The European Court of Justice has held that the free movement of capital means that the purchaser cannot be required to cultivate and live on the farm. Nor is nationality a criterion, and anyone, irrespective of nationality or the place of the company registered office can acquire agricultural and forestry land in Austria, in particular in Tyrol. However, it must be guaranteed that the farm or forestry business will be run properly, not necessarily by the purchaser but also by a third party. Within Austria, the competent courts, in particular in Tyrol, do not follow this decision of the European Court of Justice, a fact that I have criticised on numerous occasions.
I raised this problem in the opinion I prepared for the Tyrol Bar on the amendment to the Tyrolean Law on the Acquisition and Sale of Land. In my current Commentary on this piece of legislation in the light of European Union law, I set out the legal situation in more detail and from an academic point of view. As author of this standard work on land transactions in Tyrol, I am extremely well versed in this issue both in theory and in practice.
Given my contacts with the public authorities, in particular to those responsible for land transactions and regional planning in Tyrol, and my daily involvement with the topic both in practice and from the point of view of theory, my clients include not only potential purchasers of property in Austria, both Austrian and foreign nationals, but also notaries acting for their clients in matters of land transactions, in particular on the question of obtaining the required approvals and the contractual structure in the field of the acquisition and sale of land.
I also benefit from being able to cite from my own standard work, and indeed the Austrian Constitutional Court has paid me the special honour of citing an academic paper by me in the course of its ruling setting aside the main provisions of the Tyrolean Law on the Acquisition and Sale of Land concerning the cultivation and residency obligations. This paper put forward the argument that I raised back in 1996, namely that because the free movement of capital forbids a foreigner who acquires a farm here in Austria from being required to cultivate the farm himself and from having to live on the farm, Austrians too are entitled to rely on the same principle of the free movement of capital. This was upheld by the Constitutional Court on the grounds that this would otherwise constitute an unlawful discrimination of nationals.