Margarethe Ospelt and Schlössle Weissenberg Familienstiftung.
Date: 2003-09-23
7. The abovementioned Annex XII declares applicable to the European Economic Area ( " the EEA" ) Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5).  Annex I to that directive, which establishes the nomenclature in respect of movements of capital which still has the same indicative value for the purposes of defining the notion of capital movements (see Case C-222/97  Trummer and Mayer  [1999] ECR I-1661, paragraph 21), states that that concept covers transactions by which non-residents make investments in real estate on national territory.
24. First, it should be borne in mind that, although Article 222 of the EC Treaty (now Article 295 EC) does not call into question the Member States ' right to establish a system for the acquisition of immovable property which lays down measures specific to transactions relating to agricultural and forestry plots, such a system remains subject to the fundamental rules of Community law, including those of non-discrimination, freedom of establishment and free movement of capital (see, to that effect, Case 182/83  Fearon  [1984] ECR 3677, paragraph 7, and  Konle , cited above, paragraphs 7 and 22).  In particular, the Court has held that the scope of the national measures governing the acquisition of immovable property should be assessed in the light of those provisions of the Treaty which relate to the movement of capital (see, to that effect, 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, paragraphs 28 to 31).
27. Article 40 of and Annex XII to the EEA Agreement are applicable to the dispute in the main proceedings which relates to a transaction between nationals of States party to that Agreement.  The Court may give an interpretation of them where a reference is made by a court of a Member State with regard to the scope within that State of an agreement which forms an integral part of the Community legal system (see Case C-321/97  Andersson and Wåkerås-Andersson  [1999] ECR I-3551, paragraphs 26 to 31, and Case C-300/01  Salzmann  [2003] ECR I-4899, paragraph 65).
28. However, it is apparent from those provisions that the rules laid down in them prohibiting restrictions on the movement of capital and discrimination, so far as concerns relations between the States party to the EEA Agreement, irrespective of whether they are members of the Community or members of EFTA, are identical to those under Community law with regard to relations between the Member States.  National measures governing the acquisition of agricultural and forestry plots are therefore no more exempt from the abovementioned rules than under Community law.
29. Furthermore, one of the principal aims of the EEA Agreement is to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area, so that the internal market established within the European Union is extended to the EFTA States.  From that angle, several provisions of the abovementioned Agreement are intended to ensure as uniform an interpretation as possible thereof throughout the EEA (see Opinion 1/92 [1992] ECR I-2821).  It is for the Court, in that context, to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly within the Member States.
34. Measures such as those in issue in the main proceedings which entail, by their very purpose, a restriction on the free movement of capital (see, to that effect,  Konle , cited above, paragraph 39) may nevertheless be permitted provided that, first, they pursue in a non-discriminatory way an objective in the public interest and, secondly, they are appropriate for ensuring that the aim pursued is achieved and do not go beyond what is necessary for that purpose (see, to that effect,  Konle , paragraph 40, and  Salzmann , paragraph 42).  Furthermore, where the granting of prior authorisation is concerned, such measures must be based on objective criteria which are known in advance and which allow all persons affected by a restrictive measure of that type to have a legal remedy available to them (see, to that effect, Case C-205/99  Analir and Others  [2001] ECR I-1271, paragraph 38).
35. First, as regards the condition as to non-discrimination, it is clear from Paragraph 3 of the VGVG that the rules on the acquisition of land by foreigners do not apply,   " in so far as such is clearly required by the law of the European Union" , to   " persons and companies carrying out ... investments in immovable property and other transactions involving the free movement of capital" .  Those provisions observe the requirement of equal treatment between Austrian acquirers of title and persons who are not of that nationality but who are resident in one of the Member States and exercise the freedoms guaranteed by the Treaty (see, to that effect,  Reisch and Others , cited above, paragraph 34).
37. On the other hand, as regards the requirement as to residence laid down in Paragraph 5(1)(a) of the VGVG, it is not disputed that it was established within the framework of legislation concerning the ownership of agricultural land which is intended to achieve the specific objectives of preserving agricultural communities and viable farms.  Contrary to the claims of Ms Ospelt and the Foundation, it does not make any distinction between its own nationals and nationals of other Member States of the Community or, more broadly, of States party to the EEA Agreement.  It is therefore not, a priori, discriminatory in nature (see, to that effect,  Fearon , cited above, paragraph 10).
38. Secondly, so far as concerns the condition as to the aims of the national measure in issue, there is no doubt that the VGVG pursues public-interest objectives which are such as to justify restrictions on the free movement of capital.
39. First, preserving agricultural communities, maintaining a distribution of land ownership which allows the development of viable farms and sympathetic management of green spaces and the countryside as well as encouraging a reasonable use of the available land by resisting pressure on land, and preventing natural disasters are social objectives.
40. Secondly, as the Austrian Government and the Commission maintain, those objectives are consistent with the objectives of the common agricultural policy which, according to Article 39(1)(b) of the EC Treaty (now Article 33(1)(b) EC), aims   " to ensure a fair standard of living for the agricultural community"  in the working-out of which, according to Article 33(2)(a), account must be taken   " of the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions" .
41. Thirdly, so far as concerns the condition as to proportionality, it must be borne in mind that a system of prior authorisation may, in certain circumstances, be necessary and proportionate to the aims pursued, if the same objectives cannot be attained by less restrictive measures, in particular by a 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 , cited above, paragraph 44; and Case C-483/99  Commission  v  France  [2002] ECR I-4781, paragraph 46).
42. That is the case where national authorities seek to control the development of agricultural land ownership by laying down objectives such as those in the VGVG.
43. Indeed, the objective of sustaining and developing viable agriculture on the basis of social and land planning considerations entails keeping land intended for agriculture in such use and continuing to make use of it under appropriate conditions.  In that context, prior supervision by the competent authorities does not merely reflect a need for information but is intended to ensure that the transfer of agricultural land will not lead to their ceasing to be used as intended or to a use which might be incompatible with their long-term agricultural use.
44. Any supervision by national authorities which was subsequent to transfer of such land would not provide the same guarantee.  It could not prevent a transfer which ran counter to that function of continued agricultural use, and would thus not be appropriate to the objective.  Furthermore, action taken a posteriori, such as measures to annul the transfer, sanctions or evictions, could only be decided by the courts and would lead to delays inconsistent with the requirements of continuity of use and sound land management.  Legal certainty, which is of fundamental importance for any system of land transfer, would thus be undermined.
45. Thus, unlike supervision measures aimed at preventing construction of secondary residences after the transfer of building plots, which may be subsequent to the transaction without detracting from that objective (see, to that effect,  Reisch and Others , cited above, paragraphs 37 to 39), national provisions such as the VGVG can achieve their objectives only if the agricultural use for which the plots were intended is not irretrievably impaired.  In those circumstances, the very principle underlying a system of prior authorisation cannot be disputed.  The Court has in any event previously held that such a system in connection with the acquisition of property ownership is not necessarily contrary to Community law (see  Konle , cited above, paragraph 45).