Hans Reisch and Others (joined cases C-515/99 and C-527/99 to C-540/99) v Bürgermeister der Landeshauptstadt Salzburg and Grundverkehrsbeauftragter des Landes Salzburg and Anton Lassacher and Others (joined cases C-519/99 to C-524/99 and C-526/99) v Grundverkehrsbeauftragter des Landes Salzburg and Grundverkehrslandeskommission des Landes Salzburg.
Date: 2002-03-05
22 It will be recalled in respect of the first submission that, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5).
24 As for the second submission, it is apparent from the documents in the case file, and it is not, moreover, in dispute, that all the facts in the main proceedings are confined to a single Member State. National legislation such as the SGVG, which applies without distinction to Austrian nationals and to nationals of Member States of the European Communities, may generally fall within the scope of the provisions on the fundamental freedoms established by the Treaty only to the extent that it applies to situations related to intra-Community trade (see, to that effect, Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575, paragraph 9, and Case 98/86 Mathot [1987] ECR 809, paragraphs 8 and 9).
25 However, that finding does not mean that there is no need to reply to the questions referred to the Court for a preliminary ruling in this case. In principle, it is for the national courts alone to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they refer to the Court (see Case C-448/98 Guimont [2000] ECR I-10663, paragraph 22). A reference for a preliminary ruling from a national court may be rejected by the Court only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see Case C-281/98 Angonese [2000] ECR I-4139, paragraph 18).
26 In this case, it is not obvious that the interpretation of Community law requested is not necessary for the referring court. Such a reply might be useful to it if its national law were to require that an Austrian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation (Guimont, cited above, paragraph 23).
28 It should be stated, as a preliminary point, that national legislation which regulates the acquisition of land for the purposes of prohibiting, in the interests of regional planning, the establishment of secondary residences in certain areas must comply with the provisions of the Treaty on the free movement of capital (Konle, cited above, paragraph 22).
29 First, as is apparent from Article 44(2)(e) EC, the right to acquire, use or dispose of immovable property on the territory of another Member State, which is the corollary of freedom of establishment (Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 22), generates capital movements when it is exercised.
30 Secondly, as is 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 Treaty (repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5), capital movements include investments in real estate on the territory of a Member State by non-residents. That nomenclature 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, and Case C-464/98 Stefan [2001] ECR I-173, paragraph 5).
31 It is therefore necessary, as the referring court requests the Court to do, to determine the scope of the national measures in issue in the main proceedings in the light of Articles 56 EC to 60 EC.
32 It is not in dispute that those measures, by laying down a procedure of prior notification/authorisation for the acquisition of immovable property, restrict, by their very purpose, the free movement of capital (see, to that effect, Konle, cited above, paragraph 39).
33 Such restrictions may nevertheless be permitted if the national rules pursue, in a non-discriminatory way, an objective in the public interest and if they observe the principle of proportionality, that is if the same result could not be achieved by other less restrictive measures.
34 As regards the first requirement, it is apparent from paragraph 40 of the Konle judgment, cited above, that restrictions on the establishment of secondary residences in a specific geographical area, which a Member State imposes in order to maintain, for regional 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. That finding can only be strengthened by the other concerns which may underly those same measures, such as protection of the environment. Moreover, it is apparent from the provisions of the SGVG that they do not discriminate between Austrian acquirers of title and persons resident in other Member States who exercise the freedoms guaranteed by the Treaty.
35 As regards the second requirement, the Court held, in paragraphs 44 to 48 of the Konle judgment, cited above, that a requirement of declaration prior to the purchase of building plots, coupled with the possibility of penalties for breach of the agreed declaration, for regional planning purposes, did comply with Community law. The procedure laid down by the SGVG is essentially declaratory in principle.
37 As regards the procedure of prior authorisation before the Grundverkehrslandeskommission, by contrast, the Court has already held that restrictions on the free movement of capital resulting from the requirement of prior authorisation were able to be eliminated by means of an appropriate notification system without thereby detracting from the effective pursuit of the aims of those rules (see Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 27, and Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 26 and 27).
38 In the main proceedings, given the opportunity for supervision which the prior notification scheme affords to the public authority, the existence of criminal sanctions and a specific action for annulment which may be brought before the national court should the project carried out fail to comply with the initial declaration, the prior authorisation procedure, which the Grundverkehrsbeauftragter alone may initiate on the basis of mere presumptions, cannot be regarded as a measure which is strictly indispensable to prevent infringements of the legislation in issue in the main proceedings in respect of secondary residences. This is all the more so given that the competent authorities may make the grant of prior authorisation subject to requirements on which the SGVG does not impose any substantive restriction, and require the acquirer of title to provide security up to the value of the property.
39 The provisions of the SGVG relating to the prior authorisation procedure before the Grundverkehrslandeskommission therefore go beyond both that which is necessary to achieve the chosen regional planning objective and the measures which Member States are entitled to take, as set out in Article 58(1)(b) EC, to prevent infringements of their laws and regulations.