Law limiting land conveyances may be unconstitutional
The HFHR submitted to the Senate an opinion on the so-called Agricultural Land Conveyances Act. The Foundation argues that the draft law includes numerous provisions which may be violating the Constitution. During the next session on 13 and 14 April the Senate will be debating on this law.
The declared objectives of the law, namely strengthening family farming and protecting against speculative trade in agricultural land, generally do not raise any controversy as to their constitutionality. Unfortunately, the same cannot be said about the measures intended to attain these objectives, which in many cases are arbitrary and disproportionate.
Introduction of extensively strict regulations governing the purchases of agricultural land from private parties raises doubts as to their constitutionality. As a rule, only individual farmers will be able to buy agricultural properties. According to the draft law, a person will not be considered an individual farmer if they reside outside the municipality in which the land is located, even though they have appropriate qualifications and personally cultivate their land. Moreover, the new law makes it impossible for persons with agricultural qualifications and sometimes even experience in farming to buy agricultural land if they have not done yet so.
The law allows free circulation of land between loved ones; however, persons living in informal relationships have been excluded from this category. “Exclusion of persons remaining in cohabitation with a seller does not only lead to an inconsistency in the terminology of Polish law but also violates the principle of taking into consideration the welfare of families provided for in the Constitution”, stated Michał Kopczyński, a lawyer from the HFHR. Purchases of land from the Agricultural Property Agency are possible but only once controversial and imprecise conditions are satisfied.
Lawyers from the HFHR have also expressed concerns regarding the constitutionality of, among other things, the obligation to personally manage an agricultural farm during the period of 10 years from the purchase date. This term seems to be too long and, what is more, the law sets strict requirements for exceptions to that obligation, which in principle are sales to loved ones and fortuitous events. “In light of the Constitution, the consequences of a failure to comply with this obligation, namely the Agency’s right to request the obligatory purchase of an agricultural property, are also disproportionate. Such concept may be perceived as a sort of punitive expropriation. Due to the fact that carrying out such an expropriation would not be necessary for the realisation of a public objective, it would be unconstitutional”, adds Marcin Szwed, a lawyer working with the HFHR.
According to the HFHR, the discussed law also unjustifiably favours churches and religious associations, to which the above-mentioned restrictions do not apply. Such a privilege can be justified neither by the tasks performed by religious communities nor by any other factors.