Ewald Burtscher v Josef Stauderer.
Date: 2005-12-01
30. As regards the alleged lack of jurisdiction of the national court, it must be pointed out that it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure (see Case 65/81 Reina  [1982] ECR 33, paragraphs 7 and 8; Case C-10/92 Balocchi [1993] ECR I-5105, paragraphs 16 and 17; and Case C-39/94 SFEI and Others [1996] ECR I‑3547, paragraph 24).
31. Nor is it for the Court to examine whether the matter was brought before the national court in compliance with the rules on jurisdiction laid down by the Brussels Convention, unless the conditions for applying those rules are the actual subject of the reference for a preliminary ruling (see, to that effect, Case C-105/94 Celestini [1997] ECR I-2971, paragraph 20).
32. The Court must abide by the decision of a court of a Member State requesting a preliminary ruling in so far as that decision has not been overturned in any appeal procedures provided for by national law ( Reina , paragraph 7; Balocchi , paragraph 17; and SFEI and Others , paragraph 24).
33. So far as concerns the other grounds for inadmissibility pleaded by Mr Stauderer, deriving from national law, it should be pointed out, first, that under Article 234 EC the Court is to have jurisdiction to give preliminary rulings concerning questions of Community law referred to it by a court or tribunal of one of the Member States. That procedure is not concerned with the interpretation of national laws or regulations. Any inaccuracies in the description of the relevant national provisions given by the national court in its judgment requesting a preliminary ruling cannot have the effect of depriving the Court of jurisdiction to reply to the question referred to it by the national court (see, in particular, Joined Cases 209/84 to 213/84 Asjes and Others  [1986] ECR 1425, paragraph 12).
34. Secondly, as the Court has consistently held, in principle it is for the national courts alone to determine, having regard to the particular features of each case, both the need to refer a question for a preliminary ruling and the relevance of that question (see, to that effect, in particular Joined Cases C-515/99, C-519/99 to C‑524/99 and C-526/99 to C-540/99 Reisch and Others  [2002] ECR I-2157, paragraph 25, and Salzmann , paragraph 30).
35. It follows that, in the factual and legislative context which the national court is responsible for defining and the accuracy of which is not a matter for the Court to determine, the questions submitted by the national court enjoy a presumption of relevance (See Case C-355/97 Beck and Bergdorf  [1999] ECR I-4977, paragraphs 22 to 24, and Salzmann , paragraph 31).
39. As the Court has already held, legislation such as the VGVG at issue in the main proceedings the aim of which is to prohibit or make subject to specific conditions the acquisition of land for the purposes of establishing secondary residences, must comply with the provisions of the EC Treaty on the free movement of capital (see, to that effect, Konle , paragraph 22; Reisch and Others , paragraph 28; and Salzmann , paragraph 39).
44. Such restrictions may nevertheless be permitted provided that the national measures concerned pursue an objective in the public interest, are applied in a non-discriminatory manner and comply with the principle of proportionality, that is to say, are appropriate for securing the attainment of that objective and do not go beyond what is necessary in order to attain it (see, to that effect, Konle , cited above, paragraph 40; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 33; Reisch and Others , paragraph 33; and Salzmann , paragraph 42).
46. In that regard, it is settled case-law that restrictions on the establishment of second homes in a particular geographical area introduced by a Member State in order to maintain, with a view to town and country planning, a permanent population and economic activity independent of the tourist sector, may be regarded as contributing to objectives in the public interest (see Konle , paragraph 40; Reisch and Others , paragraph 34; and Salzmann , paragraph 44). Nor can there be any doubt that the concern of national authorities to ensure the application of planning rules in compliance with the requirement of legal certainty of transactions is an objective in the public interest.
52. In that respect, it is true that a prior declaration system, when coupled with appropriate legal instruments, may in fact constitute a measure proportionate to the public interest objective pursued. The Court has thus held that such a system may make it possible to eliminate the requirement of prior authorisation, generally more restrictive of the free movement of capital, without undermining the effective pursuit of the aims of the public authority (see, to that effect, Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others  [1995] ECR I‑4821, paragraph 27; Konle,  paragraphs 46 and 47; and Salzmann , paragraph 50). As the Commission of the European Communities rightly submits, such a declaration system cannot, in itself, constitute a disproportionate measure.
57. Admittedly, the Court has accepted that an action for annulment of a contract of sale could constitute a proportionate penalty in the context of a prior declaration system ( Salzmann , cited above, paragraph 51). Likewise, the Court has already held that certain town and country planning objectives, such as that of sustaining and developing stable agriculture through control of the development of agricultural land ownership, might not be attainable through a simple system of prior declaration and that therefore even a prior authorisation procedure could, under certain circumstances, be compatible with the free movement of capital (see, to that effect, in particular Case C-452/01 Ospelt and Schlössle Weissenberg [2003] ECR I-9743, paragraphs 41 to 45).
60. Other measures with less wide-ranging effects, such as fines, could penalise late submission of a declaration. Paragraph 34 of the VGVG includes, moreover, a list of facts justifying the imposition of pecuniary sanctions. Likewise, the applicant could be given an opportunity to explain the reasons for his delay or the competent authority could be allowed, particularly if the rights of third parties are not at issue, to accept, under certain conditions, even a late declaration, or to uphold the validity of the agreement, also under certain conditions.