Language of document :

Reference for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 28 April 2011 - nv All Projects & Developments and Others

(Case C-203/11)

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicants:    nv All Projects & Developments

nv Bouw- en Coördinatiekantoor Andries

nv Belgische Gronden Reserve

nv Bouwonderneming Ooms

nv Bouwwerken Taelman

nv Brummo

nv Cordeel Zetel Temse

nv DMI Vastgoed

nv Dumobil

nv Durabrik

nv Eijssen

nv Elbeko

nv Entro

nv Extensa

nv Flanders Immo JB

nv Green Corner

nv Huysman Bouw

bvba Imano

nv Immpact Ontwikkeling

nv Invest Group Dewaele

nv Invimmo

nv Kwadraat

nv Liburni

nv Lotinvest

nv Matexi

nv Novus

nv Plan & Bouw

nv 7Senses Real Estate

nv Sibomat

nv Tradiplan

nv Uma Invest

bvba Versluys Bouwgroep

nv Villabouw Francis Bostoen

nv Willemen General Contractor

nv Wilma Project Development

nv Woningbureau Paul Huyzentruyt

Defendants:    Ministerraad

        Vlaamse regering

        nv Immo Vivo

        nv PSR Brownfield Developers

        College van de Franse Gemeenschapscommissie

        Franse Gemeenschapsregering

Questions referred

Should Articles 107 and 108 of the Treaty on the Functioning of the European Union, whether or not read in conjunction with Commission Decision 2005/842/EC 1 of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, be interpreted as requiring that the measures contained in Articles 3.1.3, 3.1.10, 4.1.20(3)(2), 4.1.21 and 4.1.23 of the Decreet van het Vlaamse Gewest van 27 Maart 2009 betreffende het grond- en pandenbeleid (Decree of the Flemish Region of 27 March 2009 on land and buildings policy) should be notified to the European Commission before the adoption or entry into force of those provisions?

Should a scheme which by law imposes a social obligation on private actors whose land subdivision or building projects are of a certain minimum size, amounting to a percentage of a minimum of 10 per cent and a maximum of 20 per cent of that land subdivision or that building project, which can be performed in kind or by the payment of a sum of [EUR] 50 000 for each social plot or dwelling not realised, be appraised against the freedom of establishment, against the freedom to provide services or against the free movement of capital, or should it be classified as a complex scheme which should be appraised against each of those freedoms?

Having regard to Article 2(2)(a) and (j) thereof, is Directive 2006/123/EC 2 of the European Parliament and of the Council of 12 December 2006 on services in the internal market applicable to a compulsory contribution by private actors to the delivery of social houses and apartments, which is imposed by law as a social obligation linked to every building or land subdivision authorisation sought in respect of a project of a minimum size as determined by law, where the social housing units delivered are bought at predetermined maximum prices by social housing companies to be rented out to a broad category of individuals, or, by substitution, are sold by the social housing company to individuals belonging to the same category?

If the third question referred is answered in the affirmative, should the concept of 'requirement to be evaluated' in Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted as meaning that it covers an obligation on private actors to contribute, in addition to, or as part of their usual activity, to the construction of social housing, and to transfer the developed units at maximum prices to, or, through substitution, through semi-public authorities, even though those private actors then have no right of initiative in the social housing market?

If the third question referred is answered in the affirmative, should the national court apply a penalty, and if so, what penalty, to:

(a) the finding that a new requirement, subjected to evaluation in accordance with Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, was not specifically evaluated in accordance with Article 15(6) of that Directive;

(b) the finding that no notification of that new requirement was given in accordance with Article 15(7) of that Directive?

If the third question referred is answered in the affirmative, should the concept of 'forbidden requirement' in Article 14 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted as precluding a national scheme, under the assumptions described in that Article, not only if it makes access to a service activity or the exercise of it subject to compliance with a requirement, but also if that scheme merely provides that non-compliance with that requirement will cause the financial compensation for the performance of a service prescribed by law to lapse, and that the financial guarantee supplied in regard to the performance of the service will not be reimbursed?

If the third question referred is answered in the affirmative, should the concept of 'competing operators' in Article 14(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted as meaning that it is also applicable to a public institution whose mandates can partially interfere with those of the service providers, if it takes the decisions referred to in Article 14(6) of that Directive and it is also obliged, as the final step in a cascade system, to buy the social housing units developed by a service provider in the performance of the social obligation imposed on him?

(a) If the third question referred is answered in the affirmative, should the concept 'authorisation scheme' in Article 4(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted to mean that it is applicable to certificates issued by a public institution after the initial building or land subdivision authorisation has already been given, and which are necessary in order to qualify for certain of the compensations for the performance of a social obligation which was linked by law to the original authorisation and which are also necessary in order to claim the reimbursement of the financial guarantee imposed on the service provider in favour of the public institution?

(b) If the third question referred is answered in the affirmative, should the concept of 'authorisation scheme' in Article 4(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted to mean that it is applicable to an agreement which a private actor concludes with a public institution pursuant to a legal rule in the context of the substitution of the public institution in respect of the sale of a social housing unit developed by the private actor in the performance, in kind, of a social obligation which is linked by law to a building or land subdivision authorisation, taking account of the fact that the conclusion of that agreement is a condition for the executability of the authorisation?

Should Articles 49 and 56 of the Treaty on the Functioning of the European Union be interpreted as precluding a scheme whereby, when a building or land subdivision authorisation is granted in respect of a project of a certain minimum size, it is linked by law to a social obligation entailing the delivery of social housing units, amounting to a certain percentage of the project, which should subsequently be sold at capped prices to, or, with substitution, by, a public institution?

Should Article 63 of the Treaty on the Functioning of the European Union be interpreted as precluding a scheme whereby, when a building or land subdivision authorisation is granted in respect of a project of a certain minimum size, it is linked by law to a social obligation entailing the development of social housing units, amounting to a certain percentage of the project, which should subsequently be sold at capped prices to, or, with substitution, by, a public institution?

Should the concept of 'public works contracts' in Article 1(2)(b) of Directive 2004/18/EC 3 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 be interpreted to mean that it is applicable to a scheme whereby, when a building or land subdivision authorisation is granted in respect of a project of a certain minimum size, it is linked by law to a social obligation entailing the development of social housing units, amounting to a certain percentage of the project, which should subsequently be sold at capped prices to, or, with substitution, by, a public institution?

Should Articles 21, 45, 49, 56 and 63 of the Treaty on the Functioning of the European Union and Articles 22 and 24 of Directive 2004/38/EC 4 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, be interpreted as precluding the scheme introduced by Book 5 of the Decreet van het Vlaamse Gewest van 27 maart 2009 betreffende het grond- en pandenbeleid, entitled 'Wonen in eigen streek' ('Living in one's own area'), namely the scheme whereby in certain so-called target municipalities the transfer of land and any constructions erected thereon is made subject to the buyer or the tenant being able to demonstrate a sufficient tie with the municipality within the meaning of Article 5.2.1(2) of that decree?

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1 - OJ 2005 L 312, p. 67.

2 - OJ 2006 L 376, p. 36.

3 - OJ 2004 L 134, p. 114.

4 - OJ 2004 L 158, p. 77.