Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
26 March 2026 (*)
( Reference for a preliminary ruling – State aid – Concept of ‘aid scheme’ – Further implementing measures – National legislation providing for the adoption of aid schemes aimed at enabling the purchase of immovable property – Implementation of that legislation by municipal regulations )
In Case C‑58/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Grondwettelijk Hof (Constitutional Court, Belgium), made by decision of 16 January 2025, received at the Court on 29 January 2025, in the proceedings
Fremoluc NV,
Association de Promotion des Droits Humains et des Minorités ASBL
v
Vlaamse Regering,
THE COURT (Eighth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Third Chamber, acting as Judge of the Eighth Chamber, and S. Rodin, Judge,
Advocate General: A. Biondi,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Fremoluc NV, by P. de Bandt, J. Dewispelaere and R. Van Heddeghem, advocaten,
–        the Vlaamse Regering, by E. Cloots, T. Roes and S. Sottiaux, advocaten,
–        the Netherlands Government, by J.M. Hoogveld and J. Langer, acting as Agents,
–        the European Commission, by A. Bouquet and L. Flynn, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 107(1) and Article 108(3) TFEU and of the principles of the protection of legitimate expectations and legal certainty.
2        The request has been made in proceedings between Fremoluc NV and the Association de Promotion des Droits Humains et des Minorités ASBL, on the one hand, and the Vlaamse Regering (Flemish Government, Belgium), on the other, concerning provisions of the Vlaams Gewest (Flemish Region, Belgium) allowing certain municipalities to apply specific conditions to the sale of plots of land or dwellings and providing for financial support from those municipalities for the benefit of the buyers.
Legal context
European Union law
3        Article 1(c) to (e) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) provides:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(c)      “new aid” means all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;
(d)      “aid scheme” means any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount;
(e)      “individual aid” means aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme’.
4        Article 2(1) of that regulation provides:
‘Save as otherwise provided in regulations made pursuant to Article 109 TFEU or to other relevant provisions thereof, any plans to grant new aid shall be notified to the [European] Commission in sufficient time by the Member State concerned. The Commission shall inform the Member State concerned without delay of the receipt of a notification.’
Belgian law
5        The decreet du Vlaamse Overheid over wonen in eigen streek (Decree of the Flemish Region on living in one’s own region) of 23 June 2023 (Belgisch Staatblad, 4 August 2023, p. 65489; ‘the WIES Decree’) provides, in Article 2 thereof:
‘In this decree, the following definitions shall apply:
…
6°      WIES municipality means a municipality included in the list established pursuant to the first paragraph of Article 3;
7°      WIES land means the particular classification of the designated land under point 3° of Article 4(3);
8°      WIES buyer means a person as referred to in Article 5;
9°      WIES dwelling means the special classification of the dwelling designated under the third subparagraph of Article 4(3).’
6        Article 3 of that decree provides:
‘Every six years and for the first time in 2023, the Flemish Government shall draw up by an order a list of municipalities falling within the scope of this decree. The Flemish Government shall draw up that list on the basis of the highest price of the immovable property.
By means of a municipal regulation, the municipalities included in the list referred to in the first paragraph may provide that the sale of immovable property referred to in Article 4(1) shall be subject to special conditions.’
7        Article 4 of that decree provides:
‘(1)      In municipalities, as referred to in Article 3, which have adopted a regulation pursuant to the second paragraph of Article 3, special conditions may apply to the sale of plots of land and dwellings which are the subject of one of the following projects:
1°      a project for which an environmental permit for the subdivision of plots of land is requested, creating at least five lots for the construction of dwellings;
2°      a project for which an environmental permit for town-planning is requested for group housing projects and apartment buildings which include at least five dwellings;
3°      a project which does not in itself meet the conditions referred to in points 1° or 2°, but which, in conjunction with the environmental permits granted during the last five years prior to the application, referred to in points 1° or 2°, for lot division, construction of group dwellings or apartment buildings concerning plots adjacent to the project site, actually meets the conditions referred to in points 1° or 2°. …
…
(3)      The municipal council of the WIES municipality shall provide in the municipal regulation that the municipal council may impose, on the projects referred to in paragraph 1 which are not excluded pursuant to paragraph 2, sale conditions as referred to in Article 5 of this decree, for:
1°      at least 40% of the number of dwellings to be developed or lots intended for the construction of dwellings, less the percentage for the provision of social housing or subsidised rental housing, for the plots of land owned by the entities referred to in Article I.3 of the Governance Decree of 7 December 2018;
2°      at least 20% and a maximum of 40% of the number of dwellings to be developed or lots intended for the construction of dwellings, less the percentage for the provision of social housing or subsidised rental housing, for plots of land owned by natural or legal persons other than those referred to in Article I.3 of the Governance Decree of 7 December 2018.
The municipal council of a WIES municipality shall lay down in the municipal regulation the criteria on the basis of which the municipal council may decide to impose sale conditions on the projects referred to in this article. Those criteria shall relate to the objectives of this decree and the financial capacity of the municipality.
In the municipal regulation, the municipal council of the WIES municipality shall determine the final percentage for which the sale conditions referred to in Article 5 are to be applied. The percentage set out in the regulation shall constitute the minimum percentage used by the WIES municipality to which the sale conditions referred to in Article 5 apply.
An applicant for an environmental permit, as referred to in paragraph 1, shall indicate in his or her application the plots of land or dwellings which are intended to meet the final percentage determined by the municipal council of the WIES municipality pursuant to the third subparagraph. The designated plots of land and dwellings are the WIES plots of land and the WIES dwellings.
For the purposes of fourth subparagraph, the municipal council of the WIES municipality may lay down additional conditions in the municipal regulation.
…’
8        Article 5 of that decree is worded as follows:
‘WIES plots of land and WIES dwellings may be sold only to persons who satisfy all of the following conditions:
1°      for a period of 10 years before the date of sale, the person shall have been registered in an uninterrupted manner for at least 5 years in the population registers … of the WIES municipality or in an adjacent municipality
within the Flemish Region;
2°      the person meets the conditions relating to immovable property and income which demonstrate a less comfortable financial situation, laid down by the Flemish Government;
3°      the person shall be registered in the population registers …
Spouses, legal or de facto cohabitants of the person to whom a WIES plot of land or a WIES dwelling is sold and who will co-occupy a WIES plot of land or a WIES dwelling shall also meet the conditions laid down in points 2° and 3° of the first subparagraph.
For the purposes of the first paragraph, the municipal council of the WIES municipality may lay down stricter conditions in the municipal regulation. The municipal council of the WIES municipality may, for example, restrict the application of point 1° of the first subparagraph to persons who, for a period of 10 years before the date of sale, have been registered in an uninterrupted manner for at least 5 years in the population register of their own municipality.’
9        Article 10(1) of the WIES Decree provides as follows:
‘If a WIES buyer purchases a WIES plot of land or a WIES dwelling pursuant to Article 5 and the municipal regulation in force, the WIES municipality shall provide a financial contribution for the benefit of the WIES buyer, based on the estimated price of the land shares acquired by the WIES buyer. That financial contribution shall amount to at least 50% of the estimated price of the land shares.
The WIES municipality shall pay the amount of the financial contribution referred to in the first subparagraph into a reserved account held by the competent official, as determined by the WIES buyer. The amount shall be released to the seller after the deed has been concluded and shall form part of the purchase price paid by the WIES buyer.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
10      On 23 June 2023, the Flemish Region adopted the WIES Decree. That decree authorises municipalities in which the price of immovable property
is particularly high to reserve, for nine months, the acquisition of certain plots of land or certain dwellings for buyers whose income is below defined thresholds and that are able to show links with the municipality concerned. It provides that municipalities which decide to apply such restrictions are to ensure, on behalf of the buyer, payment to the seller of a proportion of the price of the property.
11      By applications of 31 January and 1 February 2024, Fremoluc and the Association de Promotion des Droits Humains et des Minorités brought actions for annulment of the WIES Decree before the Grondwettelijk Hof (Constitutional Court, Belgium), which is the referring court.
12      In support of those actions, they rely, in essence, on pleas alleging infringement of several provisions of the Constitution belge (Belgian Constitution), read in conjunction, first, with provisions of EU law relating to the freedoms of movement and, second, with Article 107(1) and Article 108(3) TFEU.
13      In the first place, the referring court considers that the WIES Decree must be annulled in part as unconstitutional, in so far as it allows municipalities which have decided to use the scheme provided for therein to take account of the period during which a proposed buyer was registered in the population registers of a municipality adjacent to that municipality only when that municipality is located in Flanders (Belgium), and not when it is located in another region.
14      In the second place, that court considers that there can be no reasonable doubt that the WIES Decree is compatible with Articles 21, 45, 49, 56 and 63 TFEU and with Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).
15      In the third place, the referring court considers that it must determine whether the project which led to the adoption of the WIES Decree should have been notified to the Commission, in accordance with Article 108(3) TFEU, in so far as it seeks to establish a State aid scheme.
16      In that regard, it raises the question, first of all, whether the financial contribution provided for in Article 10 of that decree must be regarded as conferring an advantage on an undertaking, in particular by taking into account the criteria laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), as regards compensation for public service obligations.
17      That court wonders, next, whether the entry into force of the WIES Decree is sufficient, in the light of the Court’s case-law on Articles 107 and 108 TFEU, to entail the grant of a financial advantage or whether it must be held, on the contrary, that such a grant presupposes the prior adoption of further implementing measures. It observes, in that regard, that, in order for a municipality to be able to make the payment provided for by that decree, the municipal council must have adopted a municipal regulation for that purpose. That municipal regulation must, without exceeding the limits laid down by that decree, set the percentage of plots of land or dwellings to be reserved for a WIES buyer and determine the criteria on the basis of which sale conditions may be imposed on projects. That municipal regulation may also make the sale conditions for dwellings more stringent and provide that the municipal financial contribution will cover a greater proportion of the purchase price of the property concerned.
18      Lastly, that court considers that it must determine whether the de minimis thresholds relating to the notification of State aid are exceeded in the present case.
19      In the fourth place, in the event that the WIES Decree were to be regarded as seeking to establish a State aid scheme, the referring court is uncertain whether it is possible to maintain definitively the effects of that decree, in order to avoid a breach of the principles of the legitimate expectations of the individuals concerned or of legal certainty.
20      In those circumstances, the Grondwettelijk Hof (Constitutional Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must [Article] 107(1) and [Article] 108(3) [TFEU] be interpreted as meaning that a measure such as that set out in Article 10 of the [WIES Decree] constitutes new State aid which should have been notified to the [Commission]?
(2)      If the Grondwettelijk Hof (Constitutional Court …) were to conclude, on the basis of the answer to the first question referred for a preliminary ruling, that the aforementioned [WIES Decree] infringes the obligations arising from the provisions mentioned in that question, would it definitively be able to maintain the effects of [that decree] in order to respect the legitimate expectations of individuals who have acquired a piece of land or a dwelling pursuant to that [decree] and to avoid the legal uncertainty that the retroactive effect of the annulment of that [decree] could entail for those individuals, which could, in particular, adversely affect their housing situation?’
Consideration of the questions referred
The first question
21      By its first question, the referring court asks, in essence, whether Article 107(1) and Article 108(3) TFEU must be interpreted as meaning that national legislation authorising municipalities in which the price of immovable property is particularly high to introduce a scheme providing for the payment, to sellers of certain plots of land or of certain dwellings, of a fraction of the purchase price of the plots of land concerned, on behalf of a buyer meeting conditions relating to his or her social situation and to his or her link with the municipality in question, must be regarded as establishing a State aid scheme which must be notified to the Commission, where that legislation, first, leaves to each municipality the choice as to whether or not to introduce such a scheme and, second, confers on it discretion in determining the eligibility conditions of the projects and the fraction of the price of the plots of land concerned covered under that scheme.
22      Pursuant to Article 108(3) TFEU, the Commission is to be informed, in sufficient time to enable it to submit its comments, of any projects to grant or alter State aid.
23      Article 2(1) of Regulation 2015/1589 provides that, save as otherwise provided in regulations made pursuant to Article 109 TFEU or to other relevant provisions thereof, any plans to grant new aid are to be notified to the Commission in sufficient time by the Member State concerned.
24      Article 1(c) of that regulation defines the concept of ‘new aid’ as ‘all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid’.
25      In that regard, in the first place, Article 1(d) of that regulation states that an ‘aid scheme’ must be regarded as ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’.
26      In the present case, since a measure such as that at issue in the main proceedings concerns municipal financial contributions linked to specific projects, it is necessary to determine how such a measure must be classified solely in the light of the first limb of that definition, namely that relating to the provisions on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined in a general and abstract manner.
27      Under the first limb of that definition, classification of a State measure as an aid scheme presupposes that three cumulative conditions are met. First, aid may be granted individually to undertakings on the basis of an act. Second, no further implementing measure is required for that aid to be granted. Third, undertakings to which individual aid may be granted must be defined ‘in a general and abstract manner’ (judgments of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraph 60, and of 6 June 2024, Ryanair v Commission, C‑441/21 P, EU:C:2024:477, paragraph 106).
28      As regards the second of those conditions, relating to the absence of further implementing measures, it follows from the case-law of the Court of Justice that it is satisfied where undertakings are capable of benefiting from an advantage constituting individual aid solely because of the provision in question or of being granted such aid solely on the basis of that provision (see, to that effect, judgments of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 69; of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraph 106; and of 6 June 2024, Ryanair v Commission, C‑441/21 P, EU:C:2024:477, paragraphs 108 and 109).
29      In that regard, it must be recalled that the mere technical application of a provision providing for the grant of aid does not constitute a ‘further implementing measure’ within the meaning of Article 1(d) of Regulation 2015/1589. Such a ‘further implementing measure’ presupposes the exercise, by the authority responsible for applying the provision in question, of a discretion allowing it to influence the amount of the aid, its characteristics or the conditions under which that aid is granted (see, to that effect, judgment of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraph 105).
30      The question whether the grant of financial support, such as that at issue in the main proceedings, requires further implementing measures, within the meaning of the second condition referred to in paragraph 27 of the present judgment, must be assessed in the light of the fact that the request for a preliminary ruling concerns national legislation which defines a general framework within which certain municipalities may decide to introduce financial support schemes, without, however, that legislation itself directly establishing such schemes or defining all the detailed rules for their implementation.
31      More specifically, it is apparent from the order for reference, first, that only municipalities which have decided to adopt a municipal regulation laying down detailed rules for the application, in their territory, of the general framework provided for by the WIES Decree may support financially the acquisition of plots of land or dwellings situated on that territory, bearing in mind that that decree does not in any way oblige eligible municipalities to adopt such a regulation, thus leaving them the possibility of not implementing that decree.
32      Second, it is apparent from the information relating to Belgian law provided by the referring court that, when adopting a municipal regulation intended to implement the WIES Decree, the municipality concerned must specify various essential aspects of the rules governing, in its territory, the grant of financial support on that basis. In particular, it must fix, without exceeding the limits laid down by that decree, the percentage of plots of land and dwellings covered by the scheme authorised by that decree and the fraction of the price of the property concerned which will be covered. The municipality concerned may also add to the conditions already laid down in that decree additional conditions as regards the selection of both buyers and eligible immovable property.
33      In the light of the second condition referred to in paragraph 27 of the present judgment, such legislation must be regarded as conferring on the municipalities concerned a discretion relating both to the very principle of the application of a financial support scheme in their respective territories and to the essential elements of that scheme, in particular the conditions for the eligibility of immoveable property transactions and the extent of the financial support that may be granted.
34      It follows that such legislation does not allow the municipalities concerned to grant financial support solely on the basis of its provisions, but presupposes, on the contrary, the adoption by those municipalities of further implementing measures, within the meaning of Article 1(d) of Regulation 2015/1589. Accordingly, without it being necessary to examine whether such support meets all the conditions necessary to be classified as State aid within the meaning of Article 107(1) TFEU, it must be held that that legislation cannot be regarded as establishing an aid scheme which must be notified to the Commission in accordance with Article 108(3) TFEU and Article 2(1) of that regulation.
35      In the second place, Article 1(e) of that regulation defines ‘individual aid’ as ‘aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme’.
36      Given that it is apparent from the foregoing that legislation such as that at issue in the main proceedings allows the possible grant of financial support only after the adoption of further implementing measures, it cannot, in any event, be regarded as granting individual aid itself.
37      In the light of all of the foregoing, the answer to the first question is that Article 107(1) and Article 108(3) TFEU, read in conjunction with Article 1(c) to (e) and Article 2(1) of Regulation 2015/1589, must be interpreted as meaning that national legislation authorising municipalities in which the price of immovable property is particularly high to establish a scheme providing for the payment, to sellers of certain plots of land or of certain dwellings, of a fraction of the purchase price of the plots of land concerned, on behalf of a buyer meeting conditions relating to his or her social situation and his or her link with the municipality in question, must not be regarded as establishing a State aid scheme which must be notified to the Commission, where that legislation, first, allows each municipality the choice as to whether or not to introduce such a scheme and, second, confers on it discretion in determining the conditions of eligibility of the projects and the fraction of the price of the plots of land concerned which is covered by that scheme.
The second question
38      It is apparent from the order for reference that the second question is raised only if the first question is answered in the affirmative. Therefore, having regard to the negative answer given to the first question, there is no need to examine the second question.
Costs
39      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 107(1) and Article 108(3) TFEU, read in conjunction with Article 1(c) to (e) and Article 2(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU],
must be interpreted as meaning that national legislation authorising municipalities in which the price of immovable property is particularly high to establish a scheme providing for the payment, to sellers of certain plots of land or of certain dwellings, of a fraction of the purchase price of the plots of land concerned, on behalf of a buyer meeting conditions relating to his or her social situation and his or her link with the municipality in question, must not be regarded as establishing a State aid scheme which must be notified to the European Commission, where that legislation, first, allows each municipality the choice as to whether or not to introduce such a scheme and, second, confers on it discretion in determining the conditions of eligibility of the projects and the fraction of the price of the plots of land concerned which is covered by that scheme.
[Signatures]
*      Language of the case: Dutch.