OPINION 05/2004, on the Draft Bill amending Law 49/2003 of 26 November on farm leases
The structure of land tenure in Spain derives from legislation of which the chief mile-stone is Law 83/1980 of 31 December, which replaced a law passed in 1935 and adapted the rules on farm leases to two new realities: the passing of Spain?s 1978 Con-stitution and Spain?s subsequent accession to the European Union.The 1980 Law was repealed by Law 49/2003 of 26 November on farm leases which, according to its preamble, sought to make the existing rules on farm leases more flexi-ble and dynamic. But its passage through Parliament revealed the opposing positions in respect of the minimum duration of contracts and the disappearance of the right of pre-emption, along with professional farmers? poor opinion of it ? aspects covered in the draft bill with which the Opinion deals.The Council made a thorough analysis of the figure of professional farmer included in the draft bill. Although the Council questions whether this bill is the appropriate vehicle for introducing such a definition, since the bill refers only to farm leases, it judges that, if Parliament sees fit to include this figure in the bill?s text, it should be defined pursu-ant to what is provided in Law 19/1995 of 4 July, which defines the figure without re-gard to the sphere in which it is to be used.The definition of the figure of professional farmer should also include references to farming cooperatives, community land-working cooperatives and agricultural transfor-mation companies. The definition should also include community of property in respect of community members engaged in farming, and, where applicable, complementary activities in the rural environment.As regards the duration of leases, the Council unanimously welcomes the extension of the minimum period specified in the draft bill, from three to five years. But it notes that the specific duration should be in line with the provisions of the various structural measures and programmes affecting the sector.The Council assesses positively the recovery of the rights of pre-emption and preferen-tial acquisition in favour of the tenant, in keeping with the multifunctionality advocated by the CAP in farming activity. For these purposes the bill re-establishes the provisions of Law 83/1980 of 31 December, but not in their entirety. It would be advisable, as far as legislative technique is concerned, to transfer the text of the aforesaid law in its en-tirety.The Council also welcomes the requirement of written form for contracts made as from the Law?s entry into force.Given the widespread practice of making verbal contracts, for all contracts entered into before that date, the Council favours the presumption of the existence of a lease, in the absence of proof to the contrary, which would give improved protection to tenants. Finally, the Council judges that the effects of that presumption should not affect the rental amount. In this respect it notes that the updating of rental prices should be in line with the changes in the prices actually received by farmers, as was provided in article 38 of Law 83/1980 of 31 December, and, secondarily, with the retail price index.The organization ASAJA announced at the plenary session that it would submit a dis-senting Opinion.