JUDGMENT OF THE COURT
1 June 1999 (1)
(Freedom of establishment Free movement of capital Articles 52 of the EC
Treaty (now, after amendment, Article 43 EC) and 56 EC (ex Article 73b)
Authorisation procedure for the acquisition of immovable property Article 70
of the Act concerning the conditions of accession of the Republic of Austria
Secondary residences Liability for breach of Community law)
In Case C-302/97,
REFERENCE to the Court under Article 234 EC (ex Article 177) by the
Landesgericht für Zivilrechtssachen Wien (Austria) for a preliminary ruling in the
proceedings pending before that court between
Klaus Konle
and
Republic of Austria
on the interpretation of Articles 10 EC (ex Article 5), 6 of the EC Treaty (now,
after amendment, Article 12 EC), 52, 54, 56 and 57 of the EC Treaty (now, after
amendment, Articles 43 EC, 44 EC, 46 EC and 47 EC), 53 of the EC Treaty
(repealed by the Treaty of Amsterdam), 45 EC and 48 EC (ex Articles 55 and 58),
56 EC to 60 EC (ex Articles 73b to 73d, 73f and 73g), 73e and 73h of the EC
Treaty (repealed by the Treaty of Amsterdam), and Article 70 of the Act
concerning the conditions of accession of the Republic of Austria, the Republic of
Finland and the Kingdom of Sweden and the adjustments to the Treaties on which
the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet
(Rapporteur), G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini,
J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray, D.A.O. Edward,
H. Ragnemalm, L. Sevón and M. Wathelet, Judges,
Advocate General: A. La Pergola,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
Mr Konle, by A. Fuith, Rechtsanwalt, Innsbruck,
the Republic of Austria, by M. Windisch, Oberkommissär at the
Finanzprokuratur, acting as Agent,
the Austrian Government, by C. Stix-Hackl, Gesandte in the Federal
Ministry of Foreign Affairs, acting as Agent,
the Greek Government, by A. Samoni-Rantou, Special Legal Adviser to the
Special Department for Community Legal Affairs, Ministry of Foreign
Affairs, and S. Vodina and G. Karipsiadis, Special Scientific Assistants in the
same department, acting as Agents,
the Spanish Government, by N. Díaz Abad, Abogado del Estado, acting as
Agent,
the Commission of the European Communities, by C. Tufvesson and V.
Kreuschitz, Legal Advisers, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of: Mr Konle, represented by A. Fuith; the
Republic of Austria, represented by M. Windisch; the Austrian Government,
represented by C. Stix-Hackl, assisted by J. Unterlechner, Consultant to the Office
of the Land Government; the Greek Government, represented by A.
Samoni-Rantou; the Spanish Government, represented by M. López-Monís Gallego,
Abogado del Estado, acting as Agent; and the Commission, represented by
C. Tufvesson and V. Kreuschitz, at the hearing on 1 December 1998,
after hearing the Opinion of the Advocate General at the sitting on 23 February
1999,
gives the following
Judgment
- 1.
- By order of 13 August 1997, received at the Court on 22 August 1997, the
Landesgericht für Zivilrechtssachen (Regional Civil Court), Vienna, referred to the
Court for a preliminary ruling under Article 234 EC (ex Article 177) four questions
on the interpretation of Articles 10 EC (ex Article 5), 6 of the EC Treaty (now,
after amendment, Article 12 EC), 52, 54, 56 and 57 of the EC Treaty (now, after
amendment, Articles 43 EC, 44 EC, 46 EC and 47 EC), 53 of the EC Treaty
(repealed by the Treaty of Amsterdam), 45 EC and 48 EC (ex Articles 55 and 58),
56 EC to 60 EC (ex Articles 73b to 73d, 73f and 73g), 73e and 73h of the EC
Treaty (repealed by the Treaty of Amsterdam), and Article 70 of the Act
concerning the conditions of accession of the Republic of Austria, the Republic of
Finland and the Kingdom of Sweden and the adjustments to the treaties on which
the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1, 'the
Act of Accession).
- 2.
- Those questions were raised in the context of an action brought by Mr Konle, a
German national, against the Republic of Austria for damages for the loss
sustained by him as a result of the alleged infringement of Community law by the
Tyrol legislation on land transactions.
The relevant national legislation
- 3.
- The Tiroler Grundverkehrsgesetz 1993 (Tiroler LGBl. 82/1993; Tyrol Law on the
Transfer of Land, 'the TGVG 1993), adopted by the Tyrol in respect of transfers
of land there, entered into force on 1 January 1994 and was replaced, with effect
from 1 October 1996, by the Tiroler Grundverkehrsgesetz 1996 (Tiroler LGBl.
61/1996; 'the TGVG 1996).
- 4.
- According to Sections 9(1)(a) and 12(1)(a) of the TGVG 1993, acquisition of the
ownership of building land is subject to authorisation by the authority responsible
for land transactions.
- 5.
- Section 14(1) of the TGVG 1993 provides that authorisation 'shall be refused, in
particular where the acquirer fails to show that the planned acquisition will not be
used to establish a secondary residence.
- 6.
- However, Section 10(2) of the TGVG 1993 states that authorisation 'is not ...
required where the right acquired relates to land which has been built on and the
acquirer makes a written declaration to the authority responsible for land
transactions that he has Austrian nationality and that the acquisition will not be
used to establish a secondary residence.
- 7.
- Furthermore, under Section 13(1) of the TGVG 1993, authorisation may be granted
to a foreigner only on condition that the intended purchase does not conflict with
the policy interests of the State and there is an economic, cultural or social interest
in acquisition by the foreigner. That rule is not, however, applicable where it is
precluded by obligations under international agreements (Section 13(2) of the
TGVG 1993).
- 8.
- Under Section 3 of the TGVG 1993, which, unlike the remainder of the Law, did
not enter into force until 1 January 1996, the condition for granting authorisation
laid down in Section 13(1) is also inapplicable where the foreign acquirer furnishes
proof that he is exercising one of the freedoms guaranteed by the Agreement on
the European Economic Area.
- 9.
- By judgment of 10 December 1996, when the TGVG 1993 was already no longer
in force, the Verfassungsgerichtshof (Constitutional Court) held that the Law was
unconstitutional in its entirety since it involved an excessive infringement of the
fundamental right to property.
- 10.
- The TGVG 1996 abolished the declaration procedure which had previously been
limited to Austrian nationals alone and thus extended to all acquirers, by Sections
9(1)(a) and 12(1), the obligation to apply for administrative authorisation prior to
the acquisition of land.
- 11.
- Sections 11(1)(a) and 14(1) of that Law maintain the obligation for the acquirer to
show that the acquisition will not be used to create a secondary residence.
- 12.
- Additional conditions are still imposed on foreigners by Section 13(1)(b) of the
TGVG 1996 for the acquisition of land, although they are not applicable, pursuant
to Section 3 of the TGVG 1996, where the foreign acquirer furnishes proof that he
is exercising one of the freedoms guaranteed by the EC Treaty or the Agreement
on the European Economic Area.
- 13.
- Finally, Section 25(2) of the TGVG 1996 provides for an accelerated procedure
allowing authorisation for the acquisition of land which is built on to be granted
within two weeks if the conditions for authorisation are clearly satisfied.
The relevant Community legislation
- 14.
- Article 70 of the Act of Accession provides:
'Notwithstanding the obligations under the Treaties on which the European Union
is founded, the Republic of Austria may maintain its existing legislation regarding
secondary residences for five years from the date of accession.
The main proceedings
- 15.
- In the context of a procedure for compulsory sale by auction, the Bezirksgericht
Lienz (Lienz District Court) allocated on 11 August 1994 a plot of land in the Tyrol
to Mr Konle on condition that he obtain the administrative authorisation required
under the TGVG 1993 then in force.
- 16.
- On 18 November 1994, the Bezirkshauptmannschaft Lienz (Lienz District
Administration) rejected Mr Konle's application for authorisation, although he
stated that he intended to transfer his principal residence to Austria and carry on
business there within the framework of the undertaking that he was already running
in Germany. Mr Konle appealed to the Landes-Grundverkehrskommission beim
Amt der Tiroler Landesregierung (Land Transfer Commission to the Office of the
Tyrol Land Government, 'the LGvK) which, by decision of 12 June 1995, upheld
the refusal to grant authorisation.
- 17.
- Mr Konle instituted proceedings against that decision, both before the
Verwaltungsgerichtshof (Administrative Court), which dismissed the action by
judgment of 10 May 1996, and before the Verfassungsgerichtshof, which, by
judgment of 25 February 1997, set aside the decision of 12 June 1995 on the
ground that the whole of the TGVG 1993 had been declared unconstitutional. The
effect of the latter judgment was to bring Mr Konle's application for authorisation
back before the LGvK.
- 18.
- Without awaiting the LGvK's new decision on his application, Mr Konle also
brought an action against the Republic of Austria before the Landesgericht für
Zivilrechtssachen to establish the liability of the State for breach of Community law
by the provisions of both the TGVG 1993 and the TGVG 1996.
- 19.
- In its defence, the Republic of Austria has relied, in particular, on Article 70 of the
Act of Accession.
- 20.
- In those circumstances, the Landesgericht für Zivilrechtssachen Wien took the view
that the solution of the dispute required an interpretation of the relevant provisions
of the Treaty and the Act of Accession and referred the following questions to the
Court of Justice for a preliminary ruling:
'1. Does it follow from the interpretation of Article 6 of the EC Treaty, Article
52 et seq. (Part Three, Title III, Chapter 2) of the EC Treaty and Article
73b et seq. (Part Three, Title III, Chapter 4) of the EC Treaty and Article
70 of the Act of Accession (Act concerning the conditions of accession of
... the Republic of Austria ... and the adjustments to the treaties on which
the European Union is founded) that
(a) in that, while the TGVG 1993 was in force, the plaintiff was required
to prove that he would not establish a holiday residence, whereas in
the case of an acquisition by an Austrian a mere declaration under
Section 10(2) would have sufficed to obtain the authorisation of the
land transactions authority, and he was refused such authorisation,
and
(b) in that, under the TGVG 1996, the plaintiff, even before his property
right is entered in the land register, must as is now also the case for
Austrians undergo an authorisation procedure, the possibility of
making an effective declaration that no holiday residence is being
created no longer existing for Austrians either,
Community law was infringed and the plaintiff injured in respect of a
fundamental freedom guaranteed by provisions of Community law?
2. If Question 1 is answered in the affirmative, is it for the Court of Justice in
proceedings under Article 177 of the EC Treaty also to decide whether a
breach of Community law is sufficiently serious (as the phrase is used, for
example, in the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du
Pêcheur and Factortame)?
3. If Questions 1 and 2 are answered in the affirmative, is the breach
sufficiently serious?
4. Is the principle of the liability of Member States for the damage caused to
an individual by breaches of Community law complied with, on a proper
interpretation of Article 5 of the EC Treaty, if the national law on liability
of a Member State with a federal structure lays down that in the case of
infringements attributable to a part of the State, the injured party may claim
only against that part of the State, not the State as a whole?
The first question
- 21.
- By its first question, the national court seeks essentially to ascertain whether the
freedom of establishment and free movement of capital guaranteed by the Treaty
are ensured by schemes, such as those under the two national laws at issue in the
main proceedings, which make acquisition of land subject to prior administrative
authorisation and which, in the case of one of those laws, exempt only nationals of
the Member State concerned from the authorisation otherwise required. If the
answer in respect of either scheme is in the negative, the national court also asks,
in substance, whether the derogating clause in Article 70 of the Act of Accession,
which allows the Republic of Austria to maintain its existing legislation regarding
secondary residences for five years, is such as to permit national provisions such as
those at issue in the main proceedings.
- 22.
- First of all, it is common ground that national legislation on the acquisition of land
must comply with the provisions on the Treaty on freedom of establishment for
nationals of Member States and the free movement of capital. The Court has
already held that, as is apparent from Article 54(3)(e) of the Treaty, the right to
acquire, use or dispose of immovable property on the territory of another Member
State is the corollary of freedom of establishment (Case 305/87 Commission v
Greece [1989] ECR 1461, paragraph 22). As for capital movements, they include
investments in real estate on the territory of a Member State by non-residents, 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 (OJ 1988 L 178, p. 5).
The scheme established under the TGVG 1993
- 23.
- Section 10(2) of the TGVG 1993, which exempts only Austrian nationals from
having to obtain authorisation before acquiring a plot of land which is built on and
thus from having to demonstrate, to that end, that the planned acquisition will not
be used to establish a secondary residence, creates a discriminatory restriction
against nationals of other Member States in respect of capital movements between
Member States.
- 24.
- Such discrimination is prohibited by Article 56 EC, unless it is justified on grounds
permitted by the Treaty.
- 25.
- In this case, the Republic of Austria relies exclusively on Article 70 of the Act of
Accession to justify the maintenance beyond the date of its accession, in the Land
of Tyrol, of different schemes for the acquisition of land depending on the
nationality of the acquirer, as laid down in the TGVG 1993.
- 26.
- However, as the Court has pointed out in paragraph 9 of this judgment, the TGVG
1993 was declared unconstitutional, at a time when it was already no longer in
force, by a judgment of the Verfassungsgerichtshof of 10 December 1996. That
court then used that judgment as the basis for setting aside the decision of refusal
upheld against Mr Konle by the LGvK.
- 27.
- Determination of the content of the existing legislation regarding secondary
residences on 1 January 1995, the date of the accession of the Republic of Austria,
is, in principle, a matter for the national court. It is, however, for the Court of
Justice to supply it with guidance on interpreting the Community concept of
'existing legislation in order to enable it to carry out that determination.
- 28.
- The concept of 'existing legislation within the meaning of Article 70 of the Act
of Accession 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 the Republic
of Austria at the date of accession is, in principle, covered by the derogation laid
down in Article 70 of the Act of Accession.
- 29.
- 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.
- 30.
- 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.
- 31.
- The answer to the first part of the first question must therefore be that Article 56
EC and Article 70 of the Act of Accession do not preclude a scheme for acquiring
land such as that introduced by the TGVG 1993, unless that Law was deemed not
to form part of the domestic legal system of the Republic of Austria on 1 January
1995.
The scheme established under the TGVG 1996
- 32.
- The Austrian Government contends that the TGVG 1996 was not applied to the
applicant's case before Mr Konle brought his action for damages against the
Republic of Austria and that the question of the compatibility of that Law with
Community law is, therefore, irrelevant to the outcome of the main proceedings.
- 33.
- However, as the Court has consistently held, it can refrain from giving a preliminary
ruling on a question submitted by a national court only where it is quite obvious
that the interpretation or assessment of validity of Community law sought by that
court bears no relation to the actual facts of the main action or 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 Union Royale Belge des Sociétés de Football
Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 61).
- 34.
- Since the TGVG 1996 entered into force before Mr Konle initiated his action for
damages before the national court, it is not obvious that the interpretation of
Community law sought is irrelevant to the assessment of the question whether the
Republic of Austria is liable in respect of the refusal to grant the authorisation
applied for by the applicant in the main proceedings. Furthermore, the question is
not hypothetical and the Court has before it the factual and legal material
necessary to give an answer.
- 35.
- It is therefore necessary to answer the first question submitted for a preliminary
ruling also in so far as it concerns the provisions of the TGVG 1996.
- 36.
- Mr Konle and the Commission submit that the general requirement of
authorisation for the acquisition of land constitutes a restriction on the free
movement of capital, can be applied in a discriminatory manner, is not justified by
overriding reasons in the general interest and is not necessary in order to achieve
the objective pursued, with the result that it is contrary to Article 56 EC.
- 37.
- The Austrian and Greek Governments observe that Article 295 EC (ex Article 222)
leaves the Member States in control of the system of property ownership and that
only a procedure of prior authorisation for the acquisition of land can enable the
national and local authorities to retain control over town and country planning
policies which are pursued in the general interest and which, according to the
Austrian Government, are particularly necessary in a region such as the Tyrol,
where only a very small proportion of the land can be built on.
- 38.
- In that regard, although the system of property ownership continues to be a matter
for each Member State under Article 295 EC, that provision does not have the
effect of exempting such a system from the fundamental rules of the Treaty (see
Case 182/83 Fearon v Irish Land Commission [1984] ECR 3677, paragraph 7).
- 39.
- Accordingly, a procedure of prior authorisation, such as that under the TGVG
1996, which entails, by its very purpose, a restriction on the free movement of
capital, can be regarded as compatible with Article 56 EC only on certain
conditions.
- 40.
- In that regard, to the extent that a Member State can justify its requirement of
prior authorisation by relying on a town and country planning objective such as
maintaining, in the general interest, a permanent population and an economic
activity independent of the tourist sector in certain regions, the restrictive measure
inherent in such a requirement can be accepted only if it is not applied in a
discriminatory manner and if the same result cannot be achieved by other less
restrictive procedures.
- 41.
- As to the first condition, it is not possible for the person seeking authorisation to
provide incontrovertible proof of the future use of the land to be acquired. The
administrative authorities thus have, in determining the probative value of the
information received, considerable latitude which is closely related to a
discretionary power. Furthermore, the explanatory memoranda drawn up by the
administrative authorities of the Land of Tyrol on Section 25 of the TGVG 1996,
which were produced by the applicant in the main proceedings and the significance
of which for the interpretation of the Law has been accepted by the Republic of
Austria, reveal the intention of using the means of assessment offered by the
authorisation procedure in order to subject applications from foreigners, including
nationals of Member States of the Community, to a more thorough check than
applications from Austrian nationals. In addition, the accelerated authorisation
procedure laid down in Section 25(2) is presented in that document as designed to
replace the declaration procedure laid down in Section 10(2) of the TGVG 1993
and reserved for Austrians alone.
- 42.
- As to the second condition, the need for the prior authorisation procedure is not
made out in this case.
- 43.
- Admittedly, as is stated in Article 58 EC, Article 56 EC is without prejudice to the
right of Member States to take all requisite measures to prevent infringements of
national law and regulations.
- 44.
- The Court of Justice has, however, taken the view that provisions making currency
exports conditional upon prior authorisation, in order to allow Member States to
exercise supervision, may not cause the exercise of a freedom guaranteed by the
Treaty to be subject to the discretion of the administrative authorities and thus be
such as to render that freedom illusory (Joined Cases 286/82 and 26/83 Luisi and
Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 34; Joined Cases
C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; and
Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995]
ECR I-4821, paragraph 25). The Court has stated that the restriction on the free
movement of capital resulting from the requirement of prior authorisation could
be eliminated, by virtue of an adequate system of declaration, without thereby
detracting from the effective pursuit of the aims of those rules (see Bordessa and
Others, paragraph 27, and Sanz de Lera and Others, paragraphs 26 and 27).
- 45.
- That reasoning cannot be applied directly to a procedure prior to the acquisition
of immoveable property, since the intervention of the administrative authorities
does not, in that case, pursue the same objective. National administrative
authorities cannot lawfully prevent a transfer of currency, with the result that their
supervision, which reflects essentially a need for information, can also, in that field,
take the form of a compulsory declaration. However, prior verification, in
connection with the acquisition of property ownership, does not reflect merely a
need for information, but can result in a refusal to grant authorisation, without
necessarily being contrary to Community law.
- 46.
- A procedure simply involving a declaration does not, therefore, in itself enable the
aim pursued to be achieved in the context of a procedure for prior authorisation.
In order to ensure that the land is used in accordance with its intended purpose,
as it appears from the national legislation in force, Member States must also be
able to take measures where a breach of the agreed declaration is duly established
after the property has been acquired.
- 47.
- It is sufficient to note in that regard that an infringement of national legislation on
secondary residences such as that at issue in the main proceedings may be
penalised by a fine, by a decision requiring the acquirer to terminate the unlawful
use of the land forthwith under penalty of its compulsory sale, or by a declaration
that the sale is void resulting in the reinstatement in the land register of the entries
prior to the acquisition of the property. Moreover, it is clear from the Austrian
Government's replies to the questions from the Court that Austrian law provides
for mechanisms of that kind.
- 48.
- Furthermore, by adopting the TGVG 1993, the legislature of the Tyrol had itself
acknowledged that prior declaration, established for the benefit of Austrian
nationals, constituted an effective means of supervision capable of preventing the
property concerned from being acquired as a secondary residence.
- 49.
- In those circumstances, given the risk of discrimination inherent in a system of prior
authorisation for the acquisition of land as in this case and the other possibilities
at the disposal of the Member State concerned for ensuring compliance with its
town and country planning guidelines, the authorisation procedure at issue
constitutes a restriction on capital movements which is not essential if infringements
of the national legislation on secondary residences are to be prevented.
- 50.
- The Republic of Austria also contends that Article 70 of the Act of Accession
allows it, in any event, to maintain the provisions of the TGVG 1996 in force until
1 January 2000, by way of derogation.
- 51.
- As the Court stated in paragraph 27 of this judgment, it is, in principle, for the
Austrian courts to determine the content of the national legislation existing at the
date of accession of the Republic of Austria, for the purposes of Article 70 of the
Act of Accession.
- 52.
- 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 if it 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.
- 53.
- 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. That is true of the TGVG 1996 which includes a
number of significant differences when compared with the TGVG 1993 and which,
even if it brings to an end, in principle, the dual scheme of land acquisition which
existed before, does not thereby improve the treatment reserved for nationals of
Member States other than the Republic of Austria, since it also lays down detailed
rules for examining applications for authorisation which are designed, in practice,
as the Court stated at paragraph 41 above, to favour applications from Austrian
nationals.
- 54.
- Accordingly, the relevant provisions of the TGVG 1996 cannot, in any event, be
covered by the derogation laid down in Article 70 of the Act of Accession.
- 55.
- In the light of all the foregoing considerations, there is no need to examine the
questions concerning the interpretation of Articles 6 and 52 of the Treaty.
- 56.
- The answer to the second part of the first question must therefore be that Article
56 EC and Article 70 of the Act of Accession preclude a scheme such as that
introduced by the TGVG 1996.
The second and third questions
- 57.
- By its second question, the national court seeks, in substance, to ascertain whether
it is for the Court of Justice, in proceedings for a preliminary ruling, to assess
whether a breach of Community law is sufficiently serious for a Member State to
incur non-contractual liability vis-à-vis individuals who may be victims of that
breach.
- 58.
- It is clear from the case-law of the Court that it is, in principle, for the national
courts to apply the criteria to establish the liability of Member States for damage
caused to individuals by breaches of Community law (Joined Cases C-46/93 and
C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 58), in
accordance with the guidelines laid down by the Court for the application of those
criteria (Brasserie du Pêcheur and Factortame, paragraphs 55 to 57; Case C-392/93
The Queen v H.M. Treasury, ex parte British Telecommunications [1996] ECR I-1631;
Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and
Others v Federal Republic of Germany [1996] ECR I-4845; and Joined Cases
C-283/94, C-291/94 and C-292/94 Denkavit Internationaal and Others v Bundesamt
für Finanzen [1996] ECR I-5063).
- 59.
- The answer to the second question must therefore be that it is in principle for the
national courts to assess whether a breach of Community law is sufficiently serious
for a Member State to incur non-contractual liability vis-à-vis an individual.
- 60.
- Having regard to the answer given to the second question, there is no need to
answer the third question referred for a preliminary ruling.
The fourth question
- 61.
- By its fourth question, the national court seeks, in substance, to ascertain whether,
in Member States with a federal structure, reparation for damage caused to
individuals by national measures taken in breach of Community law must
necessarily be provided by the federal State in order for the obligations of the
Member State concerned under Community law to be fulfilled.
- 62.
- It is for each Member State to ensure that individuals obtain reparation for damage
caused to them by non-compliance with Community law, whichever public authority
is responsible for the breach and whichever public authority is in principle, under
the law of the Member State concerned, responsible for making reparation. A
Member State cannot, therefore, plead the distribution of powers and
responsibilities between the bodies which exist in its national legal order in order
to free itself from liability on that basis.
- 63.
- Subject to that reservation, Community law does not require Member States to
make any change in the distribution of powers and responsibilities between the
public bodies which exist on their territory. So long as the procedural arrangements
in the domestic system enable the rights which individuals derive from the
Community legal system to be effectively protected and it is not more difficult to
assert those rights than the rights which they derive from the domestic legal system,
the requirements of Community law are fulfilled.
- 64.
- The answer to the fourth question must therefore be that, in Member States with
a federal structure, reparation for damage caused to individuals by national
measures taken in breach of Community law need not necessarily be provided by
the federal State in order for the obligations of the Member State concerned under
Community law to be fulfilled.
Costs
- 65.
- The costs incurred by the Austrian, Greek and Spanish Governments and by the
Commission, which have submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for that
court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Landesgericht für Zivilrechtssachen
Wien by decision of 13 August 1997, hereby rules:
1. Article 56 EC (ex Article 73b) and Article 70 of the Act concerning the
conditions of accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden and the adjustments to the Treaties on which
the European Union is founded:
do not preclude a scheme for acquiring land such as that introduced
by the Tiroler Grundverkehrsgesetz 1993, unless that Law was
deemed not to form part of the domestic legal system of the Republic
of Austria on 1 January 1995;
preclude a scheme such as that introduced by the Tiroler
Grundverkehrsgesetz 1996;
2. It is in principle for the national courts to assess whether a breach of
Community law is sufficiently serious for a Member State to incur non-contractual liability vis-à-vis an individual;
3. In Member States with a federal structure, reparation for damage caused
to individuals by national measures taken in breach of Community law
need not necessarily be provided by the federal State in order for the
obligations of the Member State concerned under Community law to be
fulfilled.
Rodríguez IglesiasKapteyn
Puissochet
Hirsch Jann
Mancini
Moitinho de Almeida Gulmann
Murray Edward
Ragnemalm
Sevón Wathelet
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Delivered in open court in Luxembourg on 1 June 1999.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President