The certificate relating to the quality of the soil, a new concept in Romanian legislation


Raul Andriuc, Senior Associate

Law no. 246/2020 on the use, preservation and protection of soil (“Law 246/2000”) entered into force on 1 January 2021. Its objective is, on one hand, to establish a unitary legal framework for the measures to be implemented and the actions to be taken to prevent soil degradation and, on the other hand, to diminish the amount of land withdrawn from agricultural use by their owners, based on the planning documentation.

Law 246/2000 provides for a general obligation on land owners to ensure the preservation, improvement and protection of soil and it introduced certain new obligations for owners, including, among others, an obligation for land owners to request and obtain from the competent authorities a certificate relating to the quality of the soil, according to a procedure not yet approved by the central authorities.

According to Law 246/2000, the certificate relating to the quality of the soil is the act certifying the quality of the soil, issued at the end of all works following which the layer of soil has been impaired or upon the transfer of land affected by economic activities that impacted the quality of the soil. Consequently, obtaining the soil quality certificate, for both types of land, i.e. within the limits of the city (in Romanian: intravilan) and outside the limits of the city (in Romanian: extravilan), is mandatory in the case of:

- a change of owner of the land / transfer of the land by means of any valid title, for land which was and/or is subject to the following activities: (i) existing or new agricultural, forestry and zoo-related activities; (ii) existing or new industrial and economic activities with a significant impact on the soil; (iii) military activities with a significant impact on the soil.
The “owner of the land” is defined by law as a natural or legal person owning or using land on the basis of a valid title or constructions of any kind. This means that the soil certificate is not only needed in case of a transfer of the land (e.g. by sale), but also in the case of the creation of other rights over such land (such as superficies rights, rights of use – e.g. the rights granted by way of agricultural lease agreements).
- the finalisation of any works where the soil layer is affected.

The authority entitled to issue the soil quality certificate is the National Research and Development Institute for Soil Science, Agricultural – Chemistry and Environmental Protection (ICPA) based on the soil quality report prepared by the Office for Soil Studies and Agricultural – Chemistry (OSPA) or by natural or legal persons certified to carry out soil quality studies.

The methodological norms for the implementation of Law 246/2000 have yet to be adopted and therefore no procedure for obtaining these soil quality certificates currently exists, meaning it is at present impossible to obtain a soil quality certificate and comply with the legal requirements in the case of the transfer of land or a change of owner.

Given that failure to obtain the soil quality certificate may trigger the nullity of relevant land transfer/ owner change operations, it seems that until the methodological norms are adopted and ICPA starts to issue the certificates, all changes of owner or transfers of land are in fact suspended.

Therefore, the authorities should consider the postponement of the applicability of the new legal requirement for the soil quality certificate until the issuance of the methodological norms in order to avoid a negative impact in various sectors of the economy where land needs to be transferred in order to be developed and/or used for commercial operations, such as in the agricultural, energy or real estate sectors.