Minister voor Wonen, Wijken en Integratie v Woningstichting Sint Servatius.
Date: 2009-10-01
12. With a view to building housing in Liège, 30 km from the Netherlands border, Servatius established through Servatius Holding Maastricht BV two Belgian-law companies and applied to the competent Netherlands Minister for authorisation on the ground of the experimental nature of the project, in accordance with Article 120a of the Housing Law and Article 49 of the BBSH. The project comprised a combination of rented dwellings, owner-occupied dwellings, parking areas and commercial premises.
20. In order to reply to those questions, it should be observed as a preliminary point that, according to settled case-law, capital movements include investments in immovable property on the territory of a Member State by non-residents – as is also clear from the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the [EC] Treaty (article repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5); that nomenclature still has the same indicative value for the purposes of defining the notion of capital movements (see, inter alia, Case C-370/05 Festersen [2007] ECR I‑1129, paragraph 23 and the case-law cited). In other words, the right to acquire, use or dispose of immovable property on the territory of another Member State generates capital movements when it is exercised (see, inter alia, 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 29, and Festersen , paragraph 22).
21. Therefore, as the Court has already held, the measures prohibited by Article 56(1) EC, as restrictions on the movement of capital, include those which are likely to discourage residen ts of one Member State from making investments in immovable property in other Member States (see, to that effect, Festersen , paragraph 24).
22. That is the case, in particular, of national measures which make investments in immovable property conditional upon a prior authorisation procedure and thus restrict, by their very purpose, the free movement of capital (see, to that effect, Case C-302/97 Konle  [1999] ECR I‑3099, paragraph 39, and Reisch and Others , paragraph 32).
25. It must none the less be recalled that, according to well-established case-law, national measures restricting the free movement of capital may be justified by the reasons referred to in Article 58 EC or by overriding reasons in the public interest, provided that they are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary for that purpose (see Case C‑112/05 Commission v Germany [2007] ECR I-8995, paragraphs 72 and 73 and the case-law cited).
28. With regard first of all to the derogations allowed by Article 58 EC, suffice it to say that, even if it is accepted that the need for a Member State to promote social housing can constitute a fundamental interest of society, public policy cannot be invoked in the present case, inasmuch as the putative failure of approved institutions to comply with obligations under their statutes and the possible diversion of the funds they receive to activities other than social activities cannot amount to a genuine and sufficiently serious threat to that fundamental interest (see, to that effect, Case C‑54/99 Église de scientologie [2000] ECR I‑1335, paragraph 17 and the case-law cited).
29. Turning next to the justifications based on overriding reasons in the public interest, it should be recalled that the Court has already accepted that national rules may restrict the free movement of capital in the interest of objectives directed at resisting pressure on land or at maintaining, as a town and country planning measure, a permanent population in rural areas (see, to that effect, Konle , paragraph 40; Reisch and Others , paragraph 34, and Festersen , paragraphs 27 and 28).
30. Thus, by analogy, it should be held that requirements related to public housing policy in a Member State and to the financing of that policy can also constitute overriding reasons in the public interest and therefore justify restrictions such as that established by the national legislation at issue in the main proceedings. As the Netherlands Government has rightly pointed out, such considerations can only acquire greater significance in the light of certain features specific to the situation on the national market in question in the main action, such as a structural shortage of accommodation and a particularly high population density.
31. Moreover, as the Netherlands Government has rightly maintained, the Court has already accepted that the risk of seriously undermining the financial balance of social policies can also constitute an overriding reason in the public interest capable of justifying obstacles to the freedom of movement (see by analogy, in relation to a social security system, Case C‑372/04 Watts [2006] ECR I-4325, paragraph 103 and the case-law cited).
33. In that regard, it should be observed that a prior authorisation scheme may indeed, in some cases, be necessary and proportionate to the goals pursued if the latter cannot be achieved by less restrictive measures, in particular by an appropriate system of declarations (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, paragraphs 23 to 28; Konle , paragraph 44; and Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 35).
35. Nevertheless, the Court has also held, on many occasions, that a scheme of prior administrative authorisation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings. Therefore, if such a scheme is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see, inter alia, Case C‑169/07 Hartlauer [2009] ECR I‑0000, paragraph 64 and the case-law cited).
42. In that regard, it should be recalled at the outset that although, in view of the division of responsibilities in the preliminary ruling procedure, the referring court alone can determine the subject-matter of the questions it proposes to refer to the Court, the Court has also stated that, in exceptional circumstances, it will examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction.
43. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose (see, to that effect, Case C‑415/93 Bosman [1995] ECR I-4921, paragraph 61; Case C‑466/04 Acereda Herrera [2006] ECR I-5341, paragraph 48; and Case C‑380/05 Centro Europa 7  [2008] ECR I-349, paragraph 53). Thus, the Court has declined jurisdiction where it was obvious that the provision of Community law referred to the Court for interpretation was incapable of applying (Case C-85/95 Reisdorf [1996] ECR I‑6257, paragraph 16 and the case-law cited).
44. Article 86(2) EC, in conjunction with Article 86(1) EC, may be relied on to justify the grant by a Member State to an undertaking entrusted with the operation of services of general economic interest of special or exclusive rights which are contrary to the provisions of the Treaty, to the extent that performance of the particular task assigned to that undertaking can be assured only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community (Case C‑340/99 TNT Traco [2001] ECR I‑4109, paragraph 52; Case C‑220/06 Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia [2007] ECR I-12175, paragraph 78).
50. It is clear from well-established case-law, however, that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6; Case C‑470/04 N  [2006] ECR I‑7409, paragraph 69; and the order in Case C‑305/07 RAI [2008] ECR I-55, paragraph 16).
51. It is also important that the national court should set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In that connection, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I‑10423, paragraph 46; Joined Cases C-338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I-1891, paragraph 34; and Centro Europa 7 , paragraph 54).
52. The information provided in the decision making the reference serves not only to enable the Court to give useful answers, but also to enable the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that possibility is safeguarded, bearing in mind that, under that provision, only the decision making the reference is notified to the interested parties (see Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6; and order in Case C-116/00 Laguillaumie [2000] ECR I‑4979, paragraph 14).
53. It should also be added that the need for precision, in particular with regard to the factual and legislative context of the main proceedings, applies in particular in the area of competition, which is characterised by complex factual and legal situations (see, to that effect, Case C-238/05 Asnef-Équifax and Administración del Estado [2006] ECR I‑11125, paragraph 23, and the order in RAI , paragraph 18).