PrinCiPLeS:
a. the superior grounds for using the authorization for the pre-emption purchase and the repurchase by the Agency is the presence of effective demand on arable lands from indi-vidual farmers in the given area, b. the Agency undertakes actions in
order to survey local farmer com-munities with regard to the scale and direction of effective demand on arable lands from family farms (cooperation with local authorities and organizations representing farmers, including mainly agricul-ture chambers),
c. the WRSP Stock does not purchase properties that due to character (e.g.
farmer abodes), area (small-sized) or other features (e.g. lands that have not been farmed for a long pe-riod of time) are of no considerable importance from the standpoint of fulfilling the objectives of the act, e.g. they are not suitable for expand-ing family farms,
d. making the decision to use the pre-emption right for purchase or the right to repurchase a property, one takes into account the possibilities of dispensing the purchased agri-cultural properties in a reasonable period of time,
e. purchased properties are dispensed in a tender procedure limited to individual famers expanding their family farms mainly for sale,
In order to provide available land that can be offered to farmers for ex-panding their family farms, it is neces-sary to exclude lands from large-sized leased holdings.
Such an exclusion should not lead to decreasing the area of a family farm
will purchase approximately 80 ha of lands previously leased by them.
It must be stressed that selling the WRSP Stock’s propeties in not only an oganizational and technical process subject to factors within ANR, but also a process firmly dependent on the eco-nomic conditions of agriculture and the real property market, which influence the demand. Currently, the effectiveness of the pre-emption right sales is estimat-ed to be 60-70%, and the effectiveness of tender procedures - 20%.
The considerable increase in effort and determination of ANR in its activi-ties eventually leading to full privatiza-tion of the WRSP Stock’s properties by selling them to farmers and agricultural entrepreneurs, unfortunatelly clashes with low demand. Recently, there has been a substantial decline in the interest to purchase arable lands. Tender pro-cedures for sale remain at a low level of effectiveness. It also often concerns lands that at the request of farmers are excluded from large-sized lease agree-ments by means of contractual excep-tion clauses up to 20%. For the lack of interested buyers, only one in five tenders is successful. The number of farmers’ and agricultural chambers’
applications submitted to ANR for or-ganizing limited tenders for particular lands is decreasing. Even more often leaseholders renounce their right to purchase the property without a lease procedure. Farmers draw attention to growing financial problems hindering them at buying lands, and to difficul-ties with obtaining a preferential credit for their purchase. Another issue raised concerns the prices of land, which are a barrier for many potential buyers.
There are numerous attempts to call into question the valuations prepared by independent property appraisers se-lected by ANR via public procurement procedures. Even more often farmer communities (i.a. through agricultural chambers and the president of the Na-tional Council of Agriculture
Cham-bers, through deputies, senators and representatives of various organizations dealing with agriculture and the coun-tryside) request that the Agency cease or limit sales of state lands in favor of mak-ing them available to farmers through leasing. It is particularly stressed that increasing the sales of properties, when farmers lack financial means to pur-chase them, creates a danger that state lands will be bought out by persons and entities not connected with agriculture or indirectly by purchasers from foreign countries. Another argument raised is that investing in land considerably low-ers the economic power of agricultural holdings.
ANR also organizes tenders lim-ited to farmers and entitled persons. In total, from mid-1999 to mid-2010, in over 11,900 limited tender procedures, the Agency offered 156,700 ha lands to be sold. The bidding was successfully concluded in 8,600 cases and 117,600 ha were sold (115,200 to farmers intending to expand their family farms).
In accordance with laws in force, the WRSP Stock’s properties may also be purchased by foreigners who ob-tained proper permits. From the begin-ning of ANR’s operations to the end of June 2010, foreign entities bought 1630 ha (i.e. around 0.08% of all lands sold) from the WRSP Stock on the basis of 215 agreements.
ProSPeCtS For the SaLeS oF the wrSP StoCk’S LandS in Future yearS.
It needs to be emphasized that this year, over 25% of the WRSP Stock’s lands intended to be dispensed are go-ing to be prepared for sale. Although the Stock possesses approximately 2,100,000 ha, the “available net stock”
can be estimated for about 1,200,000 ha. It is so, because almost one milion hectares are part of lands: with flowing below 300 ha UR (including the lands
owned by the individual farmer).
SaLe oF the wrSP StoCk’S ProPetieS to LeaSehoLderS
Analyses conducted in the past three years show that almost 60% of lands dispensed by the WRSP Stock were sold without a tender procedure.
Nearly all of them are lands purchased by leaseholders, and only a small acre-age was bought by owners or their in-heritors. In 2008 and 2009, leaseholders purchased respectively 57% and 61.4%
of lands sold by the WRSP Stock.
In 2010, 96,500 ha of the WRSP Stock’s lands were sold, out of which leaseholders purchased approximately 50,000 ha. The area of lands leased out by the WRSP Stock decreased in 2010 by 93,700 ha, which proves that last year - like in previous years - there was a process of the “fluctuation” of lands from the leasehold to the ownership, as they were sold to their previous lease-holders.
In order to survey the scale od leaseholders’ demand on the WRSP Stock’s lands, leaseholders’ applications for the purchase of lands are monitored.
The results of the monitoring show that in most cases, local branches of ANR qualify lands indicated in the applica-tions as suitable for sale. Only in certain situations (ongoing work on creating or amending the local area plan or study, lack of a regulated geodetic and legal state, future construction of roads or assignment for other public purposes) the Agency cannot sell such lands.
ANR, in accordance with its or-ganizational and technical capacities, is able to prepare for sale over 300,000 ha of lands yearly in both 2011 and 2012.
The sales plan for 2011 has been set at 140,000 ha. One can assume, there-fore, that if the current trend of land sales is to be maintained, leaseholders
waters, waiting for starostas’ decisions that are the basis for ANR dispensing the lands to appropriate entities; being in perpetual usufruct or permanent management; remaining in leasehold of strategic stock-raising holdings and foreigners; unavailable for purchase by leaseholders due to the statutory limit of 500 ha arable lands; without a regulated legal state; reserved for public reasons;
unavailable for sale due to ongoing planning processes, undetermined di-rection of future roads or the presence of minerals to be examined.
Due to the fact that next year’s in-tensification of sales is to be achieved by selling previously unavailable lands subcject to reprivatization reservations, a considerable accelaration of privatiza-tion process will largely depend on the attitude of former owners and inheritors of properties. ANR’s previous experi-ences regarding the entirety of matters concerning reprivatization reservations allow to predict that some of the for-mer owners (inheritors) not interested in purchasing the property due to the pre-emption right (e.g. because of insuf-ficient funds) will undertake a variety of legal actions in order to hinder, be-late, or prevent the Agency from selling the property to a third party. Currently, there is no possibility of estimating the potential scale and weight of problems that may occur in this matter.
It must also be added that since some leaseholders do not intend to pur-chase farmed lands, the Agency often uses its right to auction such properties encumbered with the lease, regardless of their area. In 2009-2010, the Agency sold over a dozen properties encumberd with the lease of the area larger than 50 ha, including several properties larger than 400 ha.
The intensification of sales of the WRSP Stock’s lands is further hindered by a number of factors, including:
- the lack of area development plans in communes and ongoing work on amending existing local
develop-ment plans or studies of land use conditions and directions, which makes it impossible to precisely de-termine the future purpose of the lands, and consequently prevents their proper valuation and sale, - the presence of mineral deposits on
the WRSP Stock’s lands as well as undetermined direction of future roads, which makes it impossible to sell a large acreage of land, - a diminishing interest in purchasing
arable lands and a lesser effective-ness of tenders related to i.a. unfa-vorable income situation in agricul-ture,
- potential buyers’ problems with ob-taining bank loans for purchasing lands, which stems from increasing credit requirements for borrowers, - the fact that some of the persons and entities interested in purchas-ing lands (this includes leasholders) have already used up the statutory level of area available for purchase from the WRSP Stock (500 ha arable lands).
bibLioGraPhy:
1 Treaty establishing the European Community (Dz.U. [Journal of Laws] from 2004, No. 90. item 864/2).
2 Translated into Polish by Chan-cellery of the Sejm, http://biurose.
sejm.gov.pl/teksty_pdf_95/bp-8.pdf.
3 Translated into Polish ibidem.
4 OJ L 134, 28/05/1990 p. 0010, in-dex: 31990R1346.
5 Translated into Polish, http://bi-urose.sejm.gov.pl/teksty_pdf_95/
bp-8.pdf.
6 Source: http://www.odnowawsi.
republika.pl/roz17_05_1999.pdf.
7 Source:http://eurlex.europa.
eu/LexUriServ/LexUriServ.
do?uri=OJ:L:2005:277:0001:0001:
PL:PDF.
8 A. Lichorowicz, Konstytucyjne podstawy ustroju rolnego Rzecz-pospolitej w świetle art. 23 konsty-tucji, (in:) M. Wyrzykowski (ed.):
Konstytucyjne podstawy systemu prawa, Warsaw 2001, p. 115.
9 Compare A. Lichorowicz, op.cit., p.120-121 - though the author comes from the conclusion that Article 23 of the Polish Consti-tution differs from constiConsti-tutional norms in other European coun-tries and formulated as it is, this provision does not justify coun-tercting excessive concentration of arable lands; compare also L.
Garlicki, (in:) Konstytucja Rzeczy-pospolitej Polskiej. Komentarz, vol.
4, ed. L. Garlicki, Warsaw 2005, commentary to Article 23, p. 1-10 C. Banasiński, Konstytucyjne pod-2.
stawy porządku prawnego w gosp-odarce, (in:) Konstytucja. Trybunał Konstytucyjny, ed. C. Banasiński, J. Oniszczuk, Warsaw 1998, 36.
11 ZU 2001, No. 1, item 5.
12 Dz.U. No. 64, item 592 - as amend-13 Tak R. Sztyk, „Podstawowe zasa-ed.
dy kształtowania ustroju rolnego”,
„Rejent”, Issue 5/2003, p. 21.
14 Dz.U. from 2007, No. 231, item 1700 - as amended.
15 Dz.U. No. 98, item 634 - as amend-ed.