Introduction |
In the past 19 years, Romania has lost as much forest land as other countries
have lost in the whole of the last century. Such an abrupt and catastrophic loss
made it an absolute imperative that the nation’s remaining forests be preserved
through a combined effort at biodiversity, the ecological reconstruction of
existing forests, effective fire prevention, and the regulation of wood
exploitation. Until recently, compliance with existing laws designed to protect
Romania’s forests has more often been avoided and ignored than enforced and
honored. This was partially due to the poverty of some who depend in winter on
illegally obtained wood, and partially upon the greed of others who simply
choose to ignore the law and the grave harm that uncontrolled deforestation
creates.
In March 2008, the Romanian Parliament passed Law 46/2008 adopting a new
Romanian Forest Code (hereinafter refer to as the “Forest Code”).
Necessity aroused Parliament to enact the new Forest Code because the prior law
had been amended so often that confusion alone caused many acts of
deforestation. The new Forest Code embodies the government’s desire to prevent
uncontrolled deforestation, increase public awareness of diminishing forest
land, and enforce a better crafted and more understandable law. |
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Forest Ownership in Romania |
The Forest Code provides that forests can either be public property or
private property but, whatever the case may be, all forests are of
national interest, falling within the protection of the state and not
local authorities. The law allows for privately owned forest land to be
enjoyed by the owners, and even sold or transferred, but in accordance
with the provisions of the Forest Code which limit the exploitation of
their ownership rights, and expressly prohibits any construction on
forest land.
Forests that are the public property of the state are administered by
Regia Nationala a Padurilor – ROMSILVA (hereinafter ROMSILVA), which
functions under the authority of the Ministry of Agriculture and Rural
Development. Forests that are the public property of localities are
administered by special forest administration entities.
The Forest Code provides that ownership of private forest land cannot be
divided into plots of less than one hectare. This limitation applies for
both inter vivos and mortis causa property transfers. If
through testamentary proceedings, the property must be divided into
plots under one hectare, then the inheritance will be construed to the
benefit of one or more heirs at the minimum level established (one
hectare) and, in turn, that beneficiary will have to compensate the
remaining heirs. That compensation derives either from the division of
the inheritance, if possible, or from the private funds of the
beneficial heir. |
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Obligations of the Private Owners |
As noted above, there is a requirement that forests be placed under
special administration. This obligation applies to both privately owned
forests and those publicly owned. In accordance with the Forest Code,
the administration of privately owned forest land is performed by
private special administration entities that function as an association
or a foundation, as per the relevant legislation in the field. Therefore
the private forest owners have to either incorporate such entities
themselves or remain within such already incorporated entities. The
special forest administration entities can operate independently or by
way of agreements with other such entities that are larger and have more
resources. By incorporating or adhering to these entities, the private
forest owners fulfill their obligation, pursuant to the Forest Code, for
all forest land to be placed under special administration and to benefit
from special services and maintenance.
Forest
owners, be they private or public, have the following obligations in
regard to their property: to ensure the drafting and abiding by the
forest plan (i.e., a deed documenting the physical and legal state of
the forest and the elements in it), to ensure the security and integrity
of the forest, perform forest regeneration efforts, plant trees and
maintain them, treat against and prevent pest infestation, abide by fire
prevention and fire extinction regulations, exploit the wood in a lawful
manner, ensure the maintenance and repair of forest roads that pass
through their property, and properly enclose their forest land as per
the ownership deeds. The owners must ensure for the protection of the
forest from illegal wood cutting, storms, other forms of destruction,
degradation, farm animals’ feeding, as well as any other actions that
could harm the forest. Moreover, the owners are obligated to notify
ROMSILVA of any ownership transfers regarding the forest within 60 days.
All of these obligations fall within the purview of the special
administration entities once they are authorized.
If an owner does not comply with the obligation to perform forest
regeneration, the competent authorities may perform reforestation
efforts instead at the expense of the owner.
According to the provisions of the Forest Code, the Romanian state is
not merely interested in the preservation of the national forests, but
also in acquiring new forest lands. While the state’s public policy is
characterized by a substantial interest to buy new private forest lands,
the conditions in which this might occur depend on the administrator of
the public forest. For private forest lands that are located in or are
bordering a forest that is public property, the state has a pre-emptive
right to purchase them if they are to be sold, at the same price and
conditions of the proposed sale. The seller is obligated to notify in
writing the forestry administrator of the public state forest of the
intention to sell. The state can then exercise its pre-emptive purchase
rights within 30 days after the receipt of notice. A breach of this
notification obligation nullifies the sale-purchase agreement by virtue
of law. If the administrator of the public forest does not submit in
writing his intention to purchase the land within 30 days, the sale of
the land may proceed unrestricted.
As a consequence of the great importance that Romania pays to its
national forests, the Forest Code provides that any and all actions that
negatively affect a national forest are crimes. |
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Rights of Exploitation |
In the exploitation of a forest, the owner must comply with the special
provisions regarding the exploitation of wood and wildlife. Logging may
occur only after a special authorization for wood exploitation is
obtained. Wood can only be exploited by companies certified in the
cutting and transporting of wood. Private owners can only exploit their
forests by themselves up to a maximum of 20 cubic meters per annum of
wood from the forest they own. After this limit they must hire a
certified company. The owners can freely exploit the trees that have
been accidentally uprooted or that have been cut down illegally. The
rest of the trees have to be marked for cutting by the competent
authorities in order to be exploited. Hunting animals on forest land is
also prescribed under limited conditions. |
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Deforestation |
The
Forest Code prevents any forest that is currently state public property
from becoming private property or to be dismembered in any way. The
Forest Code provides that the size of a national forest cannot be
reduced. According to Article 36 of the Forest Code, there is only one
exception to the rule that national forest land cannot be reduced – a
demonstrable need by a public utility pursuant to law. In such case, the
utility has a choice between two means of compensation: to provide an
equivalent amount of land to substitute for the amount taken; or to pay
for the forest land utilized.
The Forest Code (Art. 37) does provide for certain situations in which
forest land can be permanently excluded from the national forest without
diminishing the size of the country’s forest area in the following
situations:
- The exploitation of natural resources: coal, rock, aggregate
minerals, minerals and mineral water;
- Tourist facilities - tourist accommodations, churches, social,
sporting and medical facilities, hydro-technical constructions,
sources of drinkable water;
- Houses or vacation homes - this situation is specific only for
private property forests and only under the following terms: the
building and the land have to be the property of the same person and
the maximum area (including the building, the access way and the
fence) must represent no more than 5% of the total area of the
private forest, but no larger than 200 sq. m.
- The forest facilities created prior to 1990 that are mentioned
within a respective forest plan in the “occupations and litigations”
section and that had been in effect from January 1, 1990.
Compensation for deforestation is sought primarily in land, not cash.
The compensation provided for in the Forest Code is for land that has
five times the value of the plot of land that is to be deforested and an
area that cannot be less than 33% of the deforested area of land.
Moreover, the land offered as compensation must come from outside of the
national forest areas and must border it. Compensation can also be
offered in land that does not border a forest area. However, such land
has to have a compact surface of at least 20 hectares. The land also has
to be suitable for forestation. This method of compensation for land
taken from the national forest allows the authorities, in principle, to
skip the difficulties of acquiring land themselves and ensure that the
land given as compensation is properly forested to replace the lost
forests.
Besides the abovementioned conditions, the land used for compensation
needs to also meet some other requirements such as:
- The lands used for compensation have to be registered in the
forest plan and they have to be put under the forestry
administration or services within a 30 day period from the date of
the approval of the transformation of the forest land. Furthermore,
the land used as compensation needs to be forested within the next
two vegetation seasons.
- In the counties with forests that comprise less than 16% of the
total surface of the county, the compensation has to be made with
land from the same county. The purpose for this condition is
obvious: the law seeks to protect each county’s forest lands and
preserve the existing percentages.
One of the most important consequences of such compensation is that
the land excluded permanently from forestry enters into the ownership of
the beneficiary and acquires the designation for which it has applied
and for which the whole procedure has taken place (Article 38 from the
Forest Code). The land given as compensation acquires the legal status
of the replaced land from the national forest area. Not all of the land
in Romania can be used for compensation. For example, land within the
protective area of the state border cannot be used as compensation.
As noted above, land can only be excluded from the national forest
for a specific purpose that must be one of the expressly provided
categories described above. The Forest Code provides for a prohibition
in changing that specific purpose for a period of five years after the
approval of the exclusion of the land. Therefore, if a beneficiary,
after having taken a plot of land out of the national forest, does not
use it for the purpose for which the authorities approved the
deforestation, he will face the automatic cancellation of the order of
the minister or the Government decision that approved the removal of
that parcel from the national forest. The land thus reverts to its
initial status as forest land and the former beneficiary bears all the
expenses for re-foresting.
Persons interested in excluding lands from the national forest also have
some monetary obligations which consist of:
- The tax for the permanent exclusion of the land from the
national forest;
- The payment of the market value of the land;
- The market value of the loss of the vegetation caused by the
exploitation of the wood before the age of technical exploitation,
i.e., the difference in value between what would have been obtained
if the wood would have been exploited at full maturity and what has
been obtained by exploiting it at that respective moment and at that
state of growth;
- The market value of any affected goods that might have been on
the respective plot of land; and
- The cost of forestation and the upkeep costs until the age of
maturity of the forest.
All the monetary obligations have to be paid before the application
and commencement of the procedure for excluding land from the national
forest.
Besides the procedure of applying for a certain area of forest land to
be excluded from the national forest by way of compensation, the
interested parties also have the option of occupying the forest land for
a predetermined period of time, necessary for the specific intended
purpose for the land, but for not more than for 10 years. For the
occupied forest land, the occupier has to pay a rent to the
administrator or to the owner. The rent is paid on January 31st for the
year it is owed, and it is calculated according to what is stipulated by
the law in effect on January 1st. In addition, for lands temporarily
excluded from the national forestry, the occupier has to fulfill certain
monetary obligations in the Forest Code. All monetary obligations must
be paid before the application and approval for the land to be taken
from the forestry is approved.
Another situation that gives rise to a temporary occupation is where the
complexity of the purpose for which the land has been permanently
excluded from the national forest requires the temporary occupation of
an area in its vicinity. Such temporary occupation of the area in the
vicinity is possible for a maximum of one year and on no more than the
equivalent of 10% of its area, for the purpose of a construction site.
The applicant requesting forest land for temporary or permanent
exclusion is entitled only to the land in itself. The wood has to be
returned to the owner or to the administrator in the case of public
forest land. |
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Conclusion |
Perhaps
the preservation of Romania’s forests might have been better achieved by
a piece of legislation that is simpler, more to the point, and far less
bureaucratic, than the new Forest Code. There is now only one piece of
legislation to confuse us instead of a Code with numerous amending acts,
and circuitous and tortuous procedures that were followed more in their
breach than in compliance. Nevertheless, the passage of the Forest Code
is a major step forward in the protection of one of Romania’s most
valuable assets – its forests. Hope abounds that it will be strictly
enforced. |
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Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
are made.
Copyright 2008 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
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