpretation of national provisions, as such an interpretation falls within the exclusive jurisdiction of the national courts. Thus, the Court, when a question is referred to it by a national court, must base itself on the interpretation of national law as described to it by that court (see, to that effect, inter alia, Case C‑360/06 Heinrich Bauer Verlag  [2008] ECR I-7333, paragraph 15 and case-law cited).
The questions referred for a preliminary ruling
Preliminary considerations
81. The fact that the national court has, formally speaking, worded the question referred for a preliminary ruling with reference to certain provisions of Community law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions (see, inter alia, Case C‑258/04 Ioannidis  [2005] ECR I‑8275, paragraph 20 and case-law cited, and Case C‑152/03 Ritter-Coulais  [2006] ECR I‑1711, paragraph 29 and case-law cited). It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of Community law which require interpretation, having regard to the subject-matter of the dispute (see, inter alia, Case 35/85 Tissier  [1986] ECR 1207, paragraph 9).
83. Such industrial activity, by reason of its very purpose and to a large degree, falls within the scope of application of the EAEC Treaty and it is common ground that that treaty contains a set of rules relating precisely to the protection of populations and the environment against ionising radiations.
84. Moreover, the Court, under Articles 234 EC and 150 EA, has identical jurisdiction for the purpose of interpreting the relevant provisions of the EC and EAEC Treaties. Thus the fact that the national court, formally speaking, referred questions to the Court pursuant to Article 234 EC concerning the interpretation of provisions of the EC Treaty does not prevent this Court from providing to the national court all the elements which may be of assistance in adjudicating on the case pending before it, including when they come under the EAEC Treaty and involve the Court ruling by virtue of its jurisdiction under Article 150 EA (see, to that effect, Case 44/84 Hurd  [1986] ECR 29, paragraphs 1 and 14).
88. Although the EAEC Treaty does not contain any explicit provision which corresponds to that article of the EC Treaty, the fact remains that, as the Court pointed out very early on, the principle laid down in Article 12 EC forms part of the ‘principles’ of the Community and the rule on equal treatment with nationals is one of the fundamental legal provisions of the Community (see, inter alia, Case 2/74 Reyners  [1974] ECR 631, paragraphs 15 and 24).
89. Article 12 EC, which prohibits any discrimination on grounds of nationality, is a specific expression of the general principle of equality, which itself is one of the fundamental principles of Community law (see, to that effect, inter alia, Case 810/79 Überschär  [1980] ECR 2747, paragraph 16, and Case C‑224/00 Commission  v Italy  [2002] ECR I‑2965, paragraph 14).
92. First of all, it is settled case-law that the rules regarding equality of treatment between nationals and non-nationals forbid not only overt discrimination by reason of nationality or, in the case of a company, its seat, but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see, inter alia, Case C-330/91 Commerzbank  [1993] ECR I-4017, paragraph 14, and Commission  v Italy , paragraph 15).
99. Although it is true that the EAEC Treaty does not contain a title relating to nuclear energy production installations, the fact remains that Title II of that Treaty, entitled ‘Provisions for the encouragement of progress in the field of nuclear energy’, includes a Chapter 3, entitled ‘Health and safety’, which is intended to provide for the protection of public health in the nuclear sector (see, inter alia, Case C‑62/88 Greece  v Council  [1990] ECR I‑1527, paragraph 17).
100. The Court has held on a number of occasions that the provisions of said Chapter 3 are to be interpreted broadly in order to give them practical effect (see, inter alia, Case C‑29/99 Commission  v Council  [2002] ECR I-11221, paragraph 78). Thus, having noted that Chapter 3 implements Article 2(b) EA, which requires the Community to ‘establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied’, the Court has held inter alia that it is apparent that such protection cannot be achieved without controlling the sources of harmful radiation (see Commission  v Council , paragraph 76).
101. In paragraph 72 of Commission  v Council , the Court, which was asked to rule on the scope of Community competence for the purposes of concluding the Convention on Nuclear Safety, held that the Community possesses competences, shared with the Member States, to take, pursuant to Article 15 of that convention, the appropriate steps to ensure that in all operational states radiation exposure to workers and the public caused by a nuclear installation be kept as low as reasonably achievable and that no individual be exposed to radiation doses which exceed prescribed national dose limits.
103. In particular, it held, with respect to Article 7 of the Convention on Nuclear Safety, that, even though the EAEC Treaty does not grant the Community competence to authorise the construction or operation of nuclear installations, under Articles 30 EA to 32 EA the Community possesses legislative competence to establish, for the purpose of health protection, an authorisation system which must be applied by the Member States. Such a legislative act constitutes a measure supplementing the basic standards referred to in Article 30 EA ( Commission  v Council , paragraphs 88 and 89).
104. When interpreting Article 37 EA, which is a provision which must be applied in order to prevent the risk of radioactive contamination of water, soil or airspace of another Member State, the Court has held inter alia that that article must be interpreted as meaning that the Commission must be provided with general data relating to any plan for the disposal of radioactive waste before such disposal is authorised by the competent authorities of the Member State concerned. The Court noted in that regard the very great importance of the guidelines that the Commission can give, after consulting the group of experts, to that Member State, which the Member State must be able to examine in detail in circumstances such that the Commission’s suggestions may be taken into account before the authorisation is issued (Case 187/87 Land de Sarre and Others  [1988] ECR 5013, paragraphs 12 to 16, and Case C‑61/03 Commission  v United Kingdom  [2005] ECR I-2477, paragraph 39).
108. In accordance with the Court’s case-law, the finding in paragraph 107 of this judgment is not by itself sufficient to substantiate a conclusion that the national provisions are incompatible with the prohibition of discrimination on grounds of nationality under the EAEC Treaty. It is also necessary to ascertain whether the failure to take account of the official authorisations granted in respect of nuclear installations situated in Member States other than the Republic of Austria, pursuant to Paragraph 364a of the ABGB, and the application of Paragraph 364(2) of the ABGB alone in respect of those installations, may not be justified by objective considerations unrelated to nationality and, if so, whether such a difference in treatment is proportionate to the legitimately pursued objective (see, inter alia, to that effect, regarding Article 12 EC, Commission  v Italy , paragraph 20; Case C‑164/07 Wood  [2008] ECR I‑4143, paragraph 13; and Case C‑524/06 Huber  [2008] ECR I‑0000, paragraph 75).
109. As regards, first, the query contained in questions 1(b) and 2(b), it must be noted that the willingness of the Austrian legislature to take account of the interests of domestic economic operators, to the exclusion of those of economic operators established in other Member States, cannot be accepted as justification for the difference in treatment resulting from the legislation at issue in the main proceedings. Just as they cannot justify a barrier to the fundamental principles of free movement of goods or the freedom to provide services (see, inter alia, Case C‑120/95 Decker  [1998] ECR I‑1831, paragraph 39, and Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraph 41), aims of a purely economic nature cannot justify discrimination on grounds of nationality within the scope of application of the EAEC Treaty.
112. These aspects are elaborated on in Articles 30 EA to 39 EA, which make up Chapter 3 of Title II of the EAEC Treaty, and are, as the Court has noted earlier, intended to ensure the consistent and effective protection of the health of the general public against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed to such radiations (Case C‑70/88 Parliament  v Council  [1991] ECR I‑4529, paragraphs 13 and 14).
114. Under the first paragraph of Article 33 EA, each Member State is required to lay down the appropriate provisions, whether by legislation, regulation or administrative action, to ensure compliance with the basic standards which have been established by the Community. Under the second paragraph of Article 33 EA, however, the Commission may make appropriate recommendations for harmonising the provisions applicable in that field in the Member States. As observed by the Court, such competence to make recommendations may be exercised, inter alia, with respect to those aspects relating to the design and construction as well as the operation of a nuclear installation which enable compliance with the basic standards to be ensured. The Member States are, furthermore, required to assist in drawing up those recommendations through the communications referred to in the third paragraph of Article 33 EA ( Commission  v Council , paragraph 105).
115. Those basic standards, which must be governed inter alia by the principle of optimisation of protection (see, to that effect, Case C‑376/90 Commission  v Belgium  [1992] ECR I‑6153, paragraph 27), and which have been amended on various occasions in order to take account of developments in scientific knowledge about radiation protection, are fixed by Directive 96/29.
118. The provisions of Chapter 3 of Title II of the EAEC Treaty form a coherent whole conferring on the Commission powers of some considerable scope in order to protect the population and the environment against the risks of nuclear contamination (see Land de Sarre and Others , paragraph 11, and Commission  v Council , paragraph 79).
119. That, in particular, is the purpose of Articles 35 EA to 38 EA which, as the Court has observed on previous occasions, confer substantial powers on the Commission ( Commission  v United Kingdom , paragraph 35).
124. The Court has previously emphasised the importance of the role played in this area by the Commission, owing to its unique overview of developments in the nuclear power industry throughout the territory of the Community ( Land de Sarre and Others , paragraphs 12 and 13).
138. In that regard, it must be borne in mind that, according to settled case-law which has developed in relation to Article 10 EC, which is also applicable in respect of Article 192 EA, the duty imposed on Member States by those provisions to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of Community law is incumbent on all the authorities in the Member States, including, for matters within their jurisdiction, the courts. When applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law. Where application in accordance with those requirements is not possible, the national court must fully apply Community law and protect the rights conferred thereby on individuals, if necessary disapplying any provision if its application would, in the circumstances of the case, lead to a result contrary to Community law (see, inter alia, Case 157/86 Murphy and Others  [1988] ECR 673, paragraph 11, and Case C‑262/97 Engelbrecht  [2000] ECR I‑7321, paragraphs 38 to 40).