C-178/99

A — National law 1. By order of 29 December 1998, the Bezirksgericht Bregenz (District Court, Bre- genz) (Austria) referred to the Court for a preliminary ruling three questions on the interpretation of the provisions of the EC 2. Under Austrian law, ownership of Treaty relating to the free movement of immovable property is acquired by means capital and the Agreement on the European of a court-approved entry ('acquisition of Economic Area. The body making the title') in the land register. In connection reference seeks in particular to ascertain with the approval of an ownership entry, whether the requirement of prior transfer the court known as the Grundbuchsgericht authorisation with constitutive effect in must examine whether ownership author- order to acquire an unbuilt plot of land is isation is necessary and, if so, whether such compatible with Community law. Follow- authorisation has been granted or whether ing the judgment in Konle, 2a number of the acquisition of ownership may be pos- cases concerning Austrian authorisation sible without transfer authorisation. The procedures for the acquisition of immova- Grundbuchsgericht forms part of the ble property have been brought before the Bezirksgericht, a judicial authority of first Court. 3In the present case, however, the instance. The applicable law is to be found Court must first rule on the question both in the federal legislation and in the whether the Bezirksgericht Bregenz, which regulations of the constituent States. has referred the questions in its capacity as the Grundbuchsgericht (court responsible for land registration matters), can be regar- ded as a 'court or tribunal of a Member State' within the meaning of Article 234 EC. 3. The Grundverkehrsgesetz of the consti- tuent State of Vorarlberg 4 distinguishes 1 — Original language: Dutch. 2 — Case C-302/97 Konle [1999] ECR I-3099. 3 — At present there are more than 35 references for preliminary 4 — Gesetz über den Verkehr mit Grundstücken (Law on Land rulings pending. With regard to these issues, see also Case Transactions; for the version currently in force, see LGBl. C-355/97 Beck and Bergdorf [1999] ECR I-4977. No 29/2000; hereinafter also 'the GVG').

between built plots of land, those which are isation with constitutive effect as referred unbuilt but designated as building land, to in Paragraph 8 is not granted, the land and those which are agricultural. In the transaction is unconditionally void by vir- case of built plots, the Grundverkehrsgesetz tue of Paragraph 29 of the GVG. provides for a model declaration ('Grund- verkehrserklärung') in which the acquirer undertakes not to use the acquired dwelling as a holiday residence. Paragraph 7 of the GVG provides that the purchaser must give that declaration himself in writing. After verification, the mayor of the commune in which the plot is situated or the chairman of the Grundverkehrs-Landeskommission (Regional Commission on Land Transac- tions; hereinafter: 'the Landeskommission') 6. The Grundbuchsgesetz5 contains the must officially recognise the declaration. procedure for the Grundbuchsgericht. The purchaser of the plot of land may then Under Paragraph 76 of the GBG, the have the ownership registered by the Grundbuchsgericht may, except in the cases Grundbuchsgericht. specified in the GBG or in another law, order entry in the register, not of its own motion, but only at the request of parties or authorities. The application for registration must be accompanied by the necessary documents. Before approving entry, the Grundbuchsgericht examines whether the criteria laid down in Paragraph 94 of the GBG have been satisfied, including the 4. For unbuilt plots designated as building presence of a transfer authorisation as land, Paragraph 8 of the GVG expressly referred to in Paragraph 8 of the GVG, requires transfer authorisation. Such without further investigating the wishes of authorisation must be granted if the the parties. Paragraph 95(1) of the GBG acquirer shows that the plot of land will, provides that, in principle, the Grund- within a specified time, be put to a use buchsgericht decides to grant or reject the conforming to the land-use plan. Under application without hearing the parties and Paragraph 13(2) of the GVG, the Land- without giving any provisional decisions. eskommission decides in the first instance However, in a number of clearly defined on the granting of authorisation. circumstances there is in fact provision for the parties to be heard. If the application for registration is rejected, Paragraph 95(3) of the GBG provides that the decision must state the reasons which prevent approval. The only remedy at law which Paragraph 122(1) of the GBG provides against land register decisions of the Bezirksgericht is the 'Rekurs'. 5. In the absence of the declaration required pursuant to Paragraph 7 of the 5 — Bundesgesetz über die Grundbücher (Federal Law on Land Grundverkehrsgesetz, or if transfer author- Registers, BGBl. No 39/1955; hereinafter also 'the GBG').

10. On or around 12 November 1998, in order to acquire title to the plot of land concerned, Ms Salzmann submitted an III — Facts and procedure application for registration to the Bezirks- gericht Bregenz which, sitting as the Grundbuchsgericht, must decide on the application. The declaration of 5 Novem- ber 1998 is attached to the application. In the grounds put forward in support of the 8. The facts in this case, as they appear application for registration, Ms Salzmann from the order for reference and from the argues that, by virtue of the requirements documents lodged by Doris Salzmann- of Community law and of the Agreement Greif, can be summarised as follows: on the European Economic Area, she does not need prior authorisation. On account of the absence of any transfer authorisa- tion, the application was subsequently rejected by a Rechtspfleger (judicial officer) by decision of 16 N o v e m b e r 1 9 9 8 . Ms Salzmann lodged an appeal against that 9. Doris Salzmann-Greif (hereinafter rejection before the Bezirksgericht Bregenz, 'Ms Salzmann'), resident in Fußbach in sitting as the Grundbuchsgericht, on the judicial district of Bregenz, purchased 18 November 1998. from Walter Schneider, resident in the same commune, an unbuilt plot of land situated in the locality. The purchaser and the vendor are both Austrian nationals. On 5 November 1998 Ms Salzmann sent the Landeskommission a declaration. That declaration corresponds mutatis mutandis 11. The Bezirksgericht Bregenz then deci- to the declaration referred to in Paragraph 7 ded, by order of 29 December 1998, to

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preliminary rulings concerning the inter- 16. The Commission and the Spanish Gov- pretation of the Treaty and the acts of the ernment argue that the nature of the institutions of the Community. Under the activity performed by the Bezirksgericht second paragraph of Article 234 EC, where Bregenz in this case, namely, ruling on an such a question is raised before any court or application for registration of ownership, tribunal of a Member State, that court or bears strong similarities to the Italian tribunal may, if it considers that a decision giurisdizione volontaria in the Job Centre on the question is necessary to enable it to case. 8As in that case, the national court in give judgment, request the Court of Justice the present case also decides as an admin- to give a ruling thereon. istrative body and does not exercise any judicial function. In accordance with the judgment in Job Centre, for those reasons the Bezirksgericht Bregenz does not have jurisdiction in the present case to refer questions to the Court for a preliminary ruling.

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Bundesgesetz provides for inter partes ele- or contrived situation, 10 as the Commis- ments in special cases. Nevertheless, it too sion seems implicitly to suggest. The order is of the opinion, on the basis of the for reference contains sufficient considera- judgment in Job Centre, that in the present tions of national law and facts to enable the case the Bezirksgericht Bregenz cannot be Court to give a ruling at least on the first regarded as a court or tribunal within the two questions referred. The questions are meaning of Article 234 EC. relevant since, in this case, Ms Salzmann has an actual interest in an authoritative interpretation of Article 56 EC. The Court's answer could, after all, result in no transfer authorisation being necessary for the acquisition of title to the immovable property acquired by her, since the national 19. At the hearing, Ms Salzmann likewise legislation appears to be incompatible with drew attention to possible inter partes Community law. elements in the procedure, only then to argue that in this case the Bezirksgericht Bregenz was in fact sitting as a court or tribunal within the meaning of Article 234 EC. At the same time, she submitted that the body making the reference was not a body deciding at first instance, but an appeal body, and for that reason these were indeed judicial proceedings. 21. Moreover, there is not the slightest dispute about the institutional require- ments which the Court's case-law imposes on the body making the reference. In Austria, the Bezirksgericht is the local court of first instance, with powers in the field of criminal and civil law and with a number of special functions. A Bezirksgericht is estab- B — Assessment lished by law, is independent and exercises its function on a permanent basis.

23. In Job Centre, the questions referred for a preliminary ruling were framed by the Tribunale civile e penale (Civil and Crim- inal District Court), Milan. The Tribunale had received an application for confirma- 11 When, in accordance with the applic- tion of Job Centre's memorandum of able national legislation and under the association. That application had to be "giurisdizione volontaria" procedure, the examined in 'non-contentious proceedings'. national court rules on an application for Under the Italian Civil Code, the Tribunale confirmation of a company's articles of must order the registration of the company association with a view to its registration, it if, after hearing the submissions of the is performing a non-judicial function public authorities, it finds that the compa- which, in other Member States, is entrusted ny's articles of association meet the condi- to administrative authorities. It is exercis- tions laid down by law. With regard to the ing administrative authority without being admissibility, the Court held as follows: at the same time called upon to settle any dispute. Only if the person empowered under national law to apply for such confirmation seeks judicial review of a decision rejecting that application — and '9 Whilst [Article 234 EC] does not make thus of the application for registration — reference to the Court subject to the may the court seised be regarded as exer- proceedings during which the national cising a judicial function, for the purposes court frames a question for a preliminary of Article [234 EC], in respect of an ruling being inter partes ... , it is none the application for the annulment of a measure less apparent from Article [234 EC) that a adversely affecting the petitioner ...'. 12 national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment

25. The judgment in Victoria Film, con- firmed the principles established in job Centre, even though the questions referred in that case were not framed by a judicial body but by an advisory board. The Court 27. First, it can be noted that in both cases declared that a Swedish revenue board a duly established judicial body exercises a acting in the context of a request from an special function at first instance, namely undertaking for a preliminary decision on a entry in a register of, in one case, a taxation matter was not entitled to make a company and, in the other, a transfer of reference since it was not called upon to ownership of immovable property. Despite settle a dispute and thus did not exercise the civil-law consequences attached to such any judicial function. The board fulfilled registration in both cases, the activities certain criteria which might make it possi- involved are of a purely administrative ble to regard it as a court or tribunal, such nature. 15 as independence and power to deliver binding decisions in application of rules of law. However, the Court considered that, like the Tribunale civile e penale in job Centre, the board performed an essentially administrative function. The Court also took into consideration in its ruling the 28. A second similarity relates to the fact that in other Member States this acquisition of title to immovable property. function also was expressly entrusted to an administrative authority (the tax autho- rities), and that only where the taxpayer 14 — Victoria Film, cited above, paragraphs 15 to 19. For an earlier example of a case in which the function of the body brought an action challenging a prelimin- making the reference was not to resolve disputes but to submit an opinion within the framework of an adminis- trative procedure, see the order of the Court in Case 318/85 Greis Untertveger [1986] ECR 955. 15 — The agent of the Austrian Government stated at the 13 — See the Opinion of Advocate General Mayras in Haaga, hearing that approximately 800 000 registrations are cited above, ECR 1213. effected each year by the courts of first instance.

16 — In this respect the present case differs from the proceedings in Case C-256/97 DM Transport [1999] ECR I-3913 (see, 30. Fourth, in the judgment in Job Centre, in particular, paragraph 9). In that case, the Belgian Tribunal de Commerce (Commercial Court), which had to the Court attaches importance to the pos- consider whether it should of its own motion declare a public limited company insolvent, was not taking an sibility for the applicant of appealing if the administrative decision. It had to give a decision in a application for registration is rejected. Such dispute between the undertakings and authorities involved in a declaration of insolvency. That decision was fully a possibility also arises in this case. Should judicial in nature.

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37. Her argument that the Bezirksgericht is acting as an appeal court in respect of the 35. I find Ms Salzmann's argument that the Landeskommission's decision to refuse to Bezirksgericht is not a body deciding at first recognise the declaration drawn up by her instance, but an appeal court, more rele- is simply incorrect. Under Paragraph 13 of vant. The Bezirksgericht, she claims, indi- the GVG, she should have lodged an objection to that decision with the Unab- hängige Verwaltungssenat, an independent 17 — Article 95 of the GBG, which is the relevant provision for administrative body, in order to obtain a this purpose, refers to Articles 45, 68 and 104 of the GBG and to the Liegenschaftsteilungsgesetz (Law on the Divi- review of the Landeskommission's assess- sion of Immovable Property). 18 — See, in particular, Dorsch Consult, cited above, paragraph ment. The Bezirksgericht Bregenz, sitting as 31. Job Centre likewise concerned inter partes proceed- the Grundbuchsgericht, does not have jur- ings, since the public authorities had been heard by the Tribunal civile e penale. isdiction to hear and determine objections

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to decisions of the Landeskommission. relatively simple acts which in other Mem- When it acts as an administrative body in ber States are often performed by non- connection with the registration of immo- judicial authorities and officials. It is hardly vable property transactions, it can only necessary to add that, where the judge is examine whether the statutory conditions charged with the exercise of administrative for such registration have been satisfied. functions, such as the registration of immo- The Bezirksgericht had to refuse the regis- vable property, the Rechtspfleger, who tration applied for by Ms Salzmann since deputises for him in those functions, also the legally required authorisation was lack- acts in an administrative capacity. ing.

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before the Bezirksgericht. The nature of the against the decision of the Rechtspfleger, is Rechtspfleger's function means that any incorrect. application for review of his decisions must be made to the judge under whose respon- sibility he works.

Under sions taken by the Rechtspfleger working Paragraph 11 of the RPG and Paragraph under his responsibility. The questions 122 of the GBG, the judge may make one submitted to the Court in this case thus of two decisions on the Rekurs brought by do not emanate from a court or tribunal Ms Salzmann. If he is of the opinion that within the meaning of Article 234 EC. The the registration applied for does in fact Court does not have jurisdiction to give a satisfy the requirements of the Grund- ruling on them. That does not of course buchsgesetz, he may still perform the affect the right of any judicial authority official act requested by Ms Salzmann.

tion. 23 — For an Austrian example, see Case C-222/97 Trammer and Mayer [1999] ECR I-1661. In that case, it was eventually the Oberster Gerichtshof which submitted a number of questions for a preliminary ruling in appeal proceedings on the refusal to enter in the land register a mortgage denominated in German marks. In the first instance the application for registration was made to the Bezirksgericht Feldbach. 42. It is clear from those procedural provi- 24 — The purpose of the procedure for a preliminary ruling, which is to contribute towards and guarantee the uniform sions that the Rekurs against decisions of application of Community law in the Member States, is not jeopardised by the existence of further possibilities of the Rechtspfleger before the court where he appeal. Nor is the interest of the individual litigant harmed is employed is in the nature of an admin- if the Court now declines jurisdiction. In Job Centre, after the application for confirmation of the articles of associa- istrative-law objection. Only if it needs to tion was rejected by the Tribunale civile e penale, the company concerned appealed to the Corte d'appello be referred on to the higher level of the (Court of Appeal), Milan. That court subsequently referred Landesgericht does the Rekurs acquire, a number or questions to the Court for a preliminary ruling; see Case C-55/96 Job Centre [1997] ECR I-7119. upon being heard by that court, the nature Moreover, if harm can be demonstrated to have resulted from a breach of Community law, Ms Salzmann still has of an administrative-law appeal. It follows the option of relying, as against either the federal State of Austria or the constituent State of Vorarlberg, on the that Ms Salzmann's argument, that in this Community doctrine of State liability. See to that effect case the Bezirksgericht is hearing an appeal Konle, cited above, paragraphs 58 and 61 to 64.