Doris Salzmann.
Date: 2003-05-15
28.  In that regard, it must first be observed that Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides the national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (see, to that effect, Case C-254/98   TK-Heimdienst   [1998] ECR I-151, paragraph 12, and 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 22).
29.  In this case, the national court seeks the interpretation by the Court of Article 73b(1) of the Treaty for the purpose of determining the scope of rules of national law which refer thereto.  Since the questions submitted relate to the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see, to that effect, Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59).
30.  Moreover, it is settled case-law that 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 such a question (see, to that effect, the judgments in   Guimont  , paragraph 22, and   Reisch  , paragraph 25).
31.  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 this Court to determine, the questions submitted by the national court enjoy a presumption of relevance (Case C-355/97   Beck and Bergdorf   [1999] ECR I-4977, paragraphs 22 to 24).
32.  It is true that it is apparent from the documents before the Court that all the facts in the main proceedings are confined to a single Member State, and that national legislation such as the VGVG, which applies without distinction to Austrian nationals and to nationals of other Member States of the European Union, may generally fall within the scope of the provisions of the Treaty relating to fundamental freedoms only to the extent that it applies to a situation related to intra-Community trade.  However, those findings do not affect the Court's obligation to reply to the national court by interpreting the provisions of Community law which set the framework for the scope of the national provisions at issue in the main proceedings.  It is only in the exceptional case, where it is quite obvious that the interpretation of Community law sought bears no relation to the facts or the purpose of the main action, that the Court refrains from giving a ruling (see, to that effect,   Konle  , paragraph 33;   Angonese  , paragraph 18, and   Reisch  , paragraph 25).
34.  Moreover, where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to avoid discrimination against foreign nationals, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see Case C-43/00   Andersen og Jensen   [2002] ECR I-379, paragraph 18). In this case, the documents before the Court show that the Austrian courts consider that Austrian nationals may rely, when exercising the rights which they derive from the free movement of capital, on the equal treatment to which nationals of the Member States of the European Union and the EEA are entitled under Paragraph 3(1) of the VGVG.
39.  As a preliminary point, it must be recalled that, although the legal regime applicable to property ownership is a field of competence reserved for the Member States under Article 222 of the EC Treaty (now Article 295 EC), it is not exempted from the fundamental rules of the Treaty (Konle  , paragraph 38).  Thus, national measures such as those at issue in the main proceedings, which regulate the acquisition of land for the purposes of prohibiting the establishment of secondary residences in certain areas, must comply with the provisions of the Treaty on the free movement of capital (Konle  , paragraph 22, and   Reisch  , paragraph 28).
42.  Such a measure may nevertheless be permitted, provided that it pursues an objective in the public interest, is applied in a non-discriminatory way and observes the principle of proportionality, that is to say, is appropriate for ensuring that the aim pursued is achieved and does not go beyond what is necessary for that purpose (Konle  , paragraph 40; Case C-390/99   Canal Satélite Digital  [2002] ECR I-607, paragraph 33, and   Reisch  , paragraph 33).
43.  With regard, first, to the condition relating to meeting an objective in the public interest, the Austrian Government maintains that, by introducing the prior authorisation procedure, the Landtag Vorarlberg is pursuing a specific objective of town and country planning.  Apart from desiring to prevent the establishment of buildings contravening the specifications of land use plans, the Landtag Vorarlberg is also seeking to encourage the most judicious use of the available building land by acquirers.  The explanatory memoranda on Paragraph 8(1) and (3) of the VGVG (published in the official record of proceedings of the XXVIth Landtag Vorarlberg, 1997), the significance of which in the interpretation and application of the law in Austria has been accepted by the Court (Konle  , paragraph 41), attest to the concerns of the Landtag Vorarlberg.
44.  In that regard, it is settled case-law that restrictions on the establishment of secondary residences in a specific geographical area, which a Member State imposes in order to maintain, for town and country 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 (see   Konle  , paragraph 40, and   Reisch  , paragraph 34).
46.  It must be observed, however, that, in so far as it requires the acquirer to produce proof of the future use of the land he is acquiring, a measure such as Paragraph 8(3) of the VGVG allows the competent administrative authority considerable latitude which may be akin to a discretionary power (see, to that effect,   Konle  , paragraph 41).
49.  It must be acknowledged, in that regard, that a procedure simply involving a declaration is not necessarily sufficient to enable the aim pursued by the public authority by recourse to a prior authorisation procedure to be achieved (Konle  , paragraph 46).
50.  However, as the Court has already held, a procedure simply involving a declaration may in fact, if it is coupled with appropriate legal instruments, make it possible to eliminate the requirement of prior authorisation without undermining the effective pursuit of the aims of the public authority (Joined Cases C-163/94, C-165/94 and C-250/94   Sanz de Lera and Others   [1995] ECR I-4821, paragraph 27, and   Konle  , paragraphs 46 and 47).
51.  In this case, in a situation characterised, on the one hand, by the fact that under the system of prior declaration the public authority can check that acquisition and building projects conform to the land use plan, and, on the other hand, by the availability of pecuniary sanctions, of a specific action for annulment of the contract of sale, provided for in Paragraph 25(2) of the VGVG, and of a penalty consisting of the compulsory sale of the land in question, which may be ordered under Paragraph 28 of the VGVG, the prior authorisation procedure cannot be regarded as a measure strictly necessary in order to achieve the town and country planning objective pursued by the national legislation at issue in the main proceedings (see, to that effect,   Konle  , paragraph 47, and   Reisch  , paragraph 38).  In such a situation, the public interest does not demand that the examination by the administrative authorities of the proposed acquisition of a plot of building land have the effect of suspending the exercise of the freedom claimed.
54.  It must be recalled that any provision adopted after the date of accession is not, by that fact alone, automatically excluded from the derogation laid down in Article 70 of the Act of Accession.  Thus, if it is in substance identical to the previous legislation or if it is limited to reducing or eliminating an obstacle to the exercise of Community rights and freedoms in the earlier legislation, it will be covered by the derogation (Konle  , paragraph 52, and   Beck and Bergdorf  , paragraph 34).
55.  The criterion of substantive identity, which allows legislation adopted after the date of accession to be included within the scope of Article 70 of the Act of Accession, is to be strictly interpreted, so that later legislation which is based on an approach which differs from that of the previous law and establishes new procedures cannot be treated as legislation existing at the time of accession.  Thus, Article 70 of the Act of Accession cannot be applied to later legislation which includes a number of significant differences when compared with the legislation existing on the date of accession (Konle  , paragraph 53).
56.  In this case, it is for the national court to determine whether Paragraph 8(3) of the VGVG has as its sole purpose the maintenance in force of the legislation on secondary residences which was applicable on 1 January 1995, or whether it includes significant differences which preclude its being covered by the derogation established by Article 70 of the Act of Accession (see, to that effect,   Beck and Bergdorf  , paragraph 36).
65.  In that regard, it must be recalled that the Court has, in principle, jurisdiction under Article 234 EC to give a preliminary ruling on the interpretation of the EEA Agreement where such a question is raised before a court or tribunal of a Member State of the European Union (Andersson and Wåkerås-Andersson  , paragraph 27).
66.  However, that jurisdiction to interpret the EEA Agreement under Article 234 EC applies solely with regard to the Communities.  The Court therefore has no jurisdiction to rule on the interpretation of that agreement as regards its application in the EFTA States (Andersson and Wåkerås-Andersson  , paragraph 28).
67.  Nor has such jurisdiction has been conferred on the Court of Justice in the context of the EEA Agreement.  Under Article 108(2) of that Agreement and Article 34 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (OJ 1994 L 344, p. 1), the EFTA Court has jurisdiction to rule on the interpretation of the EEA Agreement applicable in the States of EFTA. There is no provision in the EEA Agreement for parallel jurisdiction to be exercised by the Court of Justice (Andersson and Wåkerås-Andersson  , paragraph 29).
68.  The fact that the EFTA State in question subsequently became a Member State of the European Union, so that the question emanates from a court or tribunal of one of the Member States, cannot have the effect of conferring on the Court of Justice jurisdiction to interpret the EEA Agreement as regards its application to situations which do not come within the Community legal order (Andersson and Wåkerås-Andersson  , paragraph 30).