False debate about the community legal basis of member states’ autonomy in the disposal of land

Tanka, Endre

Keywords: land estate policy, land ownership and land lease market, Treaty of Rome, Community legal basis, practice of the European Court of Justice

The mandatory Community legal basis applicable to the land market is specified by the Treaty of Accession (ToA) and Article 56 of the Treaty of Rome (ToR). The ECJ’s interpreting comment reveals the exceptional possibility to restrict the flow of capital, including the fact that Community law makes it possible to enforce the interests of Member States with respect to land issues as long as it is carried out in line with the values of the Community. Historically, with respect to ownership, the EU-15 prevent the EU by way of Article 295 (now 345) of the ToR from intervening in their autonomy with respect to the disposal and ownership of land comprising the territory of the state. This legal institution does not apply to the Eastern entrants due to the compulsory nature and content of Article 56 of the ToR. It cannot be denied that the status of the EU-15 and the EU-12 states, respectively, is regulated by two very different Community legal bases with respect to land ownership – the former being granted limited sovereignty, with the latter having no sovereignty at all.
Unlike the ToA, the CJEC (Court of Justice of the European Communities) cannot grant a different legal basis concerning Member States’ sovereignty with respect to the disposal and ownership of land, just like it cannot introduce legal rules different from the conditions set forth in the ToA at the time of accession to govern the exceptional restriction of the flow of capital. Consequently – and because the land estate policy decisions of the CJEC still only apply to disputes arising from land ownership issues of the EU-15 – the practice referred to by Ágoston Korom is irrelevant to Hungary’s land regime. The practice of the CJEC will be very useful to us when drawing up the act regulating agricultural businesses.

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