Landesgrundverkehrsreferent der Tiroler Landesregierung v Beck Liegenschaftsverwaltungsgesellschaft mbH and Bergdorf Wohnbau GmbH, in liquidation.
Date: 1999-09-07
22 There is not enough force in any of those arguments to rebut the presumption of relevance attaching to questions referred by the national courts for a preliminary ruling. That is possible only in exceptional cases, where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-105/94 Celestini [1997] ECR I-2971, paragraph 22).  Save for such cases, the Court is, in principle, required to give a ruling on questions concerning the interpretation of Community law (see Bosman, cited above, paragraph 59).
23 In the present case, the order for reference sets out the grounds of domestic law which led the national court to consider that the question concerning the right of the Landesgrundverkehrsreferent to bring an action for a declaration that a land transaction is void - the point on which the case before the national court turns - must be decided on the basis of Section 40(2) and (5) of the TGVG 1996.  That Law contains provisions, Sections 11 and 14 in particular, designed to prevent the establishment of secondary residences.
24 Against that factual and legislative background, so defined by the national court and the accuracy of which is not a matter for this Court to ascertain (see, to that effect, Case C-352/95 Phytheron International [1997] ECR I-1729, paragraphs 9 to 14), it does not appear that the interpretation of the concept of `existing legislation' within the meaning of Article 70 of the Act of Accession is wholly unrelated to the main action, or that the problem is hypothetical, or that the Court lacks the factual or legal material necessary to give a useful answer.
26 While, in principle, it is for the national court to determine the content of existing legislation regarding secondary residences on 1 January 1995, it is for the Court of Justice to provide that court with guidance on interpreting the Community concept of `existing legislation' in order to enable it to do so (see Case C-302/97 Konle [1999] ECR I-3099, paragraph 27).
31 The concept of existing legislation within the meaning of Article 70 of the Act of Accession, which it is for the national court to apply, is based on a factual criterion, so that its application does not require an assessment of the validity in domestic law of the national provisions at issue.  Thus, any rule regarding secondary residences which was in force in Austria at the date of accession is, in principle, covered by the derogation laid down in Article 70 of the Act of Accession (see Konle, cited above, paragraph 28).
32 It would be otherwise if that rule were withdrawn from the domestic legal system by a decision subsequent to the date of accession but with retroactive effect from before that date, thereby eliminating the provision in question as regards the past (see Konle, cited above, paragraph 29).
33 In proceedings for a preliminary ruling, it is for the courts of the Member State concerned to assess the temporal effects of declarations of unconstitutionality made by the constitutional court of that Member State (see Konle, cited above, paragraph 30).
34 Any measure 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 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 (see Konle, cited above, paragraph 52).
35 On the other hand, legislation 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 (see Konle, cited above, paragraph 53).
36 It follows that, if the provisions of Section 40 of the TGVG 1996 were deemed to have as their sole purpose the maintenance of rules which were in force on 1 January 1995, they would have to be covered by the derogation introduced by Article 70 of the Act of Accession.