Bijlage 5

Plot exchange deserves to be further researched and elucidated from various sides. It is only possible to get an idea of the legal complexity, diversity and extensive application possibilities of the land use instrument when plot exchange is considered from various perspectives such as civil law, tax and international. As one of the fruits of this research, the ‘urban plot exchange’ proves that one should not only look at the agricultural sector.

The research was carried out on the basis of three research topics, which are:

With regard to the third cross-border research topic it should be remarked here that as well as international plot exchange, cross border within national borders (but outside of the primary legal playing field) has also taken place: the main features of the spatial, sociological and geographical aspects of plot exchange are discussed. Here it was noticed that the reiationship between plot exchange and spatial planning in the Netheriands is difficuit to define, to say the least: ciear coordination between designated use (spatial planning) and iayout (plot exchange) is absent. In that respect, the Netheriands can take a ieaf out of the Belgians’ book, who have cleariy and concisely detailed the reiationship between voiuntary plot exchange and spatial planning. Nevertheless, plot exchange is not really affected by the absence of this coordination with regard to spatial planning.

The rôle of sociology in plot exchange appears to be severely underemphasised. Evidently, plot exchange lawyers suffer from ‘tunnel vision’ in view of the fact that the legal and sociological aspects of plot exchange, although clearly present and having a huge influence on the deployability and effectiveness of the instrument, are not given a place in legal considérations and laws at all. I therefore recommend devoting more attention to the effect and influence of plot exchange on human society and (inter) human interactions.

The same applies, although to a considerably lesser extent, to the geography: the geographical ‘impact of a plot exchange project at rural level deserves the attention of the plot exchange practitioner.

In order to be able to deal with the first research topic the current plot exchange arrangement must first be put into a legal history perspective. It can be concluded that plot exchange has a particular and generally politically tinted background. Arising from the compulsory land consolidation scheme which in its turn was grafted on the market divisions, plot exchange profited in a certain sense from the delayed completion and long duration of the land consolidation scheme as well as the absence of public backing for the instrument. Already in the run-up to the second Land Consolidation Act (1938) there was a réalisation that as well as the compulsory land consolidation scheme, a consensual form of land use had to be implemented which could be used flexibly and rapidly. The first, cautious steps were taken on the voluntary path by the government by way of the land consolidation by agreement introduced in that year. In 1971 the voluntary child appeared to be strong enough to stand on its own feet and continued independently on its way to plot exchange, where the government influence was still only marginal. This step was successful: plot exchange was used frequently and successfully and the supporting financial subsidy and tax measures (exemption) paid off. The popularity of plot exchange is still just as great today. That does not alter the fact, however, that there is still plenty of parcelling-out work do to in the Dutch rural area in 2014.

Along the way plot exchange has continued to discard its public law jacket and has grown into a practically complete civil-Iaw form of land use.

From a civil law aspect there are still a few obstacles which could stand in the way of an effective application of plot exchange. In my opinion the sketchy and in part obscure legislative text, which insofar as its content is concerned is practically the same as the régulation under the Land Use Act (which in turn was pretty much copied in füll from the Land Consolidation Act 1954) is an example of apathetic and sometimes sloppy législation. Also in view of the equally sketchy explanation during the parliamentary debate, the impression arises that the législature wanted to quickly get off the subject of plot exchange. It would have been better if the questions and lack of clarity that already existed under the Land Use Act had been remedied in the WILG [Rural Areas (Planning) Act] by clear legislative texts, which are not eligible for various interprétations.

The ‘loose ends’ in the legislative text include the issue of the exact scope of the entrants régulation, the special route via ‘Article 88’ and the content and purport of the remarkable and undesirable phrase ‘transactions which can just as well take place outside of the exchange process’ from the parliamentary debate. Possibly a future évaluation of the WILG will allow for the existing uncertainty in parts to be removed by implementing the necessary changes and adjustments in the legislative texts.

The legislative text, which is not always clearly formulated, also leaves room for all kinds of civil law connections, which in turn invoke legal issues and lack of clarity. I am thinking here in particular of the hard-to-specify relationship between plot exchange and the ‘Book 7 exchange’ and the various, from the legal history explainable, ties with the legal concept ‘distribution’, In my opinion the current sketchy legislative text for plot exchange, which leaves such civil law matters unresolved, but nonetheless does use terms derived from civil law, is inadequate and moreover does not do justice to the own legal sphere which characterises plot exchange,

Moreover a good, solid legislative text eradicates cross-border conduct. Hence in the presence of a clear, unequivocal, statutory régulation, ‘Article 49 Book 7 Dutch Civil Code’ exchanges, disguised as plot exchange, have less of a chance of penetrating the civil law limits of plot exchange.

Finally, in my opinion the time is ripe to give plot exchange a place in the Civil Code as a special civil law agreement. Plot exchange can then definitively discard its WILG straitjacket which it grew out of years ago. Inclusion in the Civil Code does justice to the essential features of plot exchange. Moreover, the recent expériences with regard to the lease agreement have shown that transposition towards the Civil Code will benefit the accessibility and hence the popularity of the legal concept.

The adage ‘fiscal follows civil’ effectively reflects the actual state of affairs with regard to the tax handling of plot exchange: the tax authorities only have to ‘tick off the civil law requirements of plot exchange. With regard to tax matters, the playing rules, after a period of uncertainty, are therefore clear.

This ‘luxury position’ of plot exchange with regard to fiscal matters was not achieved without a struggle. The tax fortunes of plot exchange have a particularly stormy history, in which the fiscal Street scene was defined for years by policy decisions, letters from the state secretary, assessments, a flow of case law and obscurity in literature and practice.

Those days are behind us now however, although various interesting lessons can be drawn from them. Now the tax man is on the second plan, and the playing room for the Dutch Tax and Customs Administration has been reduced to a minimum. Only the fraus legis doctrine can, where applicable, be taken out of the tax stable as a last resort to torpedo a tax inadmissible plot exchange. The tax gates are therefore wide open in the WILG.

Aside from this tax change of course the text of the tax exemption of Article 15, Paragraph 1, section I, WBR [Legal Transactions (Taxation) Act] should be updated in my opinion: references to statutory arrangements which are no longer applied in practice because they have expired or been replaced by other régulations should be scrapped. In addition, I recommend supplementing the WBR with a text proposai that I have formulated, where the unwanted loss of a tax exemption for transfer tax due to the title releasing effect of an interim reallotment deed is no longer relevant. The législature should also consider a statutory régulation for tax substitution of property within the limits of plot exchange.

The current tax situation which exists since 1 January 2007 can be called very practical but is unsatisfactory legally and substantively. I find fraus legis too ineffective and inadequate a means to combat bogus schemes intended to share in the tax facility via a construed plot exchange.

Moreover, the freedom offered burdens the practice with huge responsibility. Tax freedom is a great asset, but in my eyes not a carte blanche to construe all kinds of transactions as plot exchanges, merely to benefit from the tax exemption. Even though it may be very admissible from a civil-law point of view, the practice should be forewarned against an unrestrained use of plot exchange merely for tax benefit. In the long term, plot exchange could possibly fail due to its own success because the government would be forced to call a tax hait to the ‘runaway’ plot exchange practice. However paradoxical it may sound, overenthusiastic use of the acquired tax freedom in the short term could lead to restriction of this freedom in the long term. Therefore the tax aspects of plot exchange must be dealt with carefully.

In this respect, the convergence with and the comparison between the ‘plot exchange exemption’ and other agricultural tax exemptions in the WBR were researched. This showed that for convergence between sections 1 and q the choice always falls on section 1, in view of the unconditional intent of this exemption. When this unconditional intent is compared to the other exemptions researched, this appears to be a unique situation. Section 1 must therefore count its blessings.

In light of the above inconvenience with regard to the almost unlimited tax freedom on plot exchange it was also researched, in the scope of the tax comparative law exercise, whether the exemption of section I could be further restricted in any way using éléments from the other exemptions, such to prevent potential tax cross-border and hence inadmissible conduct. This research showed that many purely agricultural grafted further conditions could notbe transitioned to section 1, because plot exchange has not been exclusively agricultural by nature and content for a long time. It did appear that there was room for some restriction of section 1 without this being at the cost of the exemption’s effectiveness. In particular the introduction of a follow-up period (or more specifically, a possession period) should be considered.

A latent danger does lurk in the strong emphasis on the tax facilitation of plot exchanges in my opinion: should the government ever décidé to abolish the transfer tax, then plot exchange will suddenly lose an extremely important foundation. Nevertheless, in my view, even in such a situation there is still ample need for a fast and flexible manner of land exchange to improve the use of the rural area, meaning that plot exchange would survive such a blow. The civil law advantages and particulars of a plot exchange, even in the event of any lapse of the tax facilities, still remain present and constitute an adequate reason in such a situation to continue to ‘join, allocate and distribute’. The tax facility may well be an important cornerstone but it is not a Toad-bearing wall’ under plot exchange. After the élimination of the tax facility, the trias has become a tandem and the subsidy will have to take the lead to compensate the tax loss.

The current interaction between civil, tax and (albeit to a lesser extent) subsidy (see hereinafter) must be seen as the optimum situation, whereby there is a certain balance between the various éléments which make plot exchange a successful formula. It should be remarked that the tax facility now compensâtes and transcends the crumbling interest of the subsidy.

As well as the considération of the civil law and tax aspects of plot exchange the subsidy forms the third and last component of the trias which has branded piot exchange a ‘success formula’ since its introduction in 1971.

However, at subsidy level, a lot of things have taken place in recent years. Here the continuai further décentralisation of the subsidy route is, in my opinion, a détérioration compared to the central system as applied under the Land Use Act. Obviousiy, at least theoretically, there is more concrete knowledge of the local situation and the measures required in individual cases at a provincial level, but the provinces have considerably reduced the uniformity that existed until that time in their independent subsidy schemes. A certain extent of diversification accompanies the policy freedom of each province, but for a flexible use of plot exchange in the Netherlands a certain extent of coordination between the various subsidy ordinances is essential in my opinion. The ‘user’ of the plot exchange instrument, just as is the case in civil and tax fields, must also know the lay of the land in the subsidy field. A system where varying conditions for subsidisation apply per province in which the amount of the subsidy also differs considerably per province, is, in my opinion, incompatible with this need for clarity.

In my opinion, in the matter of subsidy a renewed balance between the wishes, departure points and opinions which are present in a certain province on the one hand and a certain degree of streamlining and/or coordination which should take place between the various provincial régulations on the other hand must be sought in order to guarantee an effective provincial cross-border use of plot exchange. It must be prevented that the subsidy, due to the restrictions and additional requirements which apply per province, even more so than is the case now, becomes a ‘consolation prize’ in the total plot exchange process. I also see a rôle for co-financier Europe within this ‘reconsideration’.

Despite the often relatively subordinate financial interest with regard to the tax exemption, subsidy forms one of the foundations of the plot exchange ‘building’. In these economically barren times the central government and the provinces must be extremely aware of this in their urge to décentralise. Plot exchange can only be a properly working instrument in 2014 in the toolbox of the practice, government bodies and the agricultural advisor, if the trias civil-tax-subsidy worlcs properly.

In my opinion the Netherlands should take a leaf out of its neighbours’ book, Germany and Belgium, on the matter of subsidy, where the subsidy policy, with regard to both amount and content, is unequivocally and effectively designed.

The legal history research showed that land use is continually subject to substantive and organisational changes. Stimulated by the social, political and economie context, one vision after the other followed the use and the design of the rural area. This means the land use can be characterised as the textbook example of ‘law in development’.

During this continuai évolution of the land use instrumentation, seen from the view of the législature, continuai attention to social acceptance of and backing with regard to land use at a local level is needed. As a voluntary form of land use where the social backing is practically always very good, plot exchange can fulfil a useful pioneering rôle in this respect.

The rural area has lost its status as the exclusive domain of the farmer throughout the years. This also means that a ‘new reality’ has arisen, where the agricultural sector has become one of the players (albeit still a relatively large one) on the land use playing field.

These development directions, mainly based on political choices and visions have had their repercussions on plot exchange, which over the years has developed into a multifunctional usable land use instrument. It is striking that the element ‘voluntary’ is seen by the government more as a threat than as an opportunity. Plot exchange is therefore benefited by and in a certain sense dépendent on adequate political backing.

In addition, the knowledge of and attention devoted to plot exchange at national government level must be safeguarded at ail times and where necessary improved. A répétition of the parliamentary ‘makeshift solution’ as occurred during the parliamentary debate on WILG could possibly be prevented in this way.

Finally, the notarial profession is broadly discussed in this research. The message to this profession should be clear: plot exchange is a great market for the notary skilled in this matter. The agricultural notary must therefore embrace plot exchange and must actively and expeditiously set to work on it. The expériences in Germany show where a passive attitude and an inefficient procédural working method in the field of the voluntary exchange of land can lead: the notary has disappeared entirely from the land use stage there. In the Netherlands, the notary still fulfils an important task in this field and moreover is blessed with a domain monopoly.

The Dutch notary can therefore consider himself lucky with this prominent role in the plot exchange process. In my opinion, if he can perform his duties properly, he will be seen as the executor of plot exchange, unlike his Belgian colleague who is limited to the role of administrator just like the Dutch notary in the Dutch reallotment process. An active and expert notary in this respect is a billboard for plot exchange, both towards ‘the market’ as well as towards politics.

It should also be noted that the notary should carry out his plot exchange tasks carefully, accurately and within the civil law and tax limits of the land use instrument at all times, such possibly subject to the risk of being held liable under civil Iaw.’Belehrung’ (instructions on legally-recognised rights) with regard to the civil Iaw and tax conséquences of land use also form part of these notarial tasks. The notary should be aware that his responsibility in tax matters has considerably increased since the tax change of course as of January 2007: in the absence of points of reference in the form of approval from the government, the notary must independently assess the tax merits of plot exchange agreements.

All in ail, knowledge of all dimensions of plot exchange is a notarial condito sine qua non. This knowledge should be safeguarded for the future and where necessary expanded.

A comparative law-based look inside the plot exchange kitchens of our ‘neighbours’ Germany and Belgium was needed to discuss the second research topic and has produced great results. Firstly it became apparent that the content of the ‘plot exchange law’ of a country is Iargely determined by the country’s historical and social background and developments. To an important extent, the content and design of the législation is adjusted to the views of the population with regard to land use.

In addition, it has become clear that Germany can be seen as the cradle of the current day land consolidation civilisation and a shining example for most Western European countries. The idea that -historically speaking – land consolidation and plot exchange are closely related to the legal concept of distribution first arose in Germany, where the German word Umlegung put me on to the distribution track.

In addition with regard to the freiwilliger Landtausch (voluntary plot exchange) the Germans are blessed with a thorough and properly functioning System where, contrary to the Dutch plot exchange, the presence of two participating parties is already enough.

Also in the subsidy field and with regard to tax matters it is clear how things work in Germany, so that Gründlichkeit (‘thoroughness’) can be justly spoken of,

The presence of the Surrogationsprinzip (surrogation principle) in German législation, both legally and with regard to tax matters, as a ‘counterpart’ for the Dutch title release which manifests itself in réallocation, is in my view a very fitting System for Dutch plot exchange that should certainly be considered by the législature.

At a terminological and ideological level, the Belgians have a proper statutory régulation for voluntary plot exchange. Unfortunately tins régulation is less successful in a practical aspect: excessive government influence and bureaucracy have ensured an unnecessary and undesirable inhibitory effect on the voluntary variation of land consolidation. The Belgian System contains a for my taste remarkable and legally illogical concerted action between the doctrines of substitution of property and title release.

Further, with regard to tax matters, just as is the case in Germany there is a clear system: a ‘plot exchange’ approved by the government will automatically qualify for the tax facility. It has become apparent that with regard to tax matters the Belgians are fighting against improperuse of the land use instrument, a development which has also been seen in the Netherlands.

Further, the comparative law research has also shown that where the Dutch plot exchange is increasingly being ‘driven away’ from its agricultural core, its German and Belgian equivalents are still in ‘agricultural spheres’.

Subsequently a course has been set towards Europe. Plot exchange has little to fear from this supranational possibility but unfortunately also not much to expect. The focus of European agricultural policy lies on income support to European farmers and sustainability of what they produce, i.e. the first cornerstone of the Common Agricultural Policy (CAP). It is true that there is perceived growing attention for rural development and therefore the second cornerstone of the CAP, but as long as an expansion of the Investments in the latter area is fully at the expense of the available funds for income support, the rural development policy (RDP) and therefore the financial support for plot exchange at European level will always be a poor relation.

It should be remarked in this respect that the second cornerstone of the CAP for plot exchange certainly does not offer the stability of a ‘load-bearing wall’. In a constructive aspect, the minor European share in the funding of plot exchange is therefore not a major shortcoming, but funding is desired, in view of its important function as a Tubricanf.

For the time being, though, no miracles need be expected in the area of harmonisation of land use législation from Europe. However, cross border projects such as Interreg and CROBECO may offer opportunities for a cross border use of plot exchange.

A limited vision has dominated plot exchange within land use spheres for a long time in a territorial sense: the instrument should only be applied within the country borders. However, legal consciousness has developed since then, albeit very gradually. In my opinion, the days of an exclusively nationally tinted view of land use in general and plot exchange in particular are defmitively over, and a more international view is required. The third research topic therefore focuses on cross border plot exchange.

I am positive about the fact that the first cross border récognition has already taken place in practice. In my eyes, the ‘de Slinge’ project – in which a cross-border plot exchange was applied for the first time in history – marks the starting point of a further, internationally-oriented use of plot exchange. The ball is now in the court of the national and supranational authorities and implémentation agencies, who must further develop this cautious beginning. This continued development however will not be easy, in view of the fact that the time is still not ripe for a structural, cross- border legal approach to plot exchange. Cross-border plot exchange, as a concept and incentive for further globalisation, is nonetheless désirable. In my view, the existing practical and legal objections which are largely to blâme on the ever-present sovereignty of the EU member States in the land use area may not stand in the way of the further deliberations on and élaboration of the cross-border plot exchange.

As well as the aforementioned extemal cross border, attention must also be devoted to an internai cross border. This means the control of the civil law and tax aspects of plot exchange and the relationship between both legal areas. Plot exchange has a hybrid nature.’Multilingualism’ is therefore a basic condition for any lawyer who is professionally involved in plot exchange.

One is not possible without the other: external cross border activities will only be successful when there is proper insight into and control of the internai limits of plot exchange. It is possible that the emphasis must be on this for now, independent of a single cross-border pilot project. In my opinion there is still a lot of work to be done. The practice, authorities and the notarial profession must be convinced of the added value of Dutch plot exchange. Where statutory réallocation – as the successor of land consolidation – is increasingly being seen as ‘a traditional land use instrument’, in my eyes plot exchange should be seen as a newer and more modern variation, which due to its small scale is able to adapt more rapidly than the ‘old’ réallocation to changing circumstances and new areas of application. It is therefore time for a ‘silent plot exchange révolution’. As the land use chameleon, plot exchange can be used for a wide variety of purposes. In my view, this ability to adapt is still inadequately acknowledged and used. Therefore: ‘Clear the way for plot exchange’!

Vertaling: Radboud in’to Languages, Expertisecentrum voor taal en communicatie.