Ruling of [27 October 2009] of the Court (Grand Chamber) in Case C-115/08 Land Oberösterreich v ČEZ as  [2009] ECR  I-10265

 Referred by Landesgericht Linz – Austria

FACTS:

In Austria an owner of land may prohibit his neighbour from causing nuisance, emanating from the latter’s land, in so far as it exceeds normal local levels and significantly interferes with the usual use of the land. However, if the interference is caused, in excess of that level, by an officially authorised installation on the neighbouring land, the landowner is entitled only to bring court proceedings for compensation for the damage caused.

The Land Oberösterreich (Province of Upper Austria) is the owner of land used for agriculture and agricultural trials, on which there is an agricultural college. The land is situated about 60 km from the Temelín nuclear power plant, which itself is situated in the Czech Republic and operated by the Czech energy company, ČEZ. The construction and operation of that nuclear power plant were authorised by the Czech authorities in 1985 and it has been operating at full capacity since 2003.

According to the Land Oberösterreich, the radioactivity generated by the normal functioning of the Temelín nuclear power plant or the risk of contamination caused by the operation and potential malfunction of the plant cause a lasting interference with the normal use of its land.

For that reason, the Land Oberösterreich and other private owners applied to the Landesgericht Linz (Regional Court, Linz), seeking an order that ČEZ put an end to the actual or potential nuisance relating to the ionising radiation potentially emanating from the Temelín nuclear power plant and adapt it according to the prevailing technical standards or close it if the required adaptations cannot be made.

The Austrian court found that, in Austria, there is discrimination between industrial installations which have been granted official authorisation by the national authorities and those which have been granted authorisation by the authorities of another Member State in that authorisations granted by the latter are not taken into account in an action for cessation of nuisance brought against their owner.

ISSUES/QUESTIONS:

Can an industrial activity consisting in the operation of a nuclear power plant may be pursued and, if so, what are the technical conditions which may be imposed on such a power plant because of an actual or potential nuisance allegedly caused to land situated in another Member State due to its possible exposure to ionising radiation originating from that power plant[1]?/ Does the principle of prohibition on grounds of nationality precludes, within the scope of the EAEC Treaty, the application of the legislation of a Member State such as that in the main proceedings?

ANSWER of the COURT:

The Austrian courts, when hearing an action for cessation of nuisance between neighbouring landowners and the Temelín nuclear power plant, must take account of the operating authorisation granted by the Czech authorities, as that authorisation is part of the Community system aimed at ensuring protection of the population against nuclear hazards.

REASONING of the COURT:

The Court finds, first of all, that the industrial activity pursued at the Temelín nuclear power plant falls within the scope of application of the EAEC Treaty.[2]

Next, the Court observes that undertakings which operate an installation situated in a Member State are usually undertakings established under the law thereof and that their situation is comparable to that of a national of that Member State. Consequently, a difference in treatment which works to the detriment of installations which have received official authorisation in a Member State other than Austria must be regarded as a difference in treatment on grounds of nationality. Moreover, the principle of prohibition of any discrimination on grounds of nationality is a general principle of Community law which is also applicable under the EAEC Treaty.

The Court notes that under the EAEC Treaty the Community possesses legislative competence to establish, for the purpose of health protection, an authorisation system which must be applied by the Member States. The granting of official authorisations for the construction and operation of nuclear installations, in their various aspects relating to health protection against the dangers of ionising radiations for the general public, therefore comes within the scope of application of the EAEC Treaty. It follows that a difference in treatment which works to the detriment of nuclear installations which have received official authorisation in another Member State must be examined in the light of that treaty.

Next, the Court notes that aims of a purely economic nature, such as protection of the interests of domestic economic operators, cannot justify discrimination on grounds of nationality.

The Court observes, in particular, that basic standards for health protection for the general public against the dangers arising from ionising radiations have been adopted at Community level, compliance with which at Temelín was checked by the Commission following the accession of the Czech Republic. Moreover, the questions relating to safety at that power plant were evaluated by the Commission and were the subject-matter of recommendations and monitoring by the Commission, with a view to bringing it up to a level of nuclear safety comparable to that prevailing in the European Union. Moreover, member States cannot enact a domestic provision which prevents an action for an injunction to prevent an actual or potential nuisance from being brought when the alleged nuisance is originated from an officially authorized industrial installation[3].

The Court further states that, in the event of malfunction of the protection system introduced under the EAEC Treaty, the Member States have a number of remedies at their disposal for obtaining the corrections necessary in the circumstances.

The Court dealt extensively with the discrimination matter, founding that even if the EAEC Treaty does not contain any express provision which corresponds to Article 12 TEC, now Article 18 TFEU, the principle of non-discrimination is part of the EU legal order and the rule on the ”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)”. Making reference to its previous case-law, the Court reiterated that the principle of non- discrimination is part of the EU legal order and the rule on the ”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)”. Making reference to its previous case-law, the Court reiterated that the principle of non-discrimination, as enshrined by Article 12 TEC, now Article 18 TFEU, is an expression of the general principle of equality, which itself is one of the fundamental principles of EU law[4].

Comments:

It is very interesting to note the difference with which the Case was approached by the Advocate General Maduro in comparison with the Court. In this respect, AG suggested in his Opinion, after dealing extensively with the interpretation of Article 43 TEC, now Article 49 TFEU, that the Court should not rule on the interpretation of provisions related to discrimination and quantitative restrictions. He considered that the main issue in the Case brought before the EU Court, consists in the applicability of freedom of establishment, as enshrined by the Treaty. As a consequence he “granted”, it seems, more discretion to the Member State, Austria, by stating that “The administrative authorisations of other Member States may be refused recognition if such a refusal is non-discriminatory in nature and is properly justified on grounds of public policy, public security or public health and provided that proper account is taken of compliance with relevant Community rules and the interests of all affected parties”.

In respect to the rules that form the principle of equal treatment, which state that comparable situations must not be treated differently and that different situations must not be treated in the same way,  the Court made their appliance to the issue, by reminding that when the 2004 EU enlargement took place and ten more States acceded , the questions relating to safety at the power plants in those States, including the Temelín nuclear power plant, were evaluated by the Commission, which led to the drafting of Community recommendations for improvements to those reactors in order to bring them up to a level of safety comparable to that prevailing in the European Union for comparable reactors, the implementation of which has been monitored by the Commission and the Council. It is well known from the EU case law, as regards the principle of equal treatment which governs the principle of non-discrimination, that comparable situations must not be treated differently and that different situations must not be treated in the same way (see, inter alia , Case C-354/95 National Farmers’ Union and Others [1997] ECR I-4559, paragraph 61). Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued (see, inter alia , D’Hoop , [2002], ECR I-06191 , paragraph 36). The Court reiterated that the EU institutions, the Commission and Council, complied and promoted this fundamental value and as in a mutually binding contract, it is for the Member States to comply with their obligations in the same manner. As a result, a Member State cannot enact a domestic provision which prevents an action for an injunction to prevent an actual or potential nuisance from being brought when the alleged nuisance is originated from an officially authorized industrial installation. Moreover, that Member State cannot, in principle, exclude from the scope of application of such a provision authorisations granted in respect of nuclear installations situated in other Member States by maintaining that such an exclusion is justified on grounds of protecting life, public health, the environment or property rights. The natural consequence, was found to be that such an exclusion cannot be regarded as necessary for the purposes of protection and therefore cannot be held to satisfy the requirement of proportionality.

One can conclude from this ruling, that the principle of equal treatment requires mutual identy as regards the rights, but also the obligations, amongst Member States.