Alexander Hengartner and Rudolf Gasser v Landesregierung Vorarlberg.
Date: 2010-07-15
25. It should be noted, as a preliminary point, that although the referring court expressly mentions in its question Article 43 EC (now Article 49 TFEU), the rules of the EC Treaty on freedom of establishment can be relied on only by a national of a Member State of the Union who wishes to establish himself in the territory of another Member State, or by a national of that State who finds himself in a situation which is connected with any of the situations contemplated by European Union law (see, to that effect, Case C‑147/91 Ferrer Laderer  [1992] ECR I‑4097, paragraph 7).
27. However, in order to provide the referring court with elements of interpretation which may be of use to it, the Court can consider provisions of the European Union legal order which the national court has not referred to in the question submitted for a preliminary ruling (see Case C‑241/99 SARPP  [1990] ECR I‑4695, paragraph 8, and Case C‑506/06 Mayr  [2008] ECR I‑1017, paragraph 43).
32. The contractual obligation at issue before the referring court is thus the making available to the applicants in the main proceedings, in return for payment and on certain conditions, of an area of land in order to hunt there. The letting contract therefore relates to a provision of services which, in the main proceedings, is of a cross-border nature, since the applicants in the main proceedings, the lessees of the hunting in that area, have to travel to the Province of Vorarlberg in order to exercise their right there.
33. The applicants in the main proceedings must therefore be regarded as the recipients of a service which consists in the grant, in return for payment, of the exploitation of a right to hunt in an area of land for a limited time (see, to that effect, Case C‑97/08 Jägerskiöld  [1999] ECR I‑7319, paragraph 36).
36. According to settled case-law, an international treaty must be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives. Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 provides in that respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (see, to that effect, inter alia, Opinion 1/91 [1991] ECR I‑6079, paragraph 14; Case C‑416/96 El-Yassini  [1999] ECR I‑1209, paragraph 47; Case C‑268/99 Jany and Others  [2001] ECR I‑8615, paragraph 35; and Case C‑386/08 Brita  [2010] ECR I‑0000, paragraphs 42 and 43 and the case‑law cited).
41. Moreover, the Court has observed that the Swiss Confederation did not join the internal market of the Community, the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market, which includes inter alia the freedom to provide services and the freedom of establishment (see Case C‑351/08 Grimme  [2009] ECR I‑0000, paragraph 27).
42. The Court has also stated that, in those circumstances, the interpretation given to the provisions of European Union law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself (see Case C‑541/08 Fokus Invest  [2010] ECR I‑0000, paragraph 28).