The Commissioner for Fundamental Rights Finds Problematic the Provision of the Land Act on the Approval of Sales Contracts

Several MPs, civil organizations and private citizens have turned to the Ombudsman concerning the constitutionality of the Act on the Turnover of Lands used for Agriculture and Forestry. The complaints took issue in particular with the fact that the Act imposes a stringent regime on obtaining and possessing agricultural land.

In his report the Ombudsman pointed out that his competence does not extend to make expediency and "policy" statements concerning the regulatory concept of the Act; therefore, his investigation was limited to reviewing whether or not the provisions of the Act are in compliance with the Basic Law.

Relying on the practice of the Constitutional Court, the Commissioner for Fundamental Rights explained that the legislator has wide discretionary powers in regulating the ownership of agricultural land. Land is a finite estate (its quantity is limited, cannot be multiplied or substituted), its indispensability, capacity to renew, extraordinary susceptibility to risks do legitimize even a stronger state intervention. Therefore, just as in case of some other restrictive provisions, the Ombudsman did not find problematic in itself that a sales contract could take effect only upon approval by the competent authority.

However, the guarantees deriving from the rule of law and the right to fair administrative procedure should be asserted in the process of the contract approval. Pursuant to the Land Act's rules of procedure, the local land committee (the representative body of local farmers) shall issue a resolution on the sales contract. In case the local land committee does not support the sales contract or fails to deliver an opinion thereof, the authority shall deny approval. According to the Ombudsman, it may lead to a fundamental right anomaly that the Land Act does not specify the objective reasons for denying approval and that the negligence of the local land committee has an adverse effect on the contracting parties' interests.

It is also problematic that the competent authority, citing reasons not itemized in the Act,  may deny approval even if the local land committee has supported the contract.

In his report the Ombudsman called upon the Minister of Rural Development to take the appropriate measures in order to amend the problematic provisions.