Opinion of the Advocate General — ECLI:EU:C:2003:61
Date: 2003-01-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Preliminary rulings — jurisdiction of the Court — Limits — Manifestly irrelevant 
question 
(Art. 234 EC) 
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SUMMARY — CASE C-300/01 
2. EC Treaty — Property regimes — Principle of neutrality — Limits — Subject to the 
fundamental rules of the Treaty — National legislation regulating the acquisition of 
land — Compliance with the provisions on the free movement of capital 
(EC Treaty, Arts 73b and 222 (now Art. 56 EC and Art. 295 EC)) 
3. Free movement of capital — Restrictions on the acquisition of immovable property — 
System of prior authorisation for the acquisition of building plots — Not permis­
sible — Whether justifiable — No justification — Authorisation under the transi­
tional measures of the 1994 Act of Accession concerning Austria — To be determined 
by the national court 
(EC Treaty, Art. 73b (now Art. 56 EC); 1994 Act of Accession, Art. 70) 
4. Preliminary rulings — jurisdiction of the Court — Limits — Interpretation of the 
Agreement on the European Economic Area as regards its application in the States 
belonging to the European Free Trade Association — Excluded 
(Art. 234 EC; EEA Agreement) 
1. In the context of the cooperation 
between the Court of Justice and 
na t iona l cour ts ins t i tu ted by 
Article 234 EC, the Court is, in prin­
ciple, obliged to give a ruling when the 
questions submitted relate to the inter­
pretation of Community law. More­
over, in principle it is for the national 
courts alone to determine, having 
regard to the particular features of 
each case, both the need to refer a 
question for a preliminary ruling and 
the relevance of such a question. It 
follows that, in the factual and legis­
lative context which the national court 
is responsible for defining and the 
accuracy of which is not a matter for 
the Court to determine, the questions 
submitted by the national court enjoy a 
presumption of relevance. It is only in 
the exceptional case, where it is quite 
obvious that the interpretation of 
Community law sought bears no 
relation to the facts or the purpose of 
the main action, that the Court refrains 
from giving a ruling. 
A situation where national law requires 
that a national be allowed to enjoy the 
same rights as those which nationals of 
other Member States would derive 
from Community law in the same 
situation does not correspond to the 
abovementioned exceptional case. On 
the contrary, in such a situation, the 
Court's reply may be useful to the 
national court. 
(see paras 29-33) 
2. Although the legal regime applicable to 
property ownership is a field of com-
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SALZMANN 
petence reserved for the Member States 
under Article 222 of the Treaty (now 
Article 295 EC), it is not exempted 
from the fundamental rules of the 
Treaty. Thus, national measures which 
regulate the acquisition of land for the 
purposes of prohibiting the establish­
ment of secondary residences in certain 
areas, must comply with the provisions 
of the Treaty on the free movement of 
capital. 
(see para. 39) 
3. Article 73b(1) of the Treaty (now 
Article 56(1) EC) precludes an adminis­
trative authorisation procedure prior to 
acquisition of land, such as that estab­
lished by the Vorarlberger Grundver­
kehrsgesetz (Vorarlberg Land Transfer 
Law), which requires any acquirer of 
unbuilt plots to show that the land will 
within a reasonable time be put to use 
in conformity with the land use plan or 
is required for public interest, chari­
table or cultural purposes. 
Although restrictions on the establish­
ment of secondary residences in a 
specific geographical area, which a 
Member State imposes in order to 
maintain, for town and country plan­
ning purposes, a permanent population 
and an economic activity independent 
of the tourist sector, may indeed be 
regarded as contributing to an objec­
tive in the public interest, a measure 
that requires the acquirer to produce 
proof of the future use of the land he is 
acquiring nevertheless allows the com­
petent administrative authority con­
siderable latitude which may be akin 
to a discretionary power that might 
possibly be applied in a discriminatory 
way. Moreover, a procedure simply 
involving a declaration may, if it is 
coupled with appropriate legal instru­
ments, make it possible to eliminate the 
requirement of prior authorisation 
without undermining the effective pur­
suit of the aims of the public authority, 
so that that requirement cannot be 
regarded as a measure strictly necessary 
to achieve those aims. 
It is for the national court to determine 
whether such a procedure is covered by 
the derogation established by Article 70 
of the Act of Accession of 1994, which 
authorises Austria to maintain its exist­
ing legislation regarding secondary 
residences for five years from the date 
of accession. The rules in question, 
adopted after the date of accession, are 
covered by the derogation if they are in 
substance identical to the previous 
legislation or if they are limited to 
reducing or eliminating an obstacle to 
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SUMMARY — CASE C-300/01 
the exercise of Community rights and 
freedoms in the earlier legislation. 
(see paras 44, 46-47, 
50-51, 53-57, operative part 1) 
4. Although the Court of Justice has, in 
principle, jurisdiction under Article 234 
EC to give a preliminary ruling on the 
interpretation of the Agreement on the 
European Economic Area (EEA) where 
such a question is raised before a court 
or tribunal of one of the Member 
States, that jurisdiction applies solely 
with regard to the Communities. The 
Court therefore has no jurisdiction, 
pursuant to Article 234 EC, to rule on 
the interpretation of that agreement as 
regards its application in the States of 
the European Free Trade Association 
(EFTA). 
Nor has such jurisdiction been con­
ferred on the Court in the context of 
the EEA A g r e e m e n t . Unde r 
Article 108(2) of that Agreement and 
Article 34 of the Agreement between 
the EFTA States on the establishment 
of a Surveillance Authority and a Court 
of Justice, the EFTA Court has juris­
diction to rule on the interpretation of 
the EEA Agreement applicable in the 
States of EFTA. There is no provision 
in the EEA Agreement for parallel 
jurisdiction to be exercised by the 
Court of Justice of the European Com­
munities. 
The fact that the EFTA State in ques­
tion subsequently became a Member 
State of the European Union, so that 
the question emanates from a court or 
tribunal of one of the Member States, 
cannot have the effect of conferring on 
the Court jurisdiction to interpret the 
EEA Agreement as regards its appli­
cation to situations which do not come 
within the Community legal order. 
Thus, although the jurisdiction of the 
Court covers the interpretation of 
Community law, of which the EEA 
Agreement forms an integral part, as 
regards its application in the new 
Member States with effect from the 
date of their accession, the Court does 
not have jurisdiction to rule on the 
effects of that agreement within the 
national legal system of those States 
during the period prior to their acces­
sion. 
(see paras 65-71, operative part 2) 
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