Opinion of the Advocate General — ECLI:EU:C:2001:618
Date: 2001-11-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — JOINED CASES C-515/99, C-519/99 TO C-524/99 AND C-526/99 TO C-540/99 
Summary of the Judgment 
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) 
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) 
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REISCH AND OTHERS 
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. 
F i r s t , as is a p p a r e n t f rom 
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 nomen­
clature 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 pre­
clude 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 com­
mercial need. 
Whilst that measure restricts, by its 
very purpose, the free movement of 
capital, such a restriction may never­
theless be permitted if, as in the system 
in question, the national rules pursue, 
in a non-discriminatory way, an objec­
tive in the public interest and if they 
observe the principle of proportional­
ity, 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 geo­
graphical area, which a Member State 
imposes in order to maintain, for 
regional planning purposes, a perma­
nent population and an economic 
activity independent of the tourist 
sector, may be regarded as contributing 
to an objective in the public interest. 
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SUMMARY — JOINED CASES C-515/99, C-519/99 TO C-524/99 AND C-526/99 TO C-540/99 
That finding can only be strengthened 
by the other concerns which may 
underly those same measures, such as 
protection of the environment. More­
over, it is apparent from the provisions 
of the SGVG that they do not discrimi­
nate 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 notifi­
cation has the advantage, unlike super­
vision 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 admin­
istrative authorities may bring before 
the national court. In those circum­
stances, that aspect of the procedure 
instituted by the SGVG may be 
regarded as compatible with Commu­
nity law. 
By contrast, Articles 56 EC to 60 EC 
preclude a prior authorisation pro­
cedure such as that laid down by that 
scheme which requires prior authori­
sation 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 elimin­
ated 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) 
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