Keywords
Summary

Keywords

1. Preliminary rulings — Jurisdiction of the Court — Limits — Manifestly irrelevant question — (Art. 234 EC)

2. EC Treaty — Property regimes — Principle of neutrality — Limits — Subject to the fundamental rules of the Treaty — National legislation regulating the acquisition of land — Compliance with the provisions on the free movement of capital — (EC Treaty, Arts 73b and 222 (now Art. 56 EC and Art. 295 EC))

3. Free movement of capital — Restrictions on the acquisition of immovable property — System of prior authorisation for the acquisition of building plots — Not permissible — Whether justifiable — No justification — Authorisation under the transitional measures of the 1994 Act of Accession concerning Austria — To be determined by the national court — (EC Treaty, Art. 73b (now Art. 56 EC); 1994 Act of Accession, Art. 70)

4. Preliminary rulings — Jurisdiction of the Court — Limits — Interpretation of the Agreement on the European Economic Area as regards its application in the States belonging to the European Free Trade Association — Excluded — (Art. 234 EC; EEA Agreement)

Summary

1. In the context of the cooperation between the Court of Justice and national courts instituted by Article 234 EC, the Court is, in principle, obliged to give a ruling when the questions submitted relate to the interpretation of Community law. Moreover, in principle it is for the national courts alone to determine, having regard to the particular features of each case, both the need to refer a question for a preliminary ruling and the relevance of such a question. It follows that, in the factual and legislative context which the national court is responsible for defining and the accuracy of which is not a matter for the Court to determine, the questions submitted by the national court enjoy a presumption of relevance. It is only in the exceptional case, where it is quite obvious that the interpretation of Community law sought bears no relation to the facts or the purpose of the main action, that the Court refrains from giving a ruling.

A situation where national law requires that a national be allowed to enjoy the same rights as those which nationals of other Member States would derive from Community law in the same situation does not correspond to the abovementioned exceptional case. On the contrary, in such a situation, the Court's reply may be useful to the national court.

see paras 29-33

2. Although the legal regime applicable to property ownership is a field of competence reserved for the Member States under Article 222 of the Treaty (now Article 295 EC), it is not exempted from the fundamental rules of the Treaty. Thus, national measures which regulate the acquisition of land for the purposes of prohibiting the establishment of secondary residences in certain areas, must comply with the provisions of the Treaty on the free movement of capital.

see para. 39

3. Article 73b(1) of the Treaty (now Article 56(1) EC) precludes an administrative authorisation procedure prior to acquisition of land, such as that established by the Vorarlberger Grundverkehrsgesetz (Vorarlberg Land Transfer Law), which requires any acquirer of unbuilt plots to show that the land will within a reasonable time be put to use in conformity with the land use plan or is required for public interest, charitable or cultural purposes.

Although restrictions on the establishment of secondary residences in a specific geographical area, which a Member State imposes in order to maintain, for town and country planning purposes, a permanent population and an economic activity independent of the tourist sector, may indeed be regarded as contributing to an objective in the public interest, a measure that requires the acquirer to produce proof of the future use of the land he is acquiring nevertheless allows the competent administrative authority considerable latitude which may be akin to a discretionary power that might possibly be applied in a discriminatory way. Moreover, a procedure simply involving a declaration may, if it is coupled with appropriate legal instruments, make it possible to eliminate the requirement of prior authorisation without undermining the effective pursuit of the aims of the public authority, so that that requirement cannot be regarded as a measure strictly necessary to achieve those aims.

It is for the national court to determine whether such a procedure is covered by the derogation established by Article 70 of the Act of Accession of 1994, which authorises Austria to maintain its existing legislation regarding secondary residences for five years from the date of accession. The rules in question, adopted after the date of accession, are covered by the derogation if they are in substance identical to the previous legislation or if they are limited to reducing or eliminating an obstacle to the exercise of Community rights and freedoms in the earlier legislation.

see paras 44, 46-47, 50-51, 53-57, operative part 1

4. Although the Court of Justice has, in principle, jurisdiction under Article 234 EC to give a preliminary ruling on the interpretation of the Agreement on the European Economic Area (EEA) where such a question is raised before a court or tribunal of one of the Member States, that jurisdiction applies solely with regard to the Communities. The Court therefore has no jurisdiction, pursuant to Article 234 EC, to rule on the interpretation of that agreement as regards its application in the States of the European Free Trade Association (EFTA).

Nor has such jurisdiction been conferred on the Court in the context of the EEA Agreement. Under Article 108(2) of that Agreement and Article 34 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, the EFTA Court has jurisdiction to rule on the interpretation of the EEA Agreement applicable in the States of EFTA. There is no provision in the EEA Agreement for parallel jurisdiction to be exercised by the Court of Justice of the European Communities.

The fact that the EFTA State in question subsequently became a Member State of the European Union, so that the question emanates from a court or tribunal of one of the Member States, cannot have the effect of conferring on the Court jurisdiction to interpret the EEA Agreement as regards its application to situations which do not come within the Community legal order. Thus, although the jurisdiction of the Court covers the interpretation of Community law, of which the EEA Agreement forms an integral part, as regards its application in the new Member States with effect from the date of their accession, the Court does not have jurisdiction to rule on the effects of that agreement within the national legal system of those States during the period prior to their accession.

see paras 65-71, operative part 2