Keywords
Summary

Keywords

1. Free movement of capital Restrictions Prohibition by a Member State of registration of a mortgage in the currency of another Member State Not permissible

(EC Treaty, Art. 73b (now Art. 56 EC))

2. Free movement of capital Treaty provisions Article 73b (now Article 56 EC) Application in Austria as at the date of its accession to the European Union Effect of entry into force of the Treaty Remedying of a mortgage registration which is null and void under national law Not possible

(EC Treaty, Art. 73b (now Art. 56 EC); Act of Accession of 1994)

Summary

1. Article 73b of the Treaty (now Article 56 EC) is to be construed as precluding the application of legislation of a Member State requiring a mortgage securing a debt payable in the currency of another Member State to be registered in the national currency.

( see para. 19 and operative part 1 )

2. In accordance with Article 73a of the Treaty (repealed by the Treaty of Amsterdam), Article 73b (now Article 56 EC) entered into force on 1 January 1994 in the States which then formed the European Union. Since the Republic of Austria did not accede to the Union until 1 January 1995, and in the absence of any contrary provision in the 1994 Act of Accession, it was only from that date that Article 73b started to take effect in that Member State.

Consequently, Article 73b of the Treaty is to be construed as meaning that it did not apply in Austria prior to the date of accession of the Republic of Austria to the European Union. It is incapable of remedying, with effect from the entry into force of the Treaty in Austria, a mortgage registration which, under the relevant national law, is vitiated from the outset by absolute and incurable nullity such as to render that registration non-existent.

( see paras 21-22, 25 and operative part 2-3 )