Trade in agricultural real estate in the light of the Treaty on the free movement of capital

The principles of trade in agricultural real estate influence the functioning of the entire agricultural sector. Agricultural real estate is a foundation for production in agriculture and for comprehensive, not only economic, development of rural areas. However, the area of influence of the regulations on trade in agricultural real estate is much wider: it covers both society and nature. This results from agricultural real estate, which is a special good: it is not reproducible, it regenerates very slowly when degraded, and it is a living habitat for many species. The soil, which is the main element of ecosystems, is an important part of the development of rural areas. Soil, which is the main element of terrestrial ecosystems, is called ‘the factory of life’ for good reason. Without it, at least at the current stage of scientific development, it would not be possible to produce food on the scale necessary to ensure global food security. Agricultural land is therefore a resource from which everyone benefits. Agriculture can be defined as a non-commercial ‘provider of public goods’. Apart from food security, these include maintaining biodiversity and sustaining and enriching cultural traditions, the identity of villages and regions, and the cohesion and vitality of rural areas. For these reasons agricultural real estate deserves protection and the duty of the legislature is to shape legal regulations in such a way as to ensure its rational use.

As Prof. Elżbieta Tomkiewicz noted in the editorial review:
‘The legal problems of trading in agricultural real estate in the light of the Treaty on the free movement of capital are of great importance, from the point of view of both the theory and practice of law application. The rules of trading in agricultural real estate in the EU member states, adopted by means of national regulations, have an extremely significant impact on the functioning of the agricultural sector in its various aspects, both in the economic and social sense as well as in the environmental sense.’

In this monograph, the analysis focusses on the key treaty principles from the point of view of the issues under study, namely the principle of the free movement of capital and the freedom of entrepreneurship. The book also discusses selected fundamental rights and general rules which apply to trade in agricultural real estate. From the point of view of the examined problems, the discussion on permissible limitations in trading in agricultural real estate provided by national legislation is particularly valuable. As follows from the research, the Court of Justice of the European Union, in the vast majority of cases cited in the monograph, did not determine national provisions introducing restrictions on the trade of agricultural real estate to be compatible with the provisions of EU law. In many of the cases examined, the Court concluded that, in the particular socioeconomic reality, the objectives underlying the national restrictions are justified by overriding requirements of general interest, compatible with the objectives of the common agricultural policy. However, it declared them inadmissible if they did not comply with the Treaty principle of proportionality or, more rarely, the principle of non-discrimination.

Author: Beata Włodarczyk
Review: prof. dr hab. Elżbieta Tomkiewicz
Series: Basic Research
Year of publication: 2021
e-ISBN: 978-83-66300-43-9 (ebook)
DOI: 10.5281 / zenodo.4702754
Number of pages: 100
Format: ebook: pdf