Opinion of the Advocate General — ECLI:EU:C:2005:583
Date: 2005-09-29
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – Conformity of the decision to refer with the rules of national law governing the organisation of the courts and their procedure, including those on international jurisdiction – Not a matter for the Court to determine (Art. 234 EC; Convention of 27 September 1968) 2. Free movement of capital – Restrictions on the acquisition of immovable property – Scheme for notification of the acquisition of immovable property – Retroactive invalidity of the transaction if declaration is submitted late – Not permissible – Justification – None – Breach of the principle of proportionality (Art. 56(1) EC) 1. Under the procedure laid down in Article 234 EC, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure. Nor is it for the Court to examine whether the matter was brought before the national court in compliance with the rules on jurisdiction laid down by the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, unless the conditions for applying those rules are the actual subject of the reference for a preliminary ruling. The Court must abide by the decision of a court of a Member State requesting a preliminary ruling in so far as that decision has not been overturned in any appeal procedures provided for by national law. (see paras 30-32) 2. Article 56(1) EC preludes the application of national legislation on the acquisition of real property making the effectiveness of transactions subject to the submission of a declaration by the purchaser under which the mere fact that the declaration of acquisition is submitted after the due date results in the retroactive invalidity of the property transaction concerned. It is true that a prior declaration system, when coupled with appropriate legal instruments, may in fact constitute a measure proportionate to the public interest objective pursued designed to maintain, with a view to town and country planning, a permanent population and economic activity independent of the tourist sector by introducing restrictions on the establishment of second homes in a particular geographical area. However, the retroactive annulment of the property transaction is not a proportionate penalty where it is imposed automatically, following the mere passing of the time-limit for submitting the requisite declaration, irrespective of the reasons for its being late, and for no reason deriving from infringement of the applicable substantive rules, radically calls into question an agreement expressing the intentions of the parties and cannot therefore reflect the requirements of legal certainty, which are particularly important in relation to property acquisitions. (see paras 46, 52-56, 62, operative part)