Case C‑343/17

Fremoluc NV

v

Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest ABP) and Others

(Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel)

(Reference for a preliminary ruling — Fundamental freedoms — Articles 21, 45, 49 and 63 TFEU — Directive 2004/38/EC — Articles 22 and 24 — Right of pre‑emption of a government body on land located in its operating area with a view to developing social housing — Housing allocated on a priority basis to private individuals who ‘have strong social, economic or socio-cultural ties’ with the area in which that body operates — Situation which is confined in all respects within a single Member State — Inadmissibility of the request for a preliminary ruling)

Summary — Judgment of the Court (Fourth Chamber), 20 September 2018

Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the field of fundamental freedoms — Question raised concerning a dispute confined within a single Member State — No indication as to how the requested interpretation is necessary to resolve the dispute — Inadmissibility

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

The request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), made by decision of 19 May 2017, is inadmissible.

It should be noted at the outset that the request for a preliminary ruling concerns the interpretation of provisions of the FEU Treaty relating to freedom of movement for persons, freedom of establishment and the free movement of capital, and to measures adopted to implement those provisions, in a situation where, as the referring court itself observes, the dispute in the main proceedings is confined in all respects within a single Member State. According to the Court’s settled case-law, those provisions of the FEU Treaty, and the measures adopted to implement them, do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 33 and the case-law cited, and of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited).

In paragraphs 50 to 53 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), the Court referred to the four situations in which it could, nonetheless, be necessary for the resolution of the disputes in the main proceedings to interpret the provisions of the Treaties relating to fundamental freedoms, even though the disputes in the main proceedings were confined in all respects within a single Member State, leading the Court to find that those requests for a preliminary ruling are admissible.

The Court added that, in a situation such as that in the main proceedings, which is confined in all respects within a single Member State, it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the Court’s Rules of Procedure, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute (judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 55; of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 47; and order of 31 May 2018, Bán, C‑24/18, not published, EU:C:2018:376, paragraph 18).

It follows from those requirements that, in order for it to be found that there is such a connecting link, it is not sufficient for the referring court to state that it is not inconceivable that nationals established in other Member States were or are interested in making use of Union provisions on fundamental freedoms to carry out activities in the territory of the Member State which enacted the national legislation in question and, consequently, that that legislation, applicable without distinction to nationals and to nationals of other Member States, is capable of producing effects which are not confined to that Member State.

The request for a preliminary ruling must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, such as complaints or applications brought by operators situated in other Member States or involving nationals of those Member States, on the basis of which the required connecting link may be positively established. More particularly, the referring court may not merely submit to the Court evidence suggesting that such a link cannot be ruled out or which, considered in the abstract, could constitute evidence to that effect, and must, on the contrary, provide objective and consistent evidence enabling the Court to ascertain whether such a link exists (see, by analogy, judgments of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraphs 20 and 22, and of 19 April 2018, Oftalma Hospital, C‑65/17, EU:C:2018:263, paragraphs 39 and 40).

(see paras 18, 20, 22, 28, 29, 33, operative part)