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further declare his intention to use the land 7. Paragraph 19 of the Grundverkehrs- as his principal residence or for profes- gesetz requires the acquirer to use the land sional purposes. He may declare that he in accordance with the declaration which intends to use the land for a secondary he has submitted pursuant to Paragraph 12 residence only if the land was used for a of that Law. secondary residence prior to 1 March 1993 or is located in an area designated for secondary residences.

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11. The relevant Community legislation is to refer the following questions to the to be found in the provisions of the EC Court of Justice for a preliminary ruling Treaty concerning the freedom to provide pursuant to Article 177 of the EC Treaty services and the free movement of capital (now Article 234 EC): (Article 49 et seq. EC and Article 56 et seq. EC, respectively).

(a) in Case C-515/99 and in Cases C-527/99 to C-540/99:

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Salzburg must comply with a notification address in another Member State, namely or authorisation procedure in respect of the Germany. In a number of other instances acquisition of that plot, with the con- the applicant in the main proceedings is a sequence that one of the fundamental free- legal person. doms of the acquirer of title as guaranteed by the laws of the European Union has been infringed in this case?'

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question then is in particular what kind of pendent of the tourist sector in certain obstruction can be deemed acceptable in regions.' 11 I would add that the protection the case of transactions relating to immov- of nature or of fragile landscapes may also able property. Immovable property is be an obvious goal for regional planning. usually acquired with the aim of retaining possession for some considerable time. Formalities preceding the acquisition of immovable property, unlike that of mov- able property — I refer to the example of the judgment in Guimont 10 concerning 26. To this end, the Grundverkehrsgesetz cheese —, do not necessarily form a more provides for rules requiring the number of serious obstruction than subsequent checks secondary residences in the Land of (for further comments see section VIII). Salzburg to be limited. It introduces both a notification and authorisation procedure before immovable property is acquired and a system of subsequent supervision and sanctions. In other words, it governs the use of immovable property for secondary resi- dences. The point of departure for the 24. On the basis of the discussion of these legislature is the acquisition of immovable three general issues I shall arrive at the property. answers to the questions referred to the Court.

27. The legislation is aimed at a certain market, namely the potential acquirers of secondary residences. These may be private individuals or undertakings such as com- mercial operators of holiday homes or V — Content and purpose of the property developers. By way of example, Salzburger Grundverkehrsgesetz of 1997 the applicants in the main proceedings include legal persons as well as private individuals.

own Member State. This is undoubtedly (the right of) residence in another Member true of areas attractive to tourists, of which State. Although secondary residences are there are many in the Land of Salzburg. usually occupied for only a limited period The Grundverkehrsgesetz takes express of the year, such occupancy none the less account of the possibility of foreigners has something permanent about it. Fur- wishing to acquire a secondary residence. thermore, the occupancy of a secondary Paragraph 12 refers explicitly to the residence is relevant to the freedom to nationality of the acquirer: he must be an provide services. I refer in this context to Austrian or a national of another Member the judgment in Luisi and Carbone, 12 in State or of another country belonging to the which the freedom to provide services was European Economic Area. I attach no also deemed applicable to those for whom importance in this context to the fact that a service is provided. The use of a second- the applicants in the main proceedings are ary residence is bound to be accompanied (almost) all resident in Austria. In my view, by services provided for its private owner, this is a coincidence. Moreover, the legis- for example, services connected with the lation of the Land of Salzburg here under residence itself, such as repairs, and services discussion may well deter foreigners from relating to tourist activities. 13 Secondly, acquiring building plots in this Land. the private individual may not himself use the secondary residence he has acquired, but let it to others. He can then be regarded as a provider of services within the meaning of Article 50 EC. In a third, very common variant the secondary residence is intended for the owner's use for part of the year and 29. I have thus briefly indicated the pur- is otherwise let to others. Fourthly, the pose and content of the legislation and the immovable property may be acquired pri- market to which it relates. marily as an investment or for speculative reasons. In such cases the emphasis is not on its use as a secondary residence but on the expected increase in the value of the land. The free movement of capital is then at issue. 30. Such legislation has an effect on the exercise of various economic activities of relevance to Community law, depending on the way in which immovable property is used for purposes of non-permanent resi- dence.

himself does not then, in principle, play any speculation in land, may be the acquirer's role. He will normally use the land to let purpose, but these are not activities that the secondary residences, in holiday parks, for Salzburger Grundverkehrsgesetz seeks to example. The lessor, who will frequently address. offer a number of other (tourist) services besides residences to rent, can then be regarded as a provider of services. The main aim in acquisition for professional purposes may again be investment or speculation. The land is then acquired less 35. Finally, regardless of how land is used, with a view to its use for a secondary the legislation in all cases affects the free residence. movement of payments and capital. It concerns payment and capital transactions connected with the financing of the acquisi- tion. In this context it affects both the actual investment in immovable property and the financing of that investment. I would point out that these effects are not intended by the legislation, but they none 33. Finally, I would point out that the the less occur. Salzburger Grundverkehrsgesetz of 1997 concerns the acquisition both of land on which buildings have already been con- structed and of land where this is not yet the case. If no buildings are standing on the land at the time of acquisition, an acquirer wanting to be able to use it for a secondary residence will, of course, have to build on VI — The free movement of capital and it. An acquirer who has a residence built on the other freedoms emanating from the EC his land can be regarded as the person for Treaty whom a service is provided.

Austrian legislation be considered in the 40. Neither Article 56 EC nor any other context of the free movement of capital, provision of the EC Treaty gives a more not the other freedoms emanating from the precise indication of what is meant by EC Treaty. I assume that that court bases movements of capital. For these reasons the this choice on the judgment in Konle. 14 Court often reverts to Annex I to Directive 88/361/EEC, 16 which includes a nomen- clature of capital movements. However, this directive dates from the time before the i n s e r t i o n — u n d e r the M a a s t r i c h t Treaty — of the present Article 56 EC into the Treaty and is therefore, strictly 38. Having regard to this question, I shall speaking, no longer valid. discuss at some length the substance and evolution of the free movement of capital to the extent to which that it is relevant to the present cases. I shall then consider other freedoms under the EC Treaty, paying 4 1 . In its judgment in Trummer and particular attention, given the nature of Mayer, 17 the Court states on this subject: the Salzburger Grundverkehrsgesetz of 'However, inasmuch as Article 73b of the 1997, to the freedom to provide services. EC Treaty 18 substantially reproduces the This will lead to an assessment of how the contents of Article 1 of Directive 88/361, acceptability of transactions in immovable and even though that directive was adopted property, which are at issue here, can best on the basis of Articles 69 and 70(1) of the be gauged. EEC Treaty, which have since been replaced by Article 73b et seq. of the EC Treaty, the nomenclature in respect of movements of capital annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of Article 73b et seq., The substance of the free movement of subject to the qualification, contained in capital the introduction to the nomenclature, that the list set out therein is not exhaustive.'

investments in real estate is particularly secondly, measures that may obstruct resi- important. According to Directive 88/361, dents of other Member States wanting to the free movement of capital concerns make investments or effect other financial investments in real estate on national transactions in the Member State con- territory by non-residents and investments cerned. To quote from the judgment in in real estate abroad by residents. I would Commission v Belgium: 19 'Measures taken also refer in this context to the seventh by a Member State which are liable to recital in the preamble to that directive, dissuade its residents from obtaining loans which reads as follows: '... the full liberali- or making investments in other Member sation of capital movements could in some States constitute restrictions on movements Member States, and especially in border of capital within the meaning of that areas, contribute to difficulties in the provision..., 20 as do measures which make market for secondary residences;... existing a direct foreign investment subject to prior national legislation regulating these pur- authorisation....' 21 chases should not be affected by the entry into effect of this Directive'.

45. At issue in the cases here under dis- cussion is a national measure that places a prior obstacle in the way of a direct 43. It does not follow from the annex that (foreign) investment in the territory of the every acquisition of immovable property is Member State. governed by the free movement of capital, but it does follow that an investment in, or speculation with, immovable property may come under the free movement of capital. What is decisive is the activity to which domestic legislation relates. Is it the acquisition of immovable property with the aim of using it in a given way, or is it The evolution of the free movement of the investment? In point 26 of this Opinion capital I stated that the Salzburger Grundverkehrs- gesetz of 1997 focuses on the use made of immovable property. 46. The free movement of capital has grown significantly in importance since

the establishment of the European Econ- 48. A major step towards the liberalisation omic Community. In the first phase, which of capital movements was taken with the lasted in general terms until the adoption of adoption of Directive 88/361. In this sec- Directive 88/361 — a directive that was to ond phase the Member States were required have been implemented in the Member to lift the restrictions on the intra-Commu- States by 1 July 1990 — the Treaty con- nity movement of capital. The Directive tained a provision on the free movement of must be seen in the context of the com- capital, although it lacked any direct pletion of the internal market at the end of impact. The original signatories of the 1992. The internal market, according to the Treaty did not think the time was ripe for then Article 7a of the EEC Treaty, 23 com- the complete liberalisation of capital move- prises an area without internal frontiers in ments. The Member States were to retain which, among other things, the free move- the power to control capital transactions. ment of capital is ensured. The secondary legislation in this field was also limited. Thus, Council Directive 72/156/EEC of 21 March 1972 on regulat- ing international capital flows and neutra- lising their undesirable effects on domestic liquidity 22 provided for coordinating meas- 49. The entry into force of the Maastricht ures in relation to exceptionally large Treaty marked the beginning of the third capital movements. phase. The directly applicable Article 56 was included in the EC Treaty. The free movement of capital became — compared with the other freedoms defined in the EC Treaty — a full freedom. This completely free movement of capital was a precon- dition for the establishment of Economic and Monetary Union.

Euro Zone, public-law restrictions on capi- have been removed, the activities of oper- tal transactions are no longer conceivable. ators on the capital market are still subject A single money and capital market has to national legislation. emerged. Under Article 105 EC monetary policy has been removed from the Member States' responsibility and is now pursued at the level of the Union. Within this frame- work legislation on capital flows — in part as a result of the establishment of the European Central Bank — is necessarily adopted and supervised at Community level. 54. The activities of individual financial institutions, for example, are supervised at national level. In addition, national legis- lation governing financial markets results from the interest in maintaining public order in the areas of, say, insider dealing in shares and money-laundering. The 52. By this I do not mean that the move- Member States are also permitted to main- ment of capital is completely free in prac- tain domestic tax legislation. Article 58 EC tice. As an example I refer to the obstruc- leaves the Member States scope for this. tion of free movement that was at issue in Paragraph 3 of this article emphasises that the Svensson and Gustavsson case. 24 The such measures 'shall not constitute a means Court ruled that a requirement in Lux- of arbitrary discrimination or a disguised embourg law that a loan for the financing restriction on the free movement of capital of the construction, purchase or improve- and payments'. ment of housing be obtained from a credit institution approved in that Member State was incompatible with Community law. However, there is still much private-law legislation that requires financing by a credit institution in the same Member State. While legislation of this kind may infringe competition law, it is of no rel- evance to the cases here under discussion.

The other freedoms 58. I would also refer to the following. As I explained in my Opinion in the Baumbast case, 28 the rules in the EC Treaty govern- ing the free movement of persons primarily concern travel to and residence in another Member State for the purpose of undertak- 56. I now turn to the free movement of ing an economic activity. With regard to persons, of which I will consider the free- the provisions of the Salzburger Grund- dom to provide services to be part in this verkehrsgesetz of 1997 this means, among context. In its judgment in Commission v other things, that, although they are not Greece 25the Court ruled that the right to directed primarily at persons wishing to acquire, use and dispose of immovable undertake an economic activity related to property on the territory of another work in Austria, a Member State, they do Member State is the corollary of the free- concern the exercise of economic activities. dom of movement. In other words, this In my Opinion in Baumbast I also indicated right makes an essential contribution to the that the importance and scope of the free actual achievement of the free movement of movement of persons have grown appreci- persons within the European Union. ably over the years. This is certainly true of the period since the adoption of the Maas- tricht Treaty, when a generally worded right of movement and residence for the citizens of the Union was included in the EC Treaty (Article 18 EC). The possible direct effect of Article 18 EC will not be 57. In its judgment in Konle 26 the Court discussed further, but the increasingly refers to the freedom of establishment of broad interpretation of the right to move nationals of the Member States. The and reside within the European Union description of the Salzburger Grundver- means that this right may also embrace kehrsgesetz of 1997 in section V of this the occupancy of a secondary residence. Opinion leads me to believe that in this instance the freedom to provide services is of primary importance. I recall that the use of a secondary residence by the owner himself is often accompanied by the provi- sion of services for him and that since the judgment in Luisi and Carbone 27 it has been clear that the freedom to provide Concurrence of the free movement of services includes the freedom of the person capital and the freedom to provide services for whom services are provided. In addi- tion, the owner of the residence, who may or may not let it within the framework of professional activities, is himself a provider of services. 59. Since the judgment in Svensson and Gustavsson 29 it has been clear that the free

2. Where the right of establishment is directly restricted such that the ensuing obstacle to establishment leads indi- rectly to a reduction of capital flows 61. In its judgment in Konle 32 the Court between Member States, only the rules also assumed that two of the freedoms on the right of establishment apply. emanating from the Treaty were appli- cable, that is to say, the freedom of establishment as well as the free movement of capital. Then — without further expla-

30 —Judgment in Case C-118/96 [1998] ECR I-1897. 31 — See also the similar judgment in this respect in Case C-410/96 Ambry [1998] ECR I-7875. 32 — Cited in footnote 2. 33 — Opinion in Case C-251/98 [2000] ECR I-2787.

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3. Where there is direct intervention 65. The judgment in Safir, which followed affecting both the free movement of this Opinion, makes no reference to this capital and the right of establishment, method of application. None the less, I both fundamental freedoms apply, and believe that Advocate General Tesauro the national measure must satisfy the gives an appropriate explanation of the requirements of both.' criterion of 'direct intervention'. The line he proposes forms a good point of depar- ture for the assessment of the cases here at issue.

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freedoms from the sentence quoted secondary residences. To this end, it above. 36 This is also evident from the chooses the acquisition of immovable prop- solutions chosen by the Court in cases of erty as its point of departure. It does not, concurrence in the judgments in Svensson however, address the investment of capital and Gustavsson and Safir, 37 for example. in immovable property. Nor does it address the transfer of capital from one Member State to another. Anyone, whether an Austrian national or a national of another Member State or another country belong- ing to the European Economic Area, may, according to the legislation, invest capital Concurrence in the case of transactions in immovable property in the Land of involving immovable property Salzburg. The only restriction is that the immovable property may not be used for a secondary residence.

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primarily constitutes a non-monetary the purpose. Secondly, and more import- restriction on the freedom to provide ser- antly in this context, the acquisition of vices. immovable property therefore always includes an element of investment. How- ever, this does not in itself mean that the emphasis is placed on the free movement of capital. After all, as I have already stated, the provisions of the Salzburger Grund- 72. The capital transaction can be assessed verkehrsgesetz of 1997 do not seek to in much the same way as any other regulate capital transactions — investment payment made in consideration for a ser- in immovable property — but are aimed at vice provided. I refer to the judgment in economic activities to which the freedom to Luisi and Carbone, 40 in which the Court provide services applies. There is no more drew a distinction between current pay- than an indirect relationship with the free ments and the movement of capital: '... movement of capital. current payments are transfers of foreign exchange which constitute the consider- ation within the context of an underlying transaction, whilst movements of capital are financial operations essentially con- cerned with the investment of the funds in 74. In these circumstances it would be question rather than remuneration for a wrong for the Court's decision in the Konle service.... Consequently, payments in con- case 41 to focus solely on the free movement nection with tourism or travel for the of capital to be followed in the present purposes of business, education or medical cases also: the freedom to provide services treatment cannot be classified as move- is primarily at issue here. ments of capital....' This judgment was, moreover, delivered under the old rules governing the movement of capital and payments, which were amended by the Maastricht Treaty, but this does not detract from its scope.

tions on the question of whether the pro- connection with European law and that the ceedings are purely internal in nature. The relevant provisions of the EC Treaty have Netherlands Government refers to the already been clarified in the judgment in Court's case-law concerning the free move- Konle. 43 The conditions governing the ment of goods and persons, from which it submission of questions for a preliminary follows that it is for the national courts to ruling have therefore not been satisfied. decide whether or not to submit questions for a preliminary ruling. The Court will reject a request from a national court only if the national proceedings have no con- nection whatsoever with Community law. There is no reason to apply other criteria in the case of the free movement of capital — the subject in which the requesting court in the present cases is interested. This does not General framework alter the fact that Article 56 EC applies only to situations which have a cross- border element. The Commission asks the basic question whether this case-law, which restricts the applicability of Community law, is compatible with the internal market. 77. The Court has frequently considered It concludes that the cases here under the possibility of questions submitted for a discussion are unsuitable for an answer to preliminary ruling being purely internal. this question. In its view, the obligation to Before taking a closer look at the Court's consider questions submitted for a prelimi- decisions on various aspects of Community nary ruling is very wide-ranging. According law, I shall briefly outline the framework to the Commission's interpretation of the within which this issue should be placed. Court's case-law, an answer is to be pro- vided if a connection with Community law cannot be excluded. 42 In the context of the cases here under discussion the Commis- sion refers to a judgment of the Austrian Constitutional Court of 26 February 1999 which prohibits discrimination against Austrian nationals. 78. According to settled case-law, it is for the national court to decide whether it considers it appropriate for a request for a preliminary ruling to be submitted to the Court of Justice. 44 The latter is obliged to reply unless it is quite obvious that the interpretation of Community law sought by 76. The applicant in the main proceedings the national court bears no relation to the in the GWP Gewerbeparkentwicklung actual facts of the action or its purpose or GmbH case (C-524/99) goes one step where the problem is hypothetical and the further: it claims that the action has no Court does not have before it the factual or

79. Again according to settled case-law, the Treaty provisions concerning free move- 82. If it is the substance of the national ment (of persons and goods) do not apply measure that is decisive, the Court should to activities all of the relevant aspects of consider how far the national legislation which are confined to one Member State. may have an external effect. Only if there is The Court regards these as being purely no — potential — external effect should internal affairs of a Member State because the Court refrain from answering the of the absence of any connection with question referred to it. The next step — if situations governed by Community law. 46 the Court is entitled to give an answer — is to assess the substance of the disputed national legislation. A question that may arise at this stage is whether an individual may also assert claims against his own Member State under Community law. It is ultimately for the — national — court 80. The two — in principle, separate — involved in the main proceedings to rule sets of decisions of the Court define the on an applicant's claims in the case con- framework within which the following cerned. It does so — as far as possible — comments should be read. The main ques- with due regard for the answer it receives tion is this: is it the facts in the main from the Court to the question submitted proceedings that determine whether the for a preliminary ruling. Court must answer the questions referred to it for a preliminary ruling, or is it the nature and substance of the national meas- ure?

22 However, that finding does not mean that there is no need to reply to the question referred to the Court for a '... whilst the application of a national preliminary ruling in this case.... measure having no actual link to the... importation of goods does not fall within the ambit of Article 30 of the Treaty... , Article 30 cannot be considered inappli- cable simply because all the facts of the specific case before the national court are 23 In this case, it is not obvious that the confined to a single Member State. interpretation of Community law requested is not necessary for the 48 — Judgment in Joined Cases C-321/94 to C-324/94 [1997] national court. Such a reply might be ECR I-2343, particularly paragraphs 44 and 45. Advocate useful to it if its national law were to General Jacobs had, moreover, proposed in this case that the question concerning Article 30 should not be require, in proceedings such as those in answered, given the purely internal nature of the facts.

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51 — In his Opinion of 9 March 2000 in the Guimont Case (cited in footnote 9) he also advocates that a substantive answer should not be given to the question submitted for a 49 —Judgment in Case 298/87 [1988] ECR 4489, paragraphs 8 preliminary ruling. and 9. 52 — Cited in footnote 9.

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nationals as compared to nationals or other the questions referred to it by the respective countries — may in itself be sufficient for national courts. To quote from the judg- a reply to be given to a question submitted ment in USSL n° 47 di Biella: 53 'According for a preliminary ruling. Where national to settled case-law, Articles 48, 52 and 59 law prohibits reverse discrimination, a of the Treaty cannot be applied to activities national court will, after all, need an inter- which are confined in all respects within a pretation of the claims that nationals of single Member State.' This case concerned other Member States are entitled to assert a service organisation which had its regis- under Community law if it is to be able to tered office in Italy and provided services determine whether the case before it for a government body similarly established involves reverse discrimination. in Italy.

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freedoms is that it is quick to recognise a case-law. Where the free movement of cross-border element bringing a case within goods is at issue, it is the nature and the ambit of Community law. I refer in this substance of the national measure that regard to a number of cases in which a determine whether the Court must answer national claimed before a court of his own questions referred to it for a preliminary Member State that Community law was ruling, whereas it is the facts in the main applicable because national legislation did proceedings that are decisive in the case of not recognise the diplomas or professional the freedom (inter alia) to provide services. experience which he had acquired in As the Salzburger Grundverkehrsgesetz of another Member State. 55 1997 concerns the freedom to provide services, the facts in the main proceedings must be considered. Assuming that there are no cross-border elements, 57 the Court might decide not to answer the questions referred to it or to give a general answer as 94. I would also refer to the judgment in in its judgment in USSL n° 47 di Biella. 58 Angonese, 56 a case in which an Italian national had objected to Italian rules on admission to a certain recruitment compe- tition. The Court ruled: 'Whether or not the reasoning of the order for a reference... is well founded, it is far from clear that the interpretation of Community law it seeks 96. It is my view that the Court should not has no relation to the actual facts of the pursue this line of argument, but should case or to the subject-matter of the main seek to follow on from its judgment in action.' The Court did not find it necessary Guimont concerning the free movement of in that case to base its obligation to reply goods. 59 I base this view on the following on the — unmistakable — existence of a considerations. cross-border element in the main proceed- ings: the complaint concerned the non- recognition of linguistic proficiency acquired abroad.

link is also forged with the Court's settled 101. These factors lead me to conclude that case-law 60 stating that it is principally for the Court must answer the questions national courts alone to decide whether referred to it in the cases at issue. I attach Community law needs to be interpreted in no importance in this regard to the possi- a national dispute. bility that all the parties in the main proceedings are resident in Austria. The determining factor is that the nature and substance of the Salzburger Grundver- kehrsgesetz of 1997 are such that it may have an external effect and may therefore, actually or potentially, obstruct free move- ment. It is, after all, common ground that the legislation imposes restrictions on the 99. Third, there is no reason for a dif- acquisition of immovable property. ference of approach as between the free movement of goods and the freedom to provide services. Just like the movement of goods, the provision of services has become extensively cross-border in nature.

Alternative submission: the free movement of capital

107. The actual investment may well be made by an Austrian resident in relation to land located in Austria. There may then be said to be an internal situation, which may, furthermore, not fall within the scope of Article 56 EC, at least if the nomenclature 105. I consider this unity to be similar to in Annex I to Directive 88/361, which is that which has existed for a longer time in meant to be indicative, is taken literally. the Community customs area. In this con- However, the legislation at issue, which nection the Court stated in its judgment in seeks to counter the use of secondary Lancry and Others that 'since the very residences in tourist areas, is not aimed at principle of a customs union covers all internal situations. What I have said about trade in goods, as provided for by Article 9 this in the context of the freedom to of the Treaty [now Article 23 EC], it provide services (see point 100 of this requires the free movement of goods gen- Opinion) applies here without qualifi- erally, as opposed to inter-State trade cation. alone, to be ensured within the Union.' 61

106. I would also refer to the following. 108. The second element of which the The presence of cross-border elements movement of capital consists is, as I have inevitably results from the factual and the said, the financing of the investment. An legal context of these cases, which concern investment in immovable property is often transactions in immovable property. In this financed externally, by means of a mort- regard I draw a distinction between two gage, for example. I refer in this connection elements in the movement of capital, both to the judgment in Trummer and Mayer, 62 of which may play a part in the cases here in which the Court stated that the financing under discussion. The first is the actual of an investment, such as a mortgage, comes within the scope of Article 56 EC

114. In my view, the question whether Austrian nationals may assert claims under 111. In those circumstances I take the view Community law should be left — with due that it is at the discretion of the national court to submit questions for a preliminary ruling if it feels that the free movement of 63 — See, for example, the judgment in Case C-124/97 Läärä capital is at issue. and Others [19991 ECR I-6067, paragraph 27.

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regard for the Court's case-law — to the residences to be limited, a goal pursued national court in this instance. The Com- under the regional planning policy. mission's comments on the cases here under discussion reveal that Austrian national law prohibits discrimination against Austrian nationals vis-à-vis foreigners ('reverse dis- crimination'). For this reason Austrian nationals may, under national law, have an interest in invoking Community law. 117. In Konle the Court ruled that this objective may in itself justify a restriction of the free movement of capital. It came to the conclusion, however, that the instrument chosen, namely prior authorisation, imposed too severe a restriction on free 115. If it should examine the Salzburger movement. According to the Court, the Grundverkehrsgesetz of 1997 in the light of need for such a procedure had not been the free movement of capital, the Court demonstrated in the case. 65 may adopt the following premiss: the unity of the capital market within the Economic and Monetary Union means that Austrian nationals too may invoke Community law.

OPINION OF MR GEELHOED — JOINED CASES C-515/99 AND C-527/99 TO C-540/99 AND JOINED CASES C-519/99 TO C-524/99 AND C-526/99 erty concerned from being acquired as a procedure also has the advantage of letting secondary residence.' them know in good time where they stand, even as regards possible subsequent sanc- tions for illegal use of the property. In the Austrian Government's view, the procedure is consistent with European law. Mr Schäfer, the applicant in Case 119. In view of these 'other possibilities at C-519/99, does not share this view. Refer- the disposal of the Member State concerned ring to the judgment in Konle, he claims for ensuring compliance with its town and that subsequent checks, for which the Law country planning guidelines' and 'given the also provides, are sufficient. risk of discrimination inherent in a system of prior authorisation for the acquisition of land', the requirement of prior authori- sation goes too far, according to the judg- ment in Konle. 122. If it is entitled to answer the questions referred to it, the Court must assess the acceptability of this notification and auth- orisation procedure, which appears to lie, 120. The cases here under discussion con- in terms of severity, between the prior cern national legislation which, at first declaration that the Court appears to have sight, entails a less severe restriction of free accepted in the judgment in Konle and the movement. In the case of this notification prior authorisation that could not pass the and authorisation procedure, the court test of Community law. requesting a preliminary ruling claims, it is normally enough for the acquirer of building land to make a declaration to the appropriate authority as to the future use of the land. The authority is obliged to accept the declaration unless it has good reason to doubt it. Only then is a procedure similar to the prior authorisation referred to in the The Salzburger Grundverkehrsgesetz of Konle judgment set in motion. Such auth- 1997 orisation may, moreover, have conditions and requirements attached and may be subject to the lodging of security. 123. The provisions of the Salzburger Grundverkehrsgesetz of 1997 should be assessed on the basis of the Court's settled case-law, as set out, for example, in its 121. The Austrian Government points out judgment in Gebhard: 66 'national meas- in its written observations that this pro- ures liable to hinder or make less attractive cedure is the least onerous option for the exercise of fundamental freedoms guar- achieving the intended objective. For acquirers of immovable property about 66 — Judgment in Case C-55/94 [1995] ECR I-4165, paragraph whom there are doubts the authorisation

124. The following conclusions can be 128. In the case of the fourth condition I drawn from an appraisal of the Salzburger believe the following to be of primary Grundverkehrsgesetz of 1997 in the light of importance: formalities prior to the acquisi- those four conditions. tion of immovable property do not necess- arily form a more serious restriction than subsequent checks. Immovable property is generally acquired with the aim of retaining possession for some considerable time. Its acquisition is subject to formal require- 125. The first condition is easily satisfied. ments in all national private-law systems, The legislation applies equally to Austrian such as a notarial act and entry in a public nationals and to nationals of other Member register. These formal requirements are States and of other countries forming part intended to establish the necessary legal of the European Economic Area. certainty both for the acquirer and for any interested third parties. Of particular inter- est to the acquirer is that he should have the certainty of obtaining and retaining pos- session and of having unhindered enjoy- ment of the immovable property. 126. Of crucial importance for an assess- ment of the second condition is the fact that in its judgment in Konle the Court recog- nised as imperative reasons in the general interest 'a town and country planning objective such as maintaining, in the gen- eral interest, a permanent population and an economic activity independent of the tourist sector in certain regions'. 67 I would 129. The procedure defined in the add that nature protection in certain Salzburger Grundverkehrsgesetz provides regions may also be a justified objective in the acquirer of immovable property with the area of regional planning. legal certainty. Once the notification and authorisation procedure has been com- pleted, he can assume that he may continue 67 — Cited in footnote 2, paragraph 40. to use the immovable property unhindered.

131. The situation is different when it 133. In brief, if the power to impose con- comes to the details of the actual auth- ditions and requirements or to require the orisation procedure. Pursuant to Paragraph deposit of a security is necessary — which, 19 of the Salzburger Grundverkehrsgesetz in my view, is by no means certain — it of 1997, authorisation may be made sub- should at least be subject to strict con- ject to conditions and requirements to straints.

68 — Cited in footnote 2. 69 — Judgment in Konle (cited in footnote 2, paragraph 44).

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REISCH AND OTHERS

DC — Conclusion

134. In view of the above considerations I propose that the Court should answer the questions submitted by the Unabhängiger Verwaltungssenat in Salzburg as follows: