Brussels, 28/10/2009 (Agence Europe) - In a ruling issued on Tuesday 27 October 2009, the European Court of Justice ruled that the Austrian courts cannot force a nuclear power plant in the Czech Republic to close down because such a ruling would not be possible if the plant were located in Austria. In addition, complaints about the use of nuclear energy come under the power of the European Community (Case C-115/08).
A case was taken to a court in Austria for cessation of nuisance between a farming college in Austria and the Temelin nuclear power plant, some 60 km away in the Czech Republic. The Court of Justice rules that the Austrian court cannot ban the power plant from operating and any penalties would have to be limited to repair of damage that has actually occurred. This restriction applies in this case because this is what would apply under Austrian law to any plant which has been grated prior authorisation to operate.
The Province of Upper Austria believes that the standard radioactivity of the Temelin plant and the dangers of contamination and malfunction at the plant are damaging to its agricultural college near the Czech border and therefore took a case against the nuclear plant at the regional tribunal, Landesgericht, in Linz. The Austrian court asked the Court of Justice whether it can demand the cessation of the bothersome activity. Under Austrian law, landowners can have bothersome behaviour by a neighbour banned. In this case, however, the neighbour has been authorised by the Czech authorities, so the landowner cannot have the activity stopped and has to put up with simply demanding repair of damages.
The Temelín plant has authorisation to operate, granted by the Czech rather than the Austrian authorities. Any discrimination in the way such cases are dealt with in Austria and the Czech Republic could well infringe EU law on equal treatment, explains the Court of Justice ruling in response to the query from the Linz court. The Austrian court cannot demand that the Czech nuclear plant be closed down, any more than it could have done for a power plant in Austria.
The Court of Justice adds that the plant's operations fall under the competence of the EU under the European Atomic Energy Community (EAEC) Treaty and it is therefore the EU that has to assess the potential danger of the Temelin plant (which it did before the Czech Republic joined the EU in 2004, and which it continues to do through intensive monitoring by the Commission). The Court of Justice explains in its ruling that under the EAEC Treaty, the 'Member States have a number of remedies at their disposal for obtaining the corrections necessary in the circumstances'. (C.D. trans fl)