Kunnan kiinteistönluovutusten oikeudellinen valvonta

Abstrakti

Judicial control of local authorities’ real estate transactions

Local authorities have a legitimate interest in pursuing economic development by means of land policy, that is, the selling and leasing of real estate. As a party to a real estate transaction, a local authority is subject to the same private-law rules and requirements governing the transaction as any person, but it must also observe the public-law rules and requirements governing decision-making by public authorities.

Finnish law allows for persons domiciled in a local authority to seek judicial review of the decisions of that authority merely by virtue of their domiciled status (actio popularis). This means that any resident or business domiciled in the local authority can file an appeal for the review of the legality of a decision to sell or lease real estate.

The author discusses the rules and requirements governing such transactions, including the principles of good government, decision-making competency within the local authority, contracting, and representation of the local authority, as well as the significance of the right to seek judicial review as a means to control the legality of the decisions of the local authority. The author then discusses the specific issue of EU State Aid rules and their application to local authorities’ real estate transactions.

The article contains an empirical discussion of 30 Administrative Court review cases in point, examining how the relevant norms have been applied in practice. It is also noted that under certain circumstances a pending judicial review does not preclude the implementation of the transaction, which allows for sufficiently important policy goals to be achieved regardless of review.

The author concludes that, by and large, there is reason to uphold the current system of judicial control of local authorities’ real estate transactions. This ensures that the interests of the residents are not overlooked, that there are fewer adverse effects on fair competition, and that there is less need for the more onerous control of State Aid compliance performed by the institutions of the EU.