OPINION OF ADVOCATE GENERAL

JACOBS





delivered on 29 September 2005 ( )

Case C-213/04

Ewald Burtscher

v

Josef Stauderer





1. Legislation of the Austrian regions provides for the supervision by public authorities of acquisitions of land. In certain circumstances, it restricts acquistions for establishing a secondary residence.

2. In this case the Oberster Gerichtshof (Supreme Court) of Austria asks the Court whether Article 56 EC on the free movement of capital precludes legislation of the region of Vorarlberg regulating land acquisition, pursuant to which failure to make a prescribed declaration by the due date results in retroactive annulment of the transaction.





Relevant Community law

3. Article 56(1) EC provides:

‘Within the framework of the provisions set out in this chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.’

4. Article 6(4) of Directive 88/361 ( ) provides:

‘Existing national legislation regulating purchases of secondary residences may be upheld until the Council adopts further provisions in this area in accordance with Article 69 of the Treaty. This provision does not affect the applicability of other provisions of Community law.’ Article 69 was repealed by the Treaty of Amsterdam. ( ) At the time of its repeal, no further provisions in this area had been adopted by the Council.





Relevant national law

5. The Vorarlberger Grundverkehrsgesetz (Vorarlberg Land Transfer Law, ‘the VGVG’) regulates the acquisition of land in Vorarlberg.

6. Under that law as it stood in 1969 ( ) (‘the VGVG 1969’), authorisation by the competent land transfer authority for the acquisition by non-Austrian nationals of property was required.

7. A subsequent version of that law, ‘the VGVG 1993’, ( ) required such authorisation for the acquisition of built-on land in general.

8. According to Paragraph 7(2) of the VGVG 1993, acquisition of built-on land for use other than for holiday purposes did not require authorisation if the purchaser made a written declaration including inter alia a statement that the acquisition was not for holiday purposes. Paragraph 2(6) defined an acquisition of land for holiday purposes as one intended for the establishment or use of holiday accommodation, either by the purchaser or by a third party.

9. Under a further version of the VGVG, ( ) which I shall refer to as ‘the VGVG 2000’, the right to purchase built-on land by making a written declaration, rather than by obtaining authorisation, was extended to acquisitions made for holiday purposes. Under Paragraph 7(2) of the VGVG 2000, the purchaser must declare that the parcel of land is built-on, that the acquisition is or is not for holiday purposes, and that he is an Austrian national or satisfies one of the conditions in Paragraph 3.

10. Paragraph 3(1) provides:

‘In so far as follows from the law of the European Union, and subject to Paragraph 3(2), rules on the acquisition of land by non-Austrian nationals shall not apply to

…

(d) persons exercising the right of residence;

(e) persons and companies exercising the right to move capital freely, provided that they are resident in the territory of a Member State of the European Union or in the territory covered by the Agreement on the European Economic Area.’ ( )

11. Paragraph 3(2) provides:

‘Where the acquisition is made for holiday purposes, no exception to the rules regulating transfers of land to which non-Austrian nationals are party results from the provisions on the free movement of capital in the EEA Agreement.’ ( )

12. Paragraph 9 concerns authorisation requirements for land transfers to which non-Austrian nationals are party. Paragraph 9(1) specifies transfers to which that requirement applies and Paragraph 9(2) sets out detailed rules governing particular elements of the authorisation procedure.

13. According to Paragraph 7(4) of the VGVG 2000, in the event of acquisition for holiday purposes the purchaser must supply a certificate from the competent authority that use of the property as a holiday home is compatible with planning rules. Where those rules are complied with the authority is obliged to issue the certificate.

14. In so far as is relevant, the last sentence of Paragraph 17(2) provides that the declaration required by Paragraph 7(2) must be made within three months of the conclusion of a contract.

15. Paragraph 29 concerns the legal consequences of restrictions on transfer. Its first subparagraph provides that as long as the legally required authorisation or declaration has not been provided the underlying contract may not be performed; in particular the right in rem may not be registered in the land register. The parties are nevertheless bound by the contract.

16. Paragraph 29(2) provides in so far as is relevant:

‘If … a declaration is not made pursuant to Paragraph 7 within two years of the expiry of the period stated in the last sentence of Paragraph 17(2), the contract becomes retrospectively invalid.’





Facts and national proceedings

17. Mr Burtscher is an Austrian national and the registered owner of a parcel of built-on land in Vorarlberg. Ownership of the property was transferred by deed to him by his mother on 9 November 1995.

18. Mr Stauderer is a German national whose principal residence is in Germany. He and his family have used the property as a holiday home since 1974.

19. The order for reference states that, as a German national, he was prevented by the law as it stood at that time ( ) from obtaining from the competent authority the authorisation required to purchase the property.

20. Mr Burtscher’s parents and Mr Stauderer signed two agreements in connection with the property on 16 June 1975. Under the first agreement, it was agreed that the property would be leased to Mr Stauderer for a term of 99 years from 1 January 1975 and that the obligations of the parties should pass to their successors in title. Mr Stauderer undertook to pay a sum of ATS 350 000 as an advance payment on rent; any unused part of the advanced payment would be refunded to him in the event that the lease was terminated prematurely. He also assumed responsibility for the maintenance of the property and for the payment of tax and charges relating to its use.

21. Under the second agreement, Mr Burtscher’s parents undertook to sell the property to Mr Stauderer for a sum of ATS 350 000 were it to become legally possible for the lessee to acquire title. That was not legally possible at the time the agreement was made.

22. On 12 July 1994, the competent local authority decided that the use of the property as a holiday home was prohibited as a matter of planning law. But Mr Stauderer continued so to use the property.

23. On 11 September 2000, Mr Burtscher brought an action to require Mr Stauderer to vacate the property on the ground that he had no title (‘the first set of proceedings’). Both the Berufungsgericht (Appeal Court) and the Oberster Gerichtshof held that the agreements concluded in 1975 were evasive transactions. An evasive transaction is subject to the law applicable to the intended transaction. Therefore, under the relevant provisions of the VGVG 2000, Mr Stauderer ought to have made a declaration within two years of the introduction of that provision. His failure to make that declaration resulted in his losing the possibility of gaining title to the property. It was therefore necessary to reverse the transaction.

24. In the second set of proceedings, the court of first instance determined the amount of Mr Stauderer’s expenditure on the property and ordered him to vacate the property on receipt, according to the order for reference, of EUR 38 280.57. The appeal court upheld that judgment. In a further appeal to the Oberster Gerichtshof on a point of law, Mr Stauderer has claimed that the ruling in the first set of proceedings is superseded by the Court’s judgment in Salzmann II. ( )

25. In that case it was held that a prior authorisation procedure such as that contained in the VGVG constituted a restriction on the free movement of capital, which was incompatible with Article 73b(1) (now Article 56(1)) of the Treaty, in view of both the risk of discrimination inherent in that procedure and the fact that it was not strictly necessary in order to achieve the public interest objective which it pursued. ( )

26. In the light of that ruling, the Oberster Gerichtshof has suspended the proceedings before it and has referred the following question to the Court under Article 234 EC:

‘Should Article 56 EC be interpreted as precluding national legislation (the Vorarlberger Grundverkehrgesetz) by which, in the case of a land purchase transaction that does not require the authorisation of the land transfer authority, failure by the purchaser to declare by the due date that the land is built on, that the acquisition is not for holiday purposes, and that he is, or should be treated as, an Austrian national, results in the retrospective invalidity of the transaction?’

27. Written observations have been submitted by Mr Burtscher, Mr Stauderer, Austria, Spain and the Commission. All were represented at the hearing.





Admissibility

28. Mr Stauderer contests the admissibility of the reference on two grounds. First, under the Brussels Convention, ( ) he contests the jurisdiction of the Austrian courts in the main proceedings. Secondly, he argues that the reference is devoid of purpose since as of 1 June 2004 a new version of the VGVG no longer restricts acquisitions of built-on land.





Brussels Convention

29. Mr Stauderer contends that Article 16 of the Brussels Convention does not confer jurisdiction on the Austrian courts. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property Article 16 confers exclusive jurisdiction on the courts of the Contracting State in which the property is situated. In the present case, however, Article 16 does not apply; the right to obtain evacuation of the property is a personal right.

30. Mr Stauderer also cites Article 18 of the Convention, which states that a court before which a defendant enters an appearance is competent, except where appearance was entered solely to contest jurisdiction. In that connection, he submits that the Austrian courts failed to take into account the true nature of his appearance before the court of first instance. The Austrian courts therefore do not have jurisdiction.

31. I take the view that in proceedings referred to the Court under Article 234, objections to the admissibility of the reference on the ground that the referring court does not have jurisdiction over the case must normally be rejected. It is for the national court to consider objections to jurisdiction. As the Court has held on several occasions, the distribution of functions between the national court and the Court of Justice in such proceedings requires that the national court should apply rules governing the organisation of the courts and their procedure. ( ) In the light of those rulings, it is for the national court to rule on jurisdiction where the objection is based on rules of national law.

32. The same is true where the objection relies on rules of the Brussels Convention (now Regulation No 44/2001 ( )), unless the provisions of that Convention are expressly made the subject of the reference. ( )

33. There are sound pragmatic reasons for that approach. The Court should not in general be diverted from replying to the reference made. Further, even were it ultimately held that the national court did not have jurisdiction, the Court’s ruling on the substantive issue contained in the reference might still be useful in deciding the case.

34. The position might be different if the national court manifestly lacked jurisdiction.

35. By analogy, it is settled case-law that, while it is for the national court to determine in the particular circumstances the relevance of a question referred under Article 234 EC, the Court of Justice has no jurisdiction to give a ruling where it is quite obvious that the interpretation asked for bears no relation to the actual facts or purpose of the main action. ( )

36. Similarly, in my view, the Court should decline to give a preliminary ruling on the ground that the national court lacks jurisdiction only where that is manifestly so.

37. Here it is by no means manifest that the Austrian courts lack jurisdiction.

38. It may be that, as Mr Stauderer contends, Article 16(1) of the Brussels Convention does not apply for the reason that the contractual rights at issue in the main proceedings concern a right in personam rather than a right in rem, ( ) and so that provision does not confer exclusive jurisdiction on the Austrian courts.

39. But if that is so, it seems to me that Article 5, which confers jurisdiction on the courts for the place of performance of contractual obligations, should apply. On the facts, the place of performance must presumably be Austria and consequently the Austrian courts would in any event be competent to hear the case.

40. Moreover, Mr Stauderer’s submission that the Austrian courts are not competent under Article 18 must, in my view, fail. That provision states that a court before which a defendant enters an appearance is competent, except where appearance was entered solely to contest jurisdiction. It seems clear that Mr Stauderer has throughout both the first and second sets of proceedings appeared before the Austrian courts in order to contest the substance of the actions brought by Mr Burtscher.

41. It follows that there is no reason for the Court to examine further whether the referring court lacks jurisdiction.





Lack of purpose

42. Secondly, Mr Stauderer contests the admissibility of the reference on the basis that it is devoid of purpose since in adopting on 11 May 2004 a law amending the VGVG 2000, ( ) the regional legislature of Vorarlberg removed restrictions on acquisitions of built-on land. He argues that the Oberster Gerichtshof must base its decision on that most recent legislation, which came into force on 1 June 2004 and which repealed inter alia the requirement under Paragraph 7(2) of the VGVG 2000 that a declaration must be made on the acquisition of built-on land.

43. In line with the removal of that requirement, a further amendment was made in a consolidated version of the Vorarlberger Grundverkehrsgesetz adopted on 19 August 2004 ( ) (‘the VGVG 2004’), which does not refer to the acquisition of built-on land in the context of measures imposing the retroactive annulment of certain acquisitions of land. Paragraph 29 of the VGVG 2000 states that if a declaration is not made in relation to the purchase of built-on land as required by Paragraph 7(2) within the prescribed two-year period following conclusion of the contract for sale, the transaction is to be retrospectively invalid. By contrast, the equivalent provision in the VGVG 2004, Paragraph 27, does not require that a transaction relating to built-on land should be annulled if such a declaration is not made. It does, on the other hand, maintain that sanction in other circumstances.

44. The order for reference makes no mention of either the amending law of 11 May 2004 or the VGVG 2004.

45. At the hearing, Austria submitted that according to Austrian rules of civil procedure, the law applicable in a given action is that in force at the time of the hearing in first instance proceedings.

46. Which national law applies in the main proceedings is a matter for the national court to decide on the basis of national procedural rules.

47. There appears to be nothing in the VGVG 2004 to indicate that it has retroactive effect on acquisitions of built-on land. There is thus no obvious reason to suppose that that legislation applies to the present case and that the reference is now devoid of purpose.

48. Therefore the Court should, in my view, admit the reference. Accordingly I will now address the question asked.





Substance

49. Mr Burtscher submits that the transaction relates to a parcel of agricultural land, as recorded in the land use register, and is subject to the authorisation procedure for acquisition of such land as provided in the VGVG 2000. He also argues that the imposition of a penalty of retroactive annulment for failure to make the prescribed declaration by the due date does not breach Article 56 EC. In that respect, he is supported by Austria.

50. Mr Stauderer argues that penalties relating to the failure to observe the declaration procedure must be proportionate and cannot on that ground lead to losing the right to acquire property, as claimed in the present case.

51. At the outset, it should be recalled that although the legal regime applicable to property ownership is a field of competence reserved for the Member States under Article 295 EC, it is not exempted from the fundamental rules of the Treaty. Therefore national legislation on the acquisition of land must comply with the provisions of the Treaty on the free movement of capital. ( )

52. Accordingly, the question is whether national legislation which annuls a transaction for the sale of land for failure to make a prescribed declaration is compatible with Article 56 EC.

53. It has been held that a prior authorisation procedure for the purchase of land restricts by its very purpose the free movement of capital. ( )

54. Similarly, a declaration procedure accompanied by measures providing that in case of breach a transaction for the sale of land may be annulled would appear by its very purpose to restrict the free movement of capital. It therefore falls within the scope of the prohibition in Article 56.

55. The free movement of capital may none the less be restricted by such a procedure provided that it pursues an objective in the public interest; that it is applied in a non-discriminatory way; and that it is proportionate or, more specifically, is appropriate for ensuring that the objective pursued is achieved and does not go beyond what is necessary for that purpose. ( ) Each of those three points will now be considered.





Public interest

56. Austria indicates in its submissions that the objective pursued by the declaration procedure and the related penalty of retroactive annulment is, first, to inform the competent authority of acquisitions of built-on land and, second, to oblige the purchaser to continue to use the property for the purpose declared – which, Austria argues, is closely linked to the objective of preventing the use of built-on land as a holiday home in breach of the relevant planning rules.

57. Article 6(4) of Directive 88/361 permits the application of national legislation regulating purchases of secondary residences until the Council adopts further provisions in this area, which it has not done. ( )

58. Moreover, the Court has stated that restrictions on the establishment of secondary residences in a specific geographical area, which a Member State imposes in order to maintain, for planning purposes, a permanent population and an economic activity independent of the tourist sector, may be regarded as contributing to an objective in the public interest. ( )

59. I understand the terms of that statement, though comparatively broad in nature, to permit a declaration procedure which is linked to the objective of preventing the use of built-on land as a holiday home. Therefore I consider that the declaration procedure appears to pursue an objective that is compatible with Community law and the restriction on the free movement of capital to which it gives rise may be justified provided that it is also necessary and proportionate to achieving that objective.





Non-discriminatory application

60. Secondly, as to whether the procedure and the related penalty of retroactive annulment are applied in a non-discriminatory way, a preliminary remark should be made. The Court, applying an approach developed in the context of the freedom to provide services in Säger, ( ) has held that national rules which do not give rise to unequal treatment on grounds of nationality may nevertheless be found to impede the free movement of capital and thereby render it illusory. ( )

61. In order to establish a breach of Article 56 EC, therefore, it is not essential to prove that the national rules at issue are in themselves discriminatory.

62. As to whether those rules give rise to discrimination, two aspects should be considered: what might appear as a prohibition on nationals of other Member States acquiring property with a view to establishing a holiday home by relying on provisions on the free of movement of capital, and whether discretion is exercised in the issuing of a certificate necessary for registration of ownership once the declaration is made.

63. Mr Stauderer alleges that Paragraph 3(2) of the VGVG 2000 discriminates between Austrian nationals and nationals of other Member States.

64. Spain submits that the Austrian legislation is discriminatory in that it applies to non-residents who must declare themselves as such.

65. The terms of Paragraph 3(2) of the VGVG 2000 might at first sight appear to be discriminatory. On the one hand, they would seem to prohibit land transfers to which non-Austrian nationals are party – where such persons seek to avoid rules relating to such transfers by relying on the provisions on the free movement of capital in the EEA Agreement. On the other hand, Paragraph 3(2) does not affect land transfers between Austrian nationals since clearly they are not subject to the rules applicable in the former case.

66. However, Paragraph 7(2) of the VGVG 2000 appears to impose equally on Austrian nationals and nationals of other Member States the requirement of declaring that an acquisition of built-on land is or is not for the purpose of establishing a holiday home. It follows that such a requirement, where applicable, applies equally to nationals of other Member States and Austrian nationals.

67. Although the terms of Paragraph 3(2) might appear discriminatory, the declaration procedure does not seem to me to treat nationals of other Member States differently from Austrian nationals.

68. The second aspect in determining whether the declaration procedure and the related penalty of retroactive annulment may be applied in a discriminatory way is whether (a) the issuing of a certificate by the competent authority after the declaration is made under Paragraph 7(4) of the VGVG 2000 or (b) the retroactive annulment of a transaction under Paragraph 29(2) of the VGVG 2000 involve the exercise of discretion.

69. In the context of authorisation procedures aiming to prevent the acquisition of land with a view to establishing a secondary residence, the case-law indicates that requiring the purchaser to produce proof of future use of the property allows the competent authority something akin to a discretionary power which could be applied in a discriminatory way. ( )

70. By contrast, under the declaration procedure set out in the VGVG 2000, there is nothing to indicate that the competent authority exercises any discretion in issuing a certificate. The purchaser must make a declaration that the property is built-on, that he is an Austrian national or is exercising the right to move capital freely and is resident in the territory of a Member State of the European Union or the European Economic Area, and that the acquisition is or is not for holiday purposes. Where planning rules are complied with, the declaration is then simply acknowledged by the issuing of a certificate by the competent authority.

71. If, on the other hand, no declaration is made within two years of the conclusion of the contract for sale, the transaction is retrospectively invalid. The automatic nature of that rule means that it does not involve the exercise of discretion.

72. There is thus little likelihood that the procedure could be applied in a discriminatory way.





Necessary and appropriate nature

73. Thirdly, it must be considered whether the declaration procedure and its related penalty of retroactive annulment are necessary and appropriate in order to prevent acquisitions of land for the purpose of establishing a secondary residence in breach of the relevant planning rules.

74. The Court has previously examined whether a declaration procedure which legitimately aims to restrict the acquisition of property for use as a secondary residence is an appropriate means of achieving that end.

75. In Konle the Court stated that a declaration procedure accompanied by measures that may be taken in the event of breach thereof could constitute an effective means of supervision capable of legitimately preventing property being acquired as a secondary residence. ( ) Moreover, it considered what might constitute appropriate accompanying measures, as follows:

‘It is sufficient to note in that regard that an infringement of national legislation on secondary residences such as that at issue in the main proceedings may be penalised by a fine, by a decision requiring the acquirer to terminate the unlawful use of the land forthwith under penalty of its compulsory sale, or by a declaration that the sale is void resulting in the reinstatement in the land register of the entries prior to the acquisition of the property.’ ( )

76. In Reisch it reiterated that a similar declaration procedure accompanied by penalties for breach thereof was compatible with Community law. ( )

77. The Court, in Salzmann II, again preferred the use of a declaration procedure coupled with appropriate legal instruments as an alternative to an excessively restrictive authorisation procedure contained in the VGVG 1993. ( )

78. In line with those judgments, it seems that a declaration procedure such as the one at issue is an appropriate means of achieving the aim pursued by the national legislation. It allows the competent authority to check whether an acquisition of property is made for holiday purposes. If that is the case, it may check compliance with planning rules.

79. However, the central issue is whether the penalty of retroactive annulment of the purchase transaction for failure to make such a declaration goes beyond what is necessary for ensuring compliance with that procedure.

80. Austria maintains that the penalty is proportionate since no other would sufficiently encourage a purchaser of built-on land to make the prescribed declaration by the due date; only a penalty of retroactive annulment of the purchase can achieve the aim of preventing the illegal use of property for holiday purposes.

81. Mr Stauderer, the Commission and Spain argue that the penalty is disproportionate.

82. The Commission submits that it is the automatic nature of the penalty that renders it disproportionate. I agree.

83. Alongside that argument, I would add that the penalty imposed might be inappropriate. Annulment of the transaction, as accepted in Konle, would be appropriate only if it were established that the legitimate restriction on acquisition for a secondary residence had been breached. That decision would normally be based on a declaration received by the competent authority. However, annulment of the transaction merely for non-receipt of a declaration and therefore without establishing breach of the legitimate restriction seems premature and might go against the objective pursued by the Austrian legislation, since it might prevent use which was consistent with that objective.

84. I do not accept Austria’s submission that administrative penalties are insufficient as an alternative to prevent the acquisition of property for holiday purposes.

85. As the Commission points out, Paragraph 34 of the VGVG 2000 lists infringements of that legislation for which a fine may be imposed. I see no reason why a failure to submit the prescribed declaration by the due date could not have been included in that list.

86. I therefore reach the view that national legislation resulting in the retroactive annulment of a land purchase transaction where the purchaser fails to make a prescribed declaration by the due date is disproportionate, does not necessarily achieve and may even frustrate the aim pursued.





Conclusion

87. Accordingly I am of the opinion that the Court should give the following answer to the question raised by the Oberster Gerichtshof:

Article 56 EC precludes national legislation regulating land purchase transactions pursuant to which failure to make a prescribed declaration by the due date results in the retroactive annulment of the land purchase transaction.