Judgment — ECLI:EU:C:2010:74
Date: 2010-02-11
Language of the case: German
Court formation: Third Chamber
Subject matter: External relations;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. International agreements – EC-Switzerland Agreement on the free movement of persons – Freedom of establishment (EC-Switzerland Agreement on the free movement of persons, Annex I, Art. 25) 2. Free movement of capital – Restrictions on movements of capital to or from third countries – Restrictions on capital movements involving direct investment which existed on 31 December 1993 – Meaning (Art. 64(1) TFEU) 1. Article 25 of Annex I to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons, must be interpreted as meaning that the requirement of equal treatment with nationals in relation to the acquisition of immovable property applies only in relation to natural persons. The interpretation of the provisions of European Union law, including Treaty provisions, concerning the internal market, cannot be automatically applied by analogy to the interpretation of the Agreement and, in any case, legal persons are not, under the Agreement, granted a right of establishment. In that regard, the wording of the abovementioned Article 25 leaves no doubt that the categories of persons enjoying the right in question, covered by the provisions of that article, are by their nature categories of natural persons who exercise that right in the context of the freedom of movement. (see paras 34, 36-37, operative part 1) 2. Article 64(1) TFEU must be interpreted as meaning that the provisions of national law on the purchase of immovable property by foreign nationals, which require foreign nationals, within the meaning of that law, when acquiring immovable property situated in the territory concerned, to obtain authorisation in respect of that acquisition or else to produce a confirmation that the conditions laid down in that law for exemption from that requirement are satisfied, constitute a restriction on the free movement of capital which is permitted with regard to the Swiss Confederation as a third country. Both under the national legislation in force on 31 December 1993 and the legislation now in force, prior authorisation is required for the acquisition of immovable property in the Member States in question by a foreign national. In those circumstances, the obligation to obtain prior authorisation imposed on a foreign company must be regarded as permitted under Article 64(1) TFEU. In any case, the points of divergence between the legislation now in force and the earlier legislation, concerning the question which authority has power to confirm the existence of an exemption and the procedure to be followed in that respect, are limited to factors which are not relevant to the very essence of the applicable legislation, consisting in the fundamental requirement for foreign nationals to obtain authorisation in order to acquire immovable property, and in the obligation on them to produce proof that the conditions for an exemption are met. Thus, the legislation now in force is not based on a different approach from that of the earlier law and does not introduce any substantially new procedures. (see paras 46, 48-49, operative part 2)