Keywords
Summary

Keywords

1. Preliminary rulings - Jurisdiction of the Court - Limits - Identification of the subject-matter of the question

(Art. 234 EC)

2. Preliminary rulings - Jurisdiction of the Court - Limits - Manifestly irrelevant question

(Art. 234 EC)

3. Freedom of establishment - Free movement of capital - Treaty provisions - Scope - National legislation regulating the acquisition of land - Covered

(Art. 44(2)(e) EC; Council Directive 88/361, Annex I)

4. Free movement of capital - Restrictions on the acquisition of immovable property - Scheme for prior notification of the acquisition of immovable property - Whether permissible - Scheme for prior authorisation of the acquisition of building plots - Not permissible

(Arts 56 EC to 60 EC)

Summary

1. Although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision.

( see para. 22 )

2. The fact that all the facts in a dispute are confined to a single Member State does not mean that there is no need to reply to the questions referred to the Court for a preliminary ruling in the course of that dispute. It is for the national courts alone to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they refer to the Court. A reference for a preliminary ruling from a national court may be rejected by the Court only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action.

( see paras 24-25 )

3. National legislation which regulates the acquisition of land for the purposes of prohibiting, in the interests of regional planning, the establishment of secondary residences in certain areas must comply with the provisions of the Treaty on the free movement of capital.

First, as is apparent from Article 44(2)(e) EC, the right to acquire, use or dispose of immovable property on the territory of another Member State, which is the corollary of the freedom of establishment generates capital movements when it is exercised.

Secondly, as is clear from the nomenclature of capital movements set out in Annex I to Directive 88/361 for the implementation of Article 67 of the Treaty (repealed by the Treaty of Amsterdam), capital movements include investments in real estate on the territory of a Member State by non-residents. That nomenclature still has the same indicative value for the purposes of defining the notion of capital movements.

( see paras 28-30 )

4. Articles 56 EC to 60 EC do not preclude a prior notification procedure such as that laid down by the scheme for the acquisition of land established by the Salzburger Grundverkehrsgesetz 1997 (Salzburg Land Transfer Law, the SGVG) which requires any person acquiring land to submit a declaration stating that he is an Austrian national, or a national of another Member State and that the land will be used as his principal residence or to meet a commercial need.

Whilst that measure restricts, by its very purpose, the free movement of capital, such a restriction may nevertheless be permitted if, as in the system in question, the national rules pursue, in a non-discriminatory way, an objective in the public interest and if they observe the principle of proportionality, that is if the same result could not be achieved by other less restrictive measures.

As regards the first requirement, restrictions on the establishment of secondary residences in a specific geographical area, which a Member State imposes in order to maintain, for regional planning purposes, a permanent population and an economic activity independent of the tourist sector, may be regarded as contributing to an objective in the public interest. That finding can only be strengthened by the other concerns which may underly those same measures, such as protection of the environment. Moreover, it is apparent from the provisions of the SGVG that they do not discriminate between Austrian acquirers of title and residents of other Member States who exercise the freedoms guaranteed by the Treaty.

As regards the second requirement, a requirement of declaration prior to the purchase of building plots, coupled with the possibility of penalties for breach of the agreed declaration, for regional planning purposes, does comply with Community law. The procedure laid down by the SGVG is essentially declaratory in principle. The minimum requirement of prior notification has the advantage, unlike supervision procedures which are applied only a posteriori, of providing the acquirer of title with an element of legal certainty. Furthermore, it may be thought that prior examination is better suited to preventing certain damage, which is reparable only with difficulty, caused by hastily completed building projects. Thus, the formality of prior notification may be regarded as a step which is additional to the criminal sanctions and the action for annulment of the sale which the administrative authorities may bring before the national court. In those circumstances, that aspect of the procedure instituted by the SGVG may be regarded as compatible with Community law.

By contrast, Articles 56 EC to 60 EC preclude a prior authorisation procedure such as that laid down by that scheme which requires prior authorisation for the acquisition of land where, on the basis of the declaration made, the competent authority does not issue confirmation.

Restrictions on the free movement of capital resulting from the requirement of prior authorisation may be eliminated by means of an appropriate notification system without thereby detracting from the effective pursuit of the aims of those rules.

( see paras 32-37, 40, operative part )