Opinion of the Advocate General — ECLI:EU:C:2000:403
Date: 2000-07-13
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. Free movement of capital — Restrictions — Prohibition by a Member State of 
registration of a mortgage in the currency of another Member State — Not permissible 
(EC Treaty, Art. 73b (now Art. 56 EC)) 
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SUMMARY — CASE C-464/98 
2. Free movement of capital — Treaty provisions — Article 73b (now Article 56 
EC) — Application in Austria as at the date of its accession to the European 
Union — Effect of entry into force of the Treaty — Remedying of a mortgage 
registration which is null and void under national law — Not possible 
(EC Treaty, Art. 73b (now Art. 56 EC); Act of Accession of 1994) 
1. Article 73b of the Treaty (now Arti­
cle 56 EC) is to be construed as pre­
cluding the application of legislation of 
a Member State requiring a mortgage 
securing a debt payable in the currency 
of another Member State to be regis­
tered in the national currency. 
(see para. 19 and operative part 1) 
2. In accordance with Article 73a of the 
Treaty (repealed by the Treaty of 
Amsterdam), Article 73b (now Arti­
cle 56 EC) entered into force on 1 Jan­
uary 1994 in the States which then 
formed the European Union. Since the 
Republic of Austria did not accede to 
the Union until 1 January 1995, and in 
the absence of any contrary provision 
in the 1994 Act of Accession, it was 
only from that date that Article 73 b 
started to take effect in that Member 
State. 
Consequently, Article 73b of the Treaty 
is to be construed as meaning that it 
did not apply in Austria prior to the 
date of accession of the Republic of 
Austria to the European Union. It is 
incapable of remedying, with effect 
from the entry into force of the Treaty 
in Austria, a mortgage registration 
which, under the relevant national 
law, is vitiated from the outset by 
absolute and incurable nullity such as 
to render that registration non-existent. 
(see paras 21-22, 25 and 
operative part 2-3) 
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