Attorney at law Dr. Fuith is an expert on matters of real estate law, in particular real estate transactions. He successfully contested the discrimination against foreigners in the purchase of real estate in Austria, especially in Tyrol, before the European Court of Justice in Luxembourg.
His 1996 academic publication is the basis for the leading decisions of the Austrian Constitutional Court in the field of real estate transaction law. In the same way that discrimination against foreigners in the field of real estate is forbidden in Austria, it is also not permitted to discriminate against Austrian nationals. The said 1996 paper is a standard reference used by the Austrian Constitutional Court in the field of real estate.
Konle versus the Republic of Austria
Attorney at law Dr. Fuith’s client, Klaus Konle, a German national the use of whose name is permitted because it is contained in all relevant publications, suffered discrimination by the Austrian authorities with respect to the acquisition of real estate in a manner that was in breach of EU law. The European Court of Justice found against the Republic of Austria, which led to a fundamental change in the law concerning transactions for the acquisition and sale of real estate in Tyrol with respect to building land. The approval proceedings were entirely abolished.
Repeal of the Tyrolean Law on the Acquisition and Sale of Land in the field of agricultural land by the Constitutional Court
This law was repealed, the Court citing the 1996 academic paper by Dr. Fuith arguing that it was unlawful for EU nationals to be able to acquire property in Austria without residency obligation and an obligation to farm the land themselves while Austrian nationals were not permitted to do so.
Repeal of provisions of the Burgenland Law on the Acquisition and Sale of Land
In repealing this law, the Constitutional Court again cited Dr. Fuith’s 1996 academic paper concerning the discrimination of nationals as the basis for its decision. This decision of the Austrian Constitutional Court is of fundamental importance for transactions for the acquisition and sale of land throughout Austria, the Court holding that at least the criterion of the purchaser farming the land himself and hence the residency requirement (the obligation to reside at the farm purchased) were in breach of European law, namely the free movement of capital, and was thus not to be used as a precondition for approval. This is a far-reaching and leading decision.
(Geschäftszahl VfGH G121/06)