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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Woningstichting Sint Servatius (Free movement of capital) [2009] EUECJ C-567/07 (01 October 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C56707.html Cite as: [2009] EUECJ C-567/07, [2009] EUECJ C-567/7 |
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(Free movement of capital Article 56 EC Restrictions Justification Housing policy Services of general economic interest)
In Case C-567/07,
REFERENCE for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 19 December 2007, received at the Court on 27 December 2007, in the proceedings
Minister voor Wonen, Wijken en Integratie
Woningstichting Sint Servatius,
composed of P. Jann, President of the Chamber, A. Tizzano (Rapporteur), A. Borg Barthet, E. Levits and J.-J. Kasel, Judges,
Advocate General: M. Poiares Maduro,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 19 March 2009,
after considering the observations submitted on behalf of:
Woningstichting Sint Servatius, by M. de Boer, J. de Pree and P. Slot, advocaten,
the Netherlands Government, by C. Wissels and Y. de Vries, acting as Agents,
the German Government, by M. Lumma, acting as Agent,
Ireland, by D. O'Hagan, acting as Agent, and M. Gray, barrister,
the Hungarian Government, by J. Fazekas, R. Somssich and K. Borvölgyi, acting as Agents,
the Polish Government, by M. Dowgielewicz, P. Kucharski and K. Majcher, acting as Agents,
the Swedish Government, by S. Johannesson, acting as Agent,
the Commission of the European Communities, by E. Traversa, V. Di Bucci, H. van Vliet and A. Nijenhuis, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
National law
'Associations with full legal capacity and foundations which have as their object to operate solely in the public housing sector and do not intend to distribute any profits other than in the interests of public housing may be approved by royal decree as institutions operating solely in the interests of public housing.'
'Approved institutions shall give priority to the housing of persons who, owing to their income or other circumstances, have difficulty finding suitable accommodation ...'.
'1. Approved institutions shall be answerable to the competent Minister, in accordance with Article 71a(1), introductory words and point (b).
2. Additional requirements concerning supervision shall be adopted by, or pursuant to, general administrative measures ...'
'By or pursuant to general administrative measures, it may be stipulated that the competent Minister may, as an experimental project, depart temporarily, or permit a temporary departure, from rules laid down by or pursuant to general administrative measures.'
'The competent Minister may depart temporarily, or permit a temporary departure, from this Decree to permit experimental project which he believes to be in the interests of public housing.'
The dispute in the main proceedings and the questions referred for a preliminary ruling
'1. Does the requirement that the Minister give prior authorisation for any cross-frontier activities of an undertaking which is approved by law to promote the Netherlands' public housing interests, which may rely on public resources for this purpose, which may operate, by law, solely in those interests, and which in principle has its area of activity within the Netherlands ('approved institution'), constitute a restriction on the free movement of capital, as referred to in Article 56 EC?
2a. Can a Member State's public housing interests be regarded as a public policy interest as referred to in Article 58 EC?
2b. Can a Member State's public housing interests be regarded as an overriding reason in the public interest recognised in the case-law of the Court of Justice?
2c. More specifically, can interest in the effectiveness of and the ability to finance a Member State's public housing system be regarded as a public policy interest as referred to in Article 58 EC or as an overriding reason in the public interest recognised in the case-law of the Court of Justice?
3a. Assuming that the requirement of prior authorisation for an approved institution as referred to in Question 1 constitutes a restriction for which there is justification as referred to in Questions 2a, 2b and 2c, is that requirement necessary and proportionate?
3b. When applying that justification, does a Member State have a wide margin of discretion in determining the scale of the public interest concerned and the manner in which that interest is promoted? Is one of the determinants in this context the fact that the [European] Community has few, if any, powers in the public housing sector?
4a. Besides, or in conjunction with, the overriding reasons in the public interest referred to in Article 58 EC and recognised in the case-law of the Court of Justice, can a Member State rely on Article 86(2) EC to justify a restriction on the free movement of capital, if special rights have been granted to the undertakings concerned and those undertakings are entrusted with the operation of services of general economic interest?
4b. Do the public interests referred to in Article 58 EC and the overriding reasons in the public interest recognised in the case-law of the Court of Justice have the same content as the general economic interest referred to in Article 86(2) EC?
4c. Does reliance by the Member State concerned on Article 86(2) EC, its contention being that the undertakings to which special rights have been granted perform tasks of general economic interest, have additional weight over and above reliance on public interests as referred to in Article 58 EC and the overriding reasons in the public interest recognised in the case-law of the Court of Justice?
5a. Can undertakings, such as the approved institutions referred to in Question 1, which, on the one hand, are required to employ all their capital for the benefit of public housing, but which, on the other hand, also undertake commercial activities in respect of public housing, be regarded, for all or some of their tasks, as undertakings entrusted with the operation of services of general economic interest, as referred to in Article 86(2) EC?
5b. For the answer to Question 5a to be in the affirmative, is it necessary for the undertakings concerned to keep separate accounts from which it is absolutely clear what costs and receipts are associated with their social activities, on the one hand, and with their commercial activities on the other, and for that obligation to be laid down in national legislation? Should it then be ensured that a Member State's financial resources benefit only the social activities and their continuity?
6a. If an approved institution as referred to in Question 1 can be regarded, in respect of all or some of its activities, as an undertaking entrusted with the operation of services of general economic interest as referred to in Article 86(2) EC, can the entrustment of the operation of such services justify the imposition on the approved institution of a restriction on the free movement of capital as referred to in Article 56 EC?
6b. When applying that justification, does a Member State have a wide margin of discretion in determining the scale of the general economic interest concerned and the manner in which that interest is promoted? Is one of the determinants in this context the fact that the Community has few, if any, powers in the public housing sector?
7a. Can the fact that a Member State provides certain undertakings as referred to in Article 86(2) EC with financial resources make it necessary for the territorial scale of their activities to be limited in order to prevent those financial resources from constituting prohibited State aid and the undertakings employing those resources in another Member State from competing with undertakings in that Member State under conditions which do not comply with market rules?
7b. Can a Member State, in this instance the Netherlands, require approved institutions as referred to in Question 1 wishing to undertake housing construction activities of a social and commercial nature in another Member State to obtain prior authorisation if there is as yet no legal obligation in the first-mentioned Member State to make a distinction between the two types of activity? Is the requirement of prior authorisation in this case a necessary and proportionate means of ensuring compliance with Articles 87 and 88 EC?'
The first to third questions
The fourth to sixth questions
The seventh question
Costs
On those grounds, the Court (First Chamber) hereby rules:
Article 56 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which makes the exercise of cross-frontier activities of institutions approved under Article 70(1) of the Housing Law (Woningwet) in relation to housing matters subject to prior administrative authorisation, in so far as such legislation is not based on objective, non-discriminatory criteria which are known in advance and which are capable of adequately circumscribing the exercise by the national authorities of their discretion, a matter which falls to be determined by the national court.
[Signatures]
* Language of the case: Dutch.