Joining the European Union, Poland has negotiated a 12-year transition period for foreign buyers of agricultural land. It ends on May 1 this year. The accession treaty committed but also to the fact that after this period, “in any case” the citizens of the Union are not treated less favorably in respect of the acquisition of land, than they were at the date of signature of the Accession Treaty.
Government Act to suspend the sale of real estate of the Agricultural Property of the Treasury will break these findings. Prevents the sale of state land for five years. It introduces the general principle that the purchaser of agricultural land will be able to be an individual farmer. Makes a sale of private land nierolnikowi the consent of the President of the Agricultural Property Agency.
– On the basis of the new law, EU citizens will be treated less favorably in respect of acquisition of agricultural land than at the date of signature of the Accession Treaty – says lawyer Zbigniew Krüger of the law firm Krüger & amp; Partners.
– Then on the purchase of land was necessary approval of the Ministry of Internal Affairs. Thus introduced the amendment would simply violate the treaty – is echoed by lawyer Maciej Gorski from the Institute for the Study of Law, Real Estate.
He noted Katarzyna Karasiewicz, legal counsel, expert on European law, EU legislation does not prohibit Poland to introduce certain restrictions on Act on shaping the agricultural system. These, however, can not be non-arbitrarily discriminatory and must be objectively justified by the public interest. – I doubt whether the manner in which the Act defines the notion of an individual farmer, this condition is met – indicates Karasiewicz.
In its assessment, the very requirement of personal conduct agricultural activities by the individual farmer and irritates, that at least five years he lived in the municipality where the farm is located, could lead to discrimination against non-Polish entities.
the effects of a breach of the Treaty rules can be severe. Polish law may be subject to the Commission’s application to the Court of Justice of the EU. – Such a scenario is possible. The Commission often responds to issues widely reported in the media – said Dr. Karasiewicz.
And even though the Commission or the tribunal does not have the tools to directly prevail upon the Member State to change the bill, is creating bad law can reflect on our pocket. As experts warn, the real threat seems to impose on Poland tens of millions of euros penalty. At risk are also subsidies to our agriculture.
Members of Law and Justice calm.
– Nowhere in the law is not written, that EU citizens from outside can not buy Polish land. These and even more restrictive of the Act operate in most EU countries. We need not fear the consequences – says Robert Telus, rapporteur of the Act.
project is in line with European Union law – assured the minister of agriculture. “First of all, does not differentiate restrictions to the right to acquire agricultural property on grounds of nationality or nationality of buyers. Proposes strict rules, but equal and the same for every buyer, regardless of whether it is a buyer Polish or from another EU Member State “- declared in the government’s bill to suspend the sale of real estate of the Agricultural Property of the Treasury, to prove the Polish ideas on how to restrict marketing agricultural land will not break the commitments of the EU.
something forgotten
These spells are not convinced, however, lawyers. They remind that by signing the accession treaty – Annex XII – Polish Government (in the person of Prime Minister Leszek Miller and Foreign Minister Wlodzimierz Cimoszewicz) declared that after a twelve-year period of protection the principle of the acquisition of Polish agricultural and forest land shall not be more restrictive than the date of signature of the Treaty accession to the EU. This Explanatory Memorandum has not been taken into account.
– There is no doubt that the attachment is part of the accession treaty – explains the lawyer of the law firm Zbigniew Krüger Krüger & amp; Partners.
As he explains, the Vienna Convention on the Law of Treaties provides that a treaty is an international agreement between States in written form and governed by international law, regardless of whether it is included in the one, or several documents, and whatever its particular name?.
– the Convention also indicates explicitly that the introduction and annexes to the treaty form an integral part – emphasizes the lawyer.
the report control by DZP (was commissioned by the Polish Association of Landowners) experts point out that the government’s initiative to establish a system of “trade in agricultural property far more restrictive to citizens of EU Member States than the system on the day the signing of the accession treaty. ” The document question, among others, the introduction of a statutory ban on the sale of agricultural property belonging to the resource of the Treasury for a period of 5 years.
The primacy of the Treaty
The negative consequences of the entry into force of the Act, which would violate the treaty arrangements, can be many. According to the attorney. Kruger effect is primarily the inability to use the new law as contrary to the ratified by Poland international agreement.
– The primacy of ratified international agreements over domestic law stems directly from the Constitution – underlines the mec . Krüger.
Primary Community law – and such include the accession treaties – is his opinion precedence over domestic law, including the constitution of a Member State. – It will not be possible to use the provisions of the Act on trading in agricultural land, which can not be reconciled with the provisions of the Accession Treaty – says the lawyer.
Moreover, in his opinion there is a risk of civil claims of private owners against Treasury for breach of EU law.
– In cases C-6/90 and C-9/90 Francovich and Bonifaci EU Court of Justice has already recognized that the principle of State liability for damage caused unit as a result of breaches of Community law is an essential element of the treaty system – reminiscent of attorney. Krüger.
explains that having the responsibility to say, you need three elements: the purpose of the rule infringed law is to grant rights to individuals ; the breach is sufficiently serious; Finally, between him and the damage there is a direct causal link. All those conditions in Polish kazusie on agricultural land can be met.
EU freedom
But the introduction of far-reaching restrictions on the land trade is not allow art. 345 of the Treaty on the Functioning of the European Union? According to him, “treaties do not prejudice the system of property ownership in the Member States.” It is this provision of the Ministry of Agriculture appointed in the explanatory memorandum to the government bill. It said that with this adjustment, you can draw the conclusion that “the formation of the principles of the acquisition of property and the use of reasonable and rational restrictions in this respect is left to the sovereign decisions of the Member States”. Thus, Poland should “use the standard art. 345 of the Treaty and the rules governing the acquisition of agricultural land in the Republic of Polish regulated in a way that ensures the best use of Polish agricultural land, while non-discriminatory any potential buyers because of their nationality. “
This argument does not however, speaking to the creators of the regulatory report of DZP. In their opinion this provision “does not affect the scope of Article. 63 and Art. 65 of the Treaty on the Functioning of the European Union and the provisions of the accession treaty. ” The law can not therefore be contrary to EU freedoms, including the freedom of movement of capital (for the case to go will be free to invest in agricultural land), which says exactly art. 63 TFEU.
For the infringement – in the opinion of lawyers – will, if you have already voted in the Parliament Act will come into force unchanged. Introduced restrictions do not meet the test for proportionality. “The law not only dramatically narrows the category of potential buyers to individual farmers, but seeks to deprive private owners of agricultural property legal possibility to dispose of the object of his property freely chosen person. Contrary to the requirements of the test of proportionality (…) provides addiction sale of private agricultural property to entities other than the individual farmer and a person close to, unit of local government or the State Treasury of a positive administrative decision of the President of the Agency (Agricultural Property – ed.), Who will be making this decision conditions far outlined freedom “- the report says DZP.
Step legislative
Law sent to the Senate
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