Judgment of the Court (First Chamber) of 8 May 2013 (requests for a preliminary ruling from the Cour constitutionnelle – Belgium) – Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele v Gouvernement flamand (C-197/11), All Projects & Developments NV and Others v Vlaamse Regering (C-203/11)
(Joined Cases C-197/11 and C-203/11) 1
(Fundamental freedoms – Restriction – Justification – State aid – Concept of ‘public works contract’ – Land and buildings located in certain communes – National legislation making the transfer of land and buildings subject to the condition that there exists a ‘sufficient connection’ between the prospective buyer or tenant and the target commune – Social obligation on subdividers and developers – Tax incentives and subsidy mechanisms)
Languages of the case: French and Dutch
Referring court
Cour constitutionnelle
Parties to the main proceedings
(Case C-197/11)
Applicants: Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele
Defendant: Gouvernement flamand
intervening parties: Collège de la Commission communautaire française, Gouvernement de la Communauté française, Conseil des ministres
(Case C-203/11)
Applicants: All Projects & Developments NV and Others
Defendant: Vlaamse Regering
intervening parties: College van de Franse Gemeenschapscommissie, Franse Gemeenschapsregering, Ministerraad, Immo Vilvo NV, PSR Brownfield Developers NV
Re:
(Case C-197/11)
Request for a preliminary ruling – Cour constitutionnelle – Interpretation of Articles 21, 45, 49, 56 and 63 TFEU and Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) – Compatibility of those provisions with regional legislation under which the sale or lease of land and buildings thereon located in certain communes is conditional upon the prospective purchaser or lessee having a sufficient connection with the commune concerned – Infringement of the right to freedom of movement and residence in the territory of Member States – General interest objective – Principle of proportionality
(Case C-203/11)
Request for a preliminary ruling – Grondwettelijk Hof – Interpretation of Articles 21, 45, 49, 56, 63, 107 and 108 TFEU and Article 86(2) EC – Interpretation of Article 1(2)(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), of Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p.77) and of Articles 2(2)(a) and (j), 4(6), and 9, 14 and 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) – State aid – Regional legislation on land and real estate policy – Social housing – Public works contracts – Freedom of establishment – Freedom to provide services – Restrictions
Operative part of the judgment
Articles 21 TFEU, 45 TFEU, 49 TFEU, 56 TFEU and 63 TFEU and Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC preclude legislation, such as Book 5 of the Decree of the Flemish Region of 27 March 2009 on land and real estate policy, which makes the transfer of immovable property in the target communes designated by the Vlaamse Regering subject to verification, by a provincial assessment committee, that there exists a ‘sufficient connection’ between the prospective buyer or tenant and those communes.
Article 63 TFEU must be interpreted as not precluding legislation such as Book 4 of the Decree of the Flemish Region, according to which a ‘social obligation’ is imposed on some economic operators when a building or land subdivision authorisation is granted, in so far as the referring court finds that that legislation is necessary and appropriate to attain the objective of guaranteeing sufficient housing for the low-income or otherwise disadvantaged sections of the local population.
The tax incentives and subsidy mechanisms provided for in the Flemish Decree are liable to be classified as State aid within the meaning of Article 107(1) TFEU. It is for the referring court to determine whether the conditions relating to the existence of State aid are met and, if so, to ascertain whether, as regards the measures established in Book 4 of the Flemish Decree whereby compensation is provided for the social obligation to which subdividers and developers are subject, Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) [EC] to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest is nevertheless applicable to such measures.
The development of social housing units which are subsequently to be sold at capped prices to a public social housing institution, or with substitution of that institution for the service provider which developed those units, is covered by the concept of ‘public works contract’ contained in Article 1(2)(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009, where the criteria set out in that provision have been met, a matter which falls to be determined by the referring court.
____________1 OJ C 211, 16.7.2011.
OJ C 219, 23.7.2011.