An article by Professor Wojciech Kocot – one of our Law Firm Partners and Dawid Buszmak, titled „Przekształcenie spółki handlowej będącej właścicielem nieruchomości rolnej” [“Transformation of a commercial company being the owner of agricultural real property”] was published in the July issue of Przegląd Prawa Handlowego [Commercial Law Review] (2017/7).
“The Act of 11 April 2003 on the Formation of Agricultural System (consolidation: Official journal: 2017 position 2196 – the ‘Act’), as amended by Art. 7 of the Act of 14 April 2016 on Suspending the Sale of Real Property of the Agricultural Property Stock of the State Treasury and on Amendments to Certain Other Acts, cannot be understood literally, because it leads to unacceptable interpretive results. Instead shall be taken into consideration the functional and teleological methods of interpretation. As far as the conversion of a commercial company owning agricultural real property is concerned, the main problem consists in the duty to obtain formal consent for acquisition of property of the General Director of National Farming Support Center – “the Center”. Simultaneously one must consider the Center’s right to purchase the agricultural real property which is to be acquired. The answer mainly depends on the scope of application of the norms regulating both rights, as well as on the interpretation of the concept of ‘acquisition of agricultural real property’. The latter seems to be crucial for applying the Act in case of the transformation of commercial company. The main part of the definition of the above concept is found in Art. 2 of the Act, but some vital elements of this definition were dispersed in several subsequent (but not consecutive) provisions of the Act. Eventually, it is necessary to claim that, as far as the transformation of the company is concerned, there is no statutory duty to apply before the acquisition of property from the General Director of the Center. Abovementioned conclusion means that the General Director was empowered by the Act in the competence of redemption in case of the transformation of the company. It is highly unlikely to promote the opinion that the legislator aimed to use the institution of consent for acquisition of property as a universal instrument to persuade the acquirers to transfer agricultural real property to farmers or to the State Treasury. Such presumed legislator’s intention – even considering the principle of family’s farms protection as a rudimental principle of agricultural system in Republic of Poland – should not be implemented by introduction of abovementioned unfair restrictions. It is better to assume that the legislator intended to release the company in transformation of the duty to turn for consent for acquisition of property due (Art. 2a paragraph 4 p. 1 of the Act) and control the procedure of transformation of the company by the institution of the redemption right. Considering this perspective, it is necessary to point out that legislator’s motives were articulated in a very unclear and vague way, which leaves to much room for manoeuvre and demands constitutive interpretation. Searching the reasonable ratio legis seems to be waste of time. Due to the transformation of company, there are confirmed the concerns that the statutory duties introduced by Art. 2a paragraph. 4 and art. 4 paragraph 1 of the Act are in total disagreement with the principles of decent legislation and with the principle of rule of law, Art. 2 and 31 paragraph 3 of the Constitution of Republic of Poland. (excerpts W. Kocot, D. Buszmak, Przekształcenie spółki handlowej będącej właścicielem nieruchomości rolnej, Przegląd Prawa Handlowego, nr 7/2017, str. 11 [W. Kocot, D. Buszmak, Transformation of a commercial company being the owner of agricultural real property, Commercial Law Review, 7/2017, p. 11] ).
We strongly recommended to all of you, who are interested in related problems, to read this article.
