What answers can be learned from the judgements in the cali apartments and the visser cases in relation to the judgement in the kob sia case? How can the member states’ margin of appreciation change in terms of land policy?

Abstract

Prior to the judgement in the KOB Sia case, the Member States’ margin of appreciation in land policy determined by EU law used to be defined by the primary legal provision concerning the free movement of capital, while the autonomy set forth in Article 345 TFEU in terms of the cases related to ownership did not play a significant role. The applicability of the free movement of capital required a cross-border situation, and it was recognised, at least in principle, by the case-law of the Court of Justice of the European Union that the land policy goals, such as the promotion of the creation of small and medium-sized farms and the alleviation of speculative pressure of agricultural land, are in line with the objectives mentioned in the primary law concerning the Common Agricultural Policy (CAP), which focuses on the preservation of the farmers’ quality of life. Following the CJEU’s judgement in the KOB Sia case, instead of the free movement of capital, the freedom of establishment and the services directive have been applied. Unfortunately, the national regulation at issue implemented direct discrimination on grounds of nationality. Therefore, the dogmatics of the new case-law was not revealed. In any case, the services directive includes no provisions concerning land policy and the relevant case-law gives priority to secondary EU legal acts over the provisions of primary law. Nonetheless, within the scope of the application of the services directive, the case-law recognises also public interest not included in the provisions of the directive. Even though the margin of appreciation in land policy became uncertain as a result of the legal development that arose from the judgement in the KOB Sia case, we are not completely left without clues. We shall juxtapose the judgements within the scope of application of the primary law and the directive, with particular regard to the requirement of a cross-border situation, the “strictness” of the applied EU control, and the particularities of the assessment of agricultural lands.