Acquisition of a property by a cross-border commuter within the meaning of the agreement on the free movement of persons

Facts

On 25 March 2005, Y. sold to spouses A.X. and B.X., British nationals, plot no. x, plan z of the communal cadastre of Z. On 5 April 2005, the buyers requested authorization to acquire this 851 m2 undeveloped property. On 12 April 2006, the Legal Service of the Land Registry of the Canton of Valais informed them that this authorization could only be granted if they undertook to build a vacation chalet within two years.

On 11 January 2008, A.X. formed a limited liability company C. Sàrl, based in D, with a third party. By an employment contract of indefinite duration of 28 January 2008, this company hired A.X. as a commercial manager, with a 50% activity rate, a net monthly salary of 2'500 fr., two days off per week, and four weeks of annual vacation.

At an undetermined date, A.X. requested the Population and Migration Service of the Canton of Valais to issue a cross-border permit CE/AELE (permit G). It appears from the documents provided in support of this application that the aforementioned limited liability company was founded to contribute to the development of the activities of the English company C. Limited, which has existed since 1991.

On 27 May 2008, the Land Registry and Geomatics Service estimated that the acquisition of the aforementioned plot by A.X. was not subject to the authorization regime established by the Federal Law on the Acquisition of Real Estate by Foreigners. It relied on art. 7 let. j ANRA, a provision which states that nationals of European Community member states who, as cross-border commuters, acquire a secondary residence in the region of their workplace, are not subject to this regime.

Considerations

The Public Law Court examined the notion of cross-border commuter within the meaning of the agreement on the free movement of persons and art. 7 let. j ANRA. It considered that the definition of salaried cross-border workers retained by the previous authority was no longer in line with the regulations applicable from 1 June 2007 for nationals of the former European Community member states.

The Court estimated that the characteristic element of the notion of 'cross-border commuter' is that the person regularly commutes - i.e., at least once a week - between their home and workplace. It considered that the previous authority could…