20 September 2018 (*1)

(Reference for a preliminary ruling — Fundamental freedoms — Articles 21, 45, 49 and 63 TFEU — Directive 2004/38/EC — Articles 22 and 24 — Right of pre-emption of a government body on land located in its operating area with a view to developing social housing — Housing allocated on a priority basis to private individuals who ‘have strong social, economic or socio-cultural ties’ with the area in which that body operates — Situation which is confined in all respects within a single Member State — Inadmissibility of the request for a preliminary ruling)

In Case C‑343/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), made by decision of 19 May 2017, received at the Court on 8 June 2017, in the proceedings

Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest APB),

Vlaams Financieringsfonds voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlaams Financieringsfonds),

Vlaamse Maatschappij voor Sociaal Wonen NV (VMSW),

Christof De Knop and Others,

intervener:

Vlaams Gewest,

THE COURT (Fourth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Chamber, C. Vajda, E. Juhász, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: E. Sharpston,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 May 2018,

after considering the observations submitted on behalf of:

–Fremoluc NV, by P. Peeters, R. van Cleemput, P. de Bandt and J. Dewispelaere, advocaten,

–the Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest APB) and the Vlaamse Maatschappij voor Sociaal Wonen NV (VMSW), by P. Hofströssler and V. Sagaert, advocaten,

–the Vlaams Gewest, by E. Cloots, S. Sottiaux and J. Roets, advocaten,

–the Czech Government, by M. Smolek, J. Vláčil and J. Pavliš, acting as Agents,

–the European Commission, by H. Tserepa-Lacombe, M. Kellerbauer, L. Malferrari and F. Wilman, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of Articles 21, 45, 49 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, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

2The request has been made in proceedings between Fremoluc NV on the one hand, and Agentschap voor Grond- en Woonbeeleid voor Vlaams-Brabant (Agency for Land and Housing Policy for Flemish Brabant, Belgium, ‘Vlabinvest APB’), Vlaams Financieringsfonds voor Grond- en Woonbeleid voor Vlaams-Brabant (Flemish Financing Fund for Land and Housing Policy for Flemish Brabant, Belgium), Vlaamse Maatschappij voor Sociaal Wonen NV (Flemish Social Housing Association, Belgium, ‘the VMSW’), Vlaams Gewest (Flemish Region, Belgium) and Christof De Knop and Others (‘the De Knop associates’), on the other hand, relating to the validity of a contract for the sale of immovable property by the De Knop associates to Vlabinvest APB following the exercise, by the latter, of a right of pre-emption over that property.

Legal context

EU law

3Article 22 of Directive 2004/38, entitled ‘Territorial scope’, provides:

‘The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals.’

4Article 24(1) of that directive, entitled ‘Equal treatment’, states:

‘Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.’

Belgian law

5According to the decreet betreffende opdracht van de bevoegdheid inzake het voeren van een specifiek grond- en woonbeleid voor Vlaams-Brabant aan de Provincie Vlaams Brabant (Decree concerning the transfer of the competence to implement a specific land and housing policy for Flemish Brabant to the Province of Flemish Brabant) of 31 January 2014 (Belgisch Staatsblad of 28 February 2014, p. 17461), Vlabinvest APB has the power to pursue a specific land and housing policy for the province of Flemish Brabant (province of Flemish Brabant, Belgium), including the development of social housing projects in the municipalities of that province and has, for its implementation, a right of pre-emption relating to building land situated in areas earmarked for house renovation and house-building in 26 municipalities in its operating area, designated by the Vlaams regering (Flemish Government, Belgium).

6The Besluit houdende het provinciaal reglement betreffende de werking en het beheer van [Vlabinvest APB] (Decree laying down the provincial regulations on the operation and management of [Vlabinvest APB]) of 25 February 2014 (‘the provincial regulations of 25 February 2014’) establishes Vlabinvest APB’s operating area in 39 municipalities in the province of Flemish Brabant, and defines social housing as ‘a project which is or has been entirely or partly financed by … Vlabinvest APB in order to provide homes or plots on favourable terms’ and lays down the income requirements as regards eligibility to accommodation for rent and for sale.

7Article 2 of those regulations provides:

‘§1. The management committee of Vlabinvest APB offers for rent, long term rental (long leasehold) or sale the homes and plots included in a social housing project financed by … Vlabinvest APB, after evaluation of tenants, lessees with long-term leases or potential buyers by the evaluation committee … .

§2. As regards the provision of homes or land in a social housing project referred to in §1 …, absolute priority must be given, at any stage of the project, to prospective tenants, leaseholders or buyers who have strong social, economic or socio-cultural ties with the operating area in question.’

8According to Article 2/2 of the Besluit van de Vlaamse regering betreffende de voorwaarden voor de overdracht van onroerende goederen door de Vlaamse Maatschappij voor Sociaal Wonen en de sociale huisvestingsmaatschappijen ter uitvoering van de Vlaamse Wooncode (Decree of the Flemish Government on the conditions for the transfer of immovable property by the Flemish Social Housing Association and social housing associations pursuant to the Flemish Housing Code) of 29 September 2006 (Belgisch Staatsblad of 13 November 2006, p. 60628), as amended by the Besluit van de Vlaamse regering (Flemish Government Decree) of 4 April 2014 (Belgisch Staatsblad of 11 July 2014, p. 53261, ‘the Decree of 29 September 2006’):

That priority rule is aimed at meeting the housing needs of the least affluent local population in a region with specific problems in the housing market. ...’

9The same priority rule has also been inserted in the second to sixth paragraphs of Article 17 of the Besluit van de Vlaamse tot reglementering van het social huurstelsel ter uitvoering van titel VII van de Vlaamse Wooncode (Decree of the Flemish Government for the regulation of the social rented housing scheme and implementing Title VII of the Flemish Housing Code) of 12 October 2007 (Belgisch Staatsblad of 7 December 2007, p. 60428, ‘the Decree of 12 October 2007’).

The dispute in the main proceedings and the question referred for a preliminary ruling

10On 9 February 2015, Fremoluc, established in Belgium, concluded, as purchaser, with the De Knop associates, as vendors, resident in that Member State, a contract for the sale of several plots of land located in the province of Flemish Brabant (Belgium), subject to the condition that no statutory pre-emption rights be exercised. Vlabinvest APB, responsible for the land and housing policy for that province, exercised such a right and acquired those plots on 14 July 2015, before selling them to VMSW on 31 July 2015, which transferred back to it a right to build on those plots at the same time.

11Fremoluc brought proceedings before the referring court, the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), seeking annulment of the contracts concluded by Vlabinvest APB on 14 and 31 July 2015 and a declaration that the contract of 9 February 2015 was fully effective. It submits, in particular, that the contract of 14 July 2015 has an unlawful basis, rendering it incurably void, namely Vlabinvest APB’s implementation of the land policy for which it is responsible, which imposes a priority rule contrary to Articles 21, 45, 49 and 63 TFEU and Articles 22 and 24 of Directive 2004/38.

12Vlabinvest APB, the VMSW and the Flemish Region maintain, by contrast, that those provisions are not applicable in the present case, since the dispute is confined in all respects within a single Member State, namely in Belgium. They add that that priority rule can apply only at the stage at which the plots and homes which will be developed are awarded in the context of a social housing project by Vlabinvest APB. The possible restriction relied on is therefore irrelevant at the stage of the dispute in the main proceedings, which concerns the acquisition of building land to carry out such a project.

13However, the referring court takes the view that, although the dispute in the main proceedings is confined in all respects within Belgium, the case is not wholly unrelated to a situation in which EU law may be applicable. In particular, the scheme which includes the priority rule contested by Fremoluc has both many notable similarities to and differences from that at issue in the case which gave rise to the judgment of 8 May 2013, Libert and Others (C‑197/11 and C‑203/11). Referring to paragraphs 33 to 35 of that judgment, that court states that that rule appears to affect the nationals and undertakings of other Member States and that if the contracts of 14 and 31 July 2015 were annulled, the application of that rule at the time of the subsequent offer for sale or rental of the plots and homes created, would be avoided. The national court does not, however, rule out the possibility that the Court might decide that, in the present case, EU law is not applicable to the dispute in the main proceedings.

14In those circumstances, the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Should Articles 21, 45, 49 and 63 [TFEU] and Articles 22 and 24 of [Directive 2004/38] be interpreted as precluding a scheme under which a government body develops land with a view to offering plots and homes for sale and rental on favourable terms, with priority being given to persons who have strong social, economic and socio-cultural ties with the area in which that body operates, and which sets income requirements which the vast majority of those persons can fulfil, such as the scheme which results from reading the following in conjunction with each other:

–the [provincial regulation of 25 February 2014];

–Article 2/2 of [the Decree of 29 September 2006] and of the second to sixth paragraphs of Article 17 of [the Decree of 12 October 2007]?’

15On 9 March 2018, Vlabinvest APB and the VMSW appealed against the order for reference. By judgment of 24 April 2018, the hof van beroep te Brussel (Court of Appeal, Brussels, Belgium), which acquired jurisdiction by reason of the ‘effet dévolutif’ of an appeal under national law, decided to maintain the request for a preliminary ruling.

16By its question, the referring court asks, in essence, whether Articles 21, 45, 49 and 63 TFEU and Articles 22 and 24 of Directive 2004/38 must be interpreted as precluding national legislation granting a right of pre-emption to a government body, responsible for land and housing policy, for the acquisition of building land on which social housing will be developed and providing that it will be allocated according to a priority rule based on the existence of strong ties that potential beneficiaries have with the part of the territory corresponding to the operating area of that body.

17Vlabinvest APB, the VMSW and the Flemish Region submit that the request for a preliminary ruling is inadmissible on the ground that the case in the main proceedings is wholly unrelated to EU law, which Fremoluc, the Czech Government and the European Commission dispute.

18It should be noted at the outset that the request for a preliminary ruling concerns the interpretation of provisions of the FEU Treaty relating to freedom of movement for persons, freedom of establishment and the free movement of capital, and to measures adopted to implement those provisions, in a situation where, as the referring court itself observes, the dispute in the main proceedings is confined in all respects within a single Member State. According to the Court’s settled case-law, those provisions of the FEU Treaty, and the measures adopted to implement them, do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11).