Fremoluc NV v Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest ABP) and Others.
Date: 2018-09-20
18


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).
19


As the Court has observed, while the bringing of an action for failure to fulfil obligations requires the Court to ascertain whether the national measure challenged is, in general, capable of deterring operators from other Member States from making use of the fundamental freedoms in question, its function in proceedings for a preliminary ruling is to help the referring court to resolve the specific dispute pending before that court, which presupposes that those freedoms may be relied on in that dispute and, therefore, that it has been established that those freedoms are applicable to that dispute (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 49, and order of 31 May 2018, Bán, C‑24/18, not published, EU:C:2018:376, paragraph 22).
20


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.
21


The Court has also stated that, in those four situations, it cannot, where the referring court does no more than state that the legislation in question applies without distinction to nationals of the Member State concerned and those of other Member States, consider that the request for a preliminary ruling concerning the provisions of the FEU Treaty on the fundamental freedoms is necessary to enable that court to give judgment in the case pending before it. The specific factors that allow a connecting link to be established between the subject matter or circumstances of a dispute, confined in all respects within the single Member State concerned, and those provisions must be apparent from the order for reference (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 54; orders of 27 April 2017, Emmea and Commercial Hub, C‑595/16, not published, EU:C:2017:320, paragraph 18, and of 31 May 2018, Bán, C‑24/18, not published, EU:C:2018:376, paragraph 17).
22


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).
28


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.
29


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).
31


It follows that none of the four situations referred to in paragraph 20 of the present judgment, in which it might prove necessary, in order to resolve the dispute in the main proceedings, for the provisions of the Treaties relating to the fundamental freedoms to be interpreted, is applicable in the present case. As regards Articles 22 and 24 of Directive 2004/38, it should be noted that it governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 20 and the case-law cited). It is not in any way apparent from the request for a preliminary that the dispute in the main proceedings involves nationals of Member States other than the Kingdom of Belgium.