Judgment — ECLI:EU:C:2009:593
Date: 2009-10-01
Language of the case: Dutch
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Concepts: Free movement of capital and freedom of payments;Public undertakings;Jurisdiction of the Court of Justice
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Netherlands

Summary of the Judgment 1. Free movement of capital – Restrictions on property transactions (Art. 56 EC) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 86(2) EC and Art. 234 EC) 3. Preliminary rulings – Admissibility – Questions referred without sufficient information on the factual and legislative context (Art. 234 EC; Statute of the Court of Justice, Art. 23) 1. Article 56 EC must be interpreted as precluding national legislation which makes the exercise of cross-frontier activities of institutions approved in relation to housing matters subject to prior administrative authorisation, in so far as such legislation is not based on objective, non-discriminatory criteria which are known in advance and which are capable of adequately circumscribing the exercise by the national authorities of their discretion, a matter which falls to be determined by the national court. The requirement for those institutions to obtain prior authorisation from the competent Minister before investing in immovable property in Member States other than the State in which they have their seat constitutes a restriction on the free movement of capital. It is true that requirements related to public housing policy in a Member State and to the financing of that policy can constitute overriding reasons in the public interest and therefore justify the restriction at issue. Such considerations can only acquire greater significance in the light of certain features specific to the situation on the national market, such as a structural shortage of accommodation and a particularly high population density. In that regard, a prior authorisation scheme may indeed, in some cases, be necessary and proportionate to the goals pursued if the latter cannot be achieved by less restrictive measures, in particular by an appropriate system of declarations. A prior examination carried out by the competent administration might appear better able to ensure that the resources of the approved institutions are used to meet, as a priority, the accommodation needs of certain sections of the population in the Member State concerned, whilst a system of checks a posteriori could well occur at too late a stage, in particular when significant expenditure has already been made and is not easily recoverable. Nevertheless, if a scheme of prior administrative authorisation is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion. That is not the case where the national provisions concerned make prior authorisation by the competent Minister dependent on a single condition, namely that the project concerned be in the interests of public housing in the Member State concerned, and where, with regard to the question whether that condition is satisfied, a check is carried out on a case-by-case basis but that check is not set within a legislative framework and there are no other specific and objective criteria from which the institutions concerned can ascertain in advance the circumstances in which their application for authorisation will be granted and on the basis of which the courts, if an action is brought before them in respect of a refusal of authorisation, may exercise their powers of review to the full. (see paras 24, 30, 33-35, 37, 39, operative part) 2. In view of the division of responsibilities in the preliminary ruling procedure, the referring court alone can determine the subject-matter of the questions it proposes to refer to the Court but, in exceptional circumstances, the Court will examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. That is the case, in particular, where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose. Thus, the Court has no jurisdiction where it is obvious that the provision of Community law referred to the Court for interpretation is incapable of applying. In that regard, Article 86(2) EC is not applicable to a case which concerns neither the grant of special or exclusive rights to an institution approved in relation to housing matters nor the classification of the latter’s activities as services of general economic interest but concerns solely the lawfulness of a restriction to which that institution is subject, which takes the form of an obligation to follow a procedure for prior administrative authorisation. (see paras 42-43, 46-47) 3. The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. It is also important that the national court should set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In that connection, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings. The information provided in the decision making the reference serves not only to enable the Court to give useful answers, but also to enable the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that possibility is safeguarded, bearing in mind that, under that provision, only the decision making the reference is notified to the interested parties. In addition, the need for precision, in particular with regard to the factual and legislative context of the main proceedings, applies in particular in the area of competition, which is characterised by complex factual and legal situations. Accordingly, a question referred by a national court is inadmissible where it is based on the premiss that State aid might be granted, while neither the decision making the reference nor the observations of the parties to the main proceedings contain any elements which might serve to establish that such an advantage would in fact have been granted, the main proceedings being concerned not with the conditions on which such aid would have been or could be granted, but merely with an entirely separate and independent issue. (see paras 49-55)