The Protection of Property Rights in Comparative Perspective : A Study on the Interaction Between European Human Rights Law and Italian and French Property Law 9789089521347, 9789089521330

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Sabrina Praduroux

The Protection of Property Rights in Comparative Perspective

Europa Law Publishing European Studies in Private Law (6)

The Protection of Property Rights in Comparative Perspective

Europa Law Publishing, Groningen 2013

The Protection of Property Rights in Comparative Perspective A Study on the Interaction between European Human Rights Law and Italian and French Property Law Sabrina Praduroux

European Studies in Private Law (6)

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, Sabrina Praduroux, 2013 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam NUR 822; ISBN 978-90-8952-134-7

Preface This book illustrates and discusses the intersections of European and national laws with respect to the protection of property rights. It shows, first of all, how discourses on property laws and rights at the European level serve disparate purposes, and thus maintain weight in the contemporary age. France and Italy are the two countries selected to cover the transformative influence of the dynamics of European integration on the protection of property rights at the national level. Their laws have much in common, but my research also shows why they deserve a comparative study. To be clear, however, I do not in any way intend to suggest that they are representative of other national experiences in Europe. The book has been written keeping in mind the needs of readers who may not be fully familiar with some general doctrines of European law. Therefore, it covers them to provide the necessary background to the central subject, and to build a comprehensive, integrated view of the subject. During these years of research and writing I have contracted many debts. It is a pleasure to have the occasion to acknowledge them. I wish to express my gratitude to Professor Michele Graziadei of the University of Torino for his encouragement and help. As coordinator of the research project The Making of a New European Legal Culture. Prevalence of a single model, or cross-fertilisation of national legal traditions? he supported the research leading to this publication, and provided guidance on some of the issues covered by the book. I wish to thank Professor Kaarlo Tuori, Professor Jaakko Husa, Professor Vladimiro Zagrebelsky (former judge at ECtHR), and Professor Pekka Länsineva, for their insightful comments on an earlier version of this work, which was defended as a doctoral thesis at the Faculty of Law of the University of Helsinki. At the same University, Professor Thomas Wilhelmsson, Director of the graduate school ‘Foundations of European Law’, and now Rector of the University, and Professor Pia Letto-Vanamo, Director of the Institute of International Economic Law, provided me with a splendid opportunity to study and do research in a very stimulating environment during the four years of my doctoral studies in Finland. I am also deeply grateful to Professor Lionel Smith, Director of the PaulAndré Crépeau Centre for Private and Comparative Law of the Faculty of Law of McGill University for welcoming me as visiting scholar for the academic year 2008-2009, and to Professor Rodolfo Sacco, emeritus of the University of Torino, who made that visit possible. Turning back to consider my research path during the last years, I realize that the list of colleagues and friends who generously commented on some of the ideas presented here, or helped me in one way or another, is longer than I ever thought. I wish to thank them for their generosity and friendship. Without them, my work would not have been the same. Sabrina Praduroux

v

contents

Preface Contents

v vii

Introduction Introduction 3 1 Fundamental Rights Protection in Europe: A Matter for Tension and Judicial Collaboration 5 2 A Comparative Approach to Property as a Fundamental Right 8 chapter 1

European Human Rights Law: the Context

Introduction 1 Human Rights: From Ideology to Law 2 The European Convention on Human Rights: Its Origin and Evolution 2.1 The European Court of Human Rights as a Laboratory of Legal Doctrines 2.1.1 Updating the ECHR Rights in the Light of Present-Day Conditions: The Autonomous Meaning and the Living Instrument Doctrines 2.1.2 Securing an Effective and Practical Protection of ECHR Rights through Positive Obligations 2.1.3 Making Rights Effective in the Private Sphere: The Horizontal Effect of the ECHR 2.1.4 The Spectre of Judicial Activism 2.1.5 Strasbourg Constitutionalism: Its Foundations and Limits 3 The European Court of Justice as Promoter and Guardian of Human Rights and Fundamental Freedoms in the European Union Space 3.1 The Foundations of EU Human Rights Law 4 Which Fundamental Rights for the European Union? 4.1 The Four Fundamental Freedoms 4.2 The Charter of Fundamental Rights of the European Union 5 The European Agency for Fundamental Rights 6 The Relationship between the ECHR System and the European Union Conclusion

17 18 19 22

24 28 29 32 34

37 37 39 41 42 43 44 48

chapter 2 The Protection of the Right to Property under

European Human Rights Law

1 1.1 1.1.1 1.2 1.3

Introduction Article 1 of the First Protocol to the ECHR The Material Scope The Meaning of Possessions The Personal Scope The Temporal Scope

53 53 55 56 58 60 vii

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1.4 The Three Rules for the Protection of the Right of Property 1.4.1 The First Rule: The Guarantee to the Peaceful Enjoyment of Possessions 1.4.1.1 The Positive Obligation to Protect Property in the Sphere of Dangerous Activities and Weather Hazard 1.4.1.2 The Positive Obligation to Compensate for Decrease in Property’s Value 1.4.1.3 The Positive Obligation to Adjudicate Property Litigation between Private Persons 1.4.2 The Second Rule: the Guarantee against Arbitrary Deprivation of Possessions 1.4.2.1 De Facto Expropriation 1.4.3 The Third Rule: The Guarantee against Arbitrary Restrictions to the Right of Property 1.5 Remedies 2 The Relationship between Article P1-1 and other Articles of the ECHR 2.1 Article P1-1 and the Right to a Fair Trial (Art. 6) 2.2 Article P1-1 and the Right to an Effective Remedy (Art. 13) 2.3 Article P1-1 and the Right to Respect for Private and Family Life (Art. 8) 2.4 Article P1-1 and the Prohibition of Discrimination (Art. 14) 3 The Right to Property within EU Law 3.1 The Protection of the Right to Property as Judicial Acquis 3.2 Article 17 of the Charter of Fundamental Rights of the European Union Conclusion

62 63 64 66 69 73 76 79 80 83 84 85 85 86 88 91 93 94

chapter 3 The Interaction between European Human Rights Law

and National Law in Italy and France

Introduction 1 The Authority and Prestige of the ECHR in the National Legal Orders of the Contracting States 1.1. The Reception of the ECHR in Italy 1.1.1 The Circulation of the ECtHR Case Law in Italy 1.2 The Reception of the ECHR in France 1.2.1 The Circulation of the ECtHR Case Law in France 2 The Direct Effect and Primacy of EU Law 2.1 The Reception of the Direct Effect and Primacy Doctrines by Italian Courts 2.2 The Reception of the Direct Effect and Primacy Doctrines by French Courts 3 European Human Rights Law between Supremacy and Subsidiarity Conclusion viii

99 99 101 104 105 109 109 111 112 114 116

contents

chapter 4

Property in the Italian and French Legal Traditions

Introduction 1 The Right of Property as a Social-Economic Institution in the Italian Legal System 1.1 The Concept of Property 2 The Right of Property as a Fundamental Right and Freedom in the French Legal System 2.1 An Evolutive Concept of Property 3 The Fundamental Nature of the Right of Property in Domestic Law Conclusion

123 126 132 132 139 141 143

chapter 5 European and National Courts’ Approaches to

Interferences with Property Rights

Introduction 1 The Rule of Law: The Hallmark of Modern Democracies 2 Human Dignity: The Founding Value of Modern Human Rights Law 3 The Ever Evolving Concept of Equality 4 Solidarity as Ratio Fundamentalis of Social Duties and Rights 5 The Lawfulness Requirement: A Substantive Approach to the Legality Principle 6 The Legitimate Aim Requirement and the Open-End Concept of General Interest 7 Standards of Justification for Interferences with Property Rights 8 Interferences with the Right of Property in Conflict of Rights Cases 8.1 Right of Property v. Freedom of Expression 8.1.1 Intellectual Property Rights v. Freedom of Expression 8.2 Right to Respect for Private and Family Life v. Right of Property 8.2.1 Right of Property v. Environmental Rights 8.2.2 Right of Property v. Right to Respect for Home Conclusion chapter 6

149 149 154 157 162 165 170 176 185 189 191 193 196 198 202

Property Rights and Fundamental Values in Adjudication

Introduction 1 The Rule of Law and the Proceduralisation of the Right of Property 1.1 Right to Judicial Protection 1.2 Good Governance Obligations 2 The Principle of Equality and the Monetization of the Right of Property ix

207 207 208 215 218

the protection of property rights in comparative perspective



3 Dignity, Solidarity and the Socialization of the Right of Property Conclusion chapter 7



224 229

The Incidence of Property as a Fundamental Right

1 The Different Institutional Role of the two European Courts 2 The Different Nature of Claims brought before the ECtHR by Italian and French Applicants 3 The Incidence of European Human Rights Law on National Law 3.1 The Incidence of the Requirement of Lawfulness 3.2 The Incidence of the Legitimate Aim Requirement 3.3 The Incidence of the Fair Balance Principle 3.4 Some Critical Remarks 4 Towards a Common Understanding of the Right of Property? 4.1 Some Reflections on the Notion of the Right of Property from the Ideological Perspective 4.2 Some Reflections on the Scope of the Right of Property from the Theoretical Perspective

Bibliography Table of Cases Index

x

235 237 238 239 240 240 241 242 242 247 254 280 296

Introduction

introduction

Introduction Property is an institution that varies across time and space in response to evolving technology, new social structures and values, different ways to run the economy, and changing political, philosophical, and religious ideas. The ambition of this book is not to delve into these deep waters but to examine how the construction of a closer union among the peoples of Europe carried with it new legal arrangements regarding property. After the end of World War II, the establishment of the Council of Europe and of the organization which is now the European Union (EU) added a previously unknown European dimension to the institution of property. As Europe started to move towards economic and political integration to resolve the causes of conflict, there arose an opportunity to provide a minimum standard of protection to the right of property within the sphere of international human rights law. While this was controversial due to the central role played by property in domestic political, social and economic discourse, the protection of the right of property eventually found its place in the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in 1950. This was a first step in the collective enforcement of some of the rights stated in the Universal Declaration of Human Rights. Subsequently, human rights in Europe have evolved into an effective body of law. As has been emphasized elsewhere, the European Court of Human Rights (ECtHR) ‘from its unique position as a collective supranational voice of reason and morality’1 eventually overcame the reluctance of European countries to submit to international supervision the protection of a right so closely connected with their social and economic policies. As a result, there is now substantial jurisprudence of the ECtHR on a rich variety of property issues.2 In the beginnings of European integration, property was left out of the competences assigned to the European Economic Community (EEC). Art. 222 of the EEC Treaty signed in 1957 provided that the Member States’ rules governing property ownership were left intact. Although this exclusion is reaffirmed in Art. 345 of the Treaty on the Functioning of the European Union (TFEU), the relationship between property law at the European level and in the Member States is no longer as black and white as it once was. The combined pressure of the increasing pace of economic integration within the common market and the recognition by first the EEC, and then the EU, of property as a fundamental right has subtly modified the reach and the meaning of Art. 345. In addition, the Charter of Fundamental Rights of 1

E. Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998-99) 31 New York University Journal of International Law and Politics 843-54 at 852.

2

According to its statistics, in the years between 1959 and 2009, the Strasbourg Court delivered 2215 judgments sanctioning a violation of the right of property as protected by Article 1 of Protocol No. 1 to the Convention. See .

3

the protection of property rights in comparative perspective

the EU now explicitly recognizes property as a fundamental right in its Art. 17, entitled: ‘right to property’. The European Court of Justice (ECJ) paved the way for this recognition of property as a fundamental right when it incorporated the principle enshrined in the first Article of the First Protocol to the European Convention on Human Rights in its jurisprudence.3 These significant developments must be placed in the broader context of the national laws of the Member States of the EU and the Council of Europe. The protection provided by the European Convention on Human Rights (ECHR) and now by the Charter of Fundamental Rights of the EU would not make sense if the laws of the Member States or the States adhering to the ECHR were suddenly to disappear. Indeed, over the last sixty years the protection of the right of property as a fundamental right has developed at the interface between national constitutional laws and European human rights law. This is why a study of the constitutional role of property across different legal orders, as achieved in this book, is much needed. The national legal systems under consideration are those of Italy and France. It is hoped that this comparative study may inspire further studies of other European countries, the laws of which will inevitably show different patterns of evolution. Italy and France are both representatives of the civil law tradition but they have different constitutional laws and, in particular, different systems of judicial review of legislation. Thus, despite the fact that their respective systems of property ownership have common historical foundations, the constitutional basis for the protection of the right of property is found in texts as different as the French Declaration of Human and Civic Rights of 1789 and the socially-oriented Italian Constitution of 1947. Moreover, as mentioned above, these two countries have different systems of constitutional justice. Under the Constitution of 1947, Italy has a procedure of indirect constitutional complaints raised by litigants during judicial proceedings or by the courts on their own motion. The possible references for the constitutional review of legislation are the Constitution as a whole and, since the constitutional reforms of 2001, EU and international law. Since the beginning of its activity, the Constitutional Court, which was established only in 1956 due to political difficulties in the selection of its judges, has performed an important role for the safeguarding of the fundamental rights set out in the Constitution by nullifying unconstitutional legislation. The French Constitutional Council, on the contrary, originally was not a court at all but rather an institution created to secure the dominance of the Executive over the Parliament. In the original text of the Constitution of 1958, the Constitutional Council could only conduct an abstract review of laws and treaties prior to their entry into force on the initiative of the President of the Republic, the Prime Minister, the President of the National Assembly, the President of 3

For a critical history of how fundamental rights became part of European Union law see in general: S. Smismans, ‘The European Union’s Fundamental Rights Myth’ (2010) 48(1) Journal of Common Market Studies 45-66.

4

introduction

the Senate and sixty Members of the National Assembly or sixty Senators. 4 Only recently, in 2008, did France introduce the possibility for the Court of Cassation and the Council of State to refer a question of the constitutionality of legislation in force to the Constitutional Council when, during a judicial proceeding, ‘it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution’.5 Legislation that is declared unconstitutional by the Constitutional Council is abrogated and the Council determines how the impact of the unconstitutional legislation is affected.6 As this book will show, fundamental rights law as developed at the European level is affected by the national systems of constitutional protection of property rights, which in turn must conform to European law.



1 Fundamental Rights Protection in Europe: A Matter for Tension and Judicial Collaboration

While the judicial protection of fundamental rights has been an essential element of modern constitutional law, it has also been a matter of confrontation and some tension between the Member States, their courts and the European courts enforcing fundamental rights and ensuring the application of European law. The emergence of a multilevel system for the protection of fundamental rights gave rise to problems of coordination between the different levels of protection. At the beginning of the EEC, the relationship between the national and the supranational legal orders was not settled. The doctrines necessary to ensure the integration of these concurrent legal orders were the product of judicial and doctrinal creativity.7 Under the ECHR, the tension between the European and national interpretations of fundamental rights8 is mitigated by various specific provisions, as well by the well-known general doctrine of the margin of appreciation. This doctrine has been developed by the ECtHR to respond to the need to consider local views 4 5

Art. 61 Cost.

Art. 61-1 Cost.

6 7

Art. 62 Cost.

On the role played by courts in protecting the cohesion of each legal order while regulating their relationships, see in general S. Cassese, I tribunali di Babele: i giudici alla ricerca di un nuovo ordine globale, (Roma: Donzelli, 2009) and, with respect to the European scene, H.-W. Micklitz, B. De Witte (eds.), The European Court of Justice and the Autonomy of the Member States (Cambridge, Antwerp, Portland: Intersentia, 2012).

8

That tension is highlighted by J.H.H. Weiler, ‘Diritti umani, costituzionalismo e integrazione: iconografia e feticismo’ (2002) Quaderni costituzionali 521-36, at 534-35, for whom human rights are almost always the expression of a compromise between competing social goods within the relevant political community.

5

the protection of property rights in comparative perspective

and to allow, where necessary, for different solutions in the various contracting States. It is in substance a tool for the allocation of competences between the contracting States and the ECtHR, which has the last word on how the States may assert their jurisdiction to interfere with rights protected by the Convention and its Protocols. In other words, national authorities enjoy a certain discretion to make an initial assessment of the necessity for interfering with Convention rights. As consistently held by the ECtHR, they are in principle better placed than an international court to evaluate local needs and conditions due to their direct and continuous contact with the vital forces of their countries. The relationship between the Member States and the EU is more complex. The purely economic nature of the competences conferred to the EEC by the Treaty of Rome in 1957 was initially interpreted as a guarantee that the new organization would not interfere in matters involving the protection of the fundamental rights of individuals.9 Criticism levelled against the EC’s democratic deficit10 pushed the ECJ to protect fundamental rights by adopting the constitutional traditions common to the Member States as a standard for the interpretation and the application of Community law.11 Reference to the domestic constitutional laws of the Member States to provide the grounds for protection of fundamental rights at the EC level seemed appropriate to prevent tensions between national constitutional laws and Community law. Despite this, the protection of fundamental rights under the Treaty turned out to be one of the reasons for clashes between the ECJ and national constitutional courts. This led to troubling questions about the role played by the constitutional traditions common to Member States in the construction of European law. Considering the reference to the common constitutional traditions as a standard of judicial review in light of the original EC Treaty, there can be little doubt that it was an act of ‘brave judicial activism’12 that enabled the ECJ to appear sensitive towards the needs of protecting human rights without undermining the principle of supremacy of Community law over national laws. Nevertheless, in developing guidelines to extrapolate the principles that form the common European constitutional tradition, the ECJ does not carry out exhaustive 9

See, e.g., judgment No. 183 of the Italian Constitutional Court on 27 December 1973. The Court notes that the legislative power of the organs of the EEC was limited to matters concerning economic relations. From this, the Court infers that, even in abstract terms, EEC law could hardly have affected political or ethical and social relations.

10

J.H.H. Weiler, ‘Eurocracy and Distrust: Some Questions concerning the role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities’ (1986) 61 Washington Law Review 1103-42 at 1117.

11

Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, [1970] ECR 1125, and, with specific regard to property, Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, para. 17, stating that: ‘The right to property is guaranteed in the Community legal order in accordance with the ideas common to the constitutions of the Member States, which are also reflected in the First Protocol to the European Convention for the Protection of Human Rights’.

12

M. Cartabia, Principi inviolabili e integrazione europea (Milano: Giuffrè, 1995), p. 26.

6

introduction

comparative studies of national laws. This is usually explained on the grounds that the ECJ is interested in evaluating not so much the degree of commonality of a certain principle, but rather its degree of conformity to the EU legal order. In other words, the ECJ operates a ‘selective integration’ of the principles derived from the national laws of the Member States into the Union system.13 It follows that, before becoming general principles of EU law, principles as well as fundamental rights derived from the common constitutional traditions of the Member States are reinterpreted by the ECJ and adapted to the structure and scope of the Union. The function of the reference to the common constitutional traditions of the Member States therefore highlights those common values, which serve as links between the EU legal order and Member States. Needless to say, interpreters – judges in the first place – and the contexts in which they work play an important role in the concrete determination of those values. It is thus unavoidable that fundamental rights can lead to disputes between the ECJ and the national courts. These settle conflicting interests on the basis of the core values of a given society. Another reason that makes the protection of fundamental rights an area of conflict among the courts is that, within the EU, which is an organization provided with considerable powers,14 the constitutional courts’ claim over their jurisdiction in matters of fundamental rights conceals claims for sovereignty which may otherwise seem motivated by nationalistic pressures and concerns of power.15 It appears that these tensions are inherent in the multilevel nature of the system of protection of fundamental rights. To overcome these tensions, courts and scholars have, with varying degrees of willingness, resorted to comparative law to interpret and reconcile fundamental rights. The ECJ and ECtHR as well as national courts are therefore, to an ever increasing degree, involved in transnational dialogues with one another, especially in the area of human rights and these dialogues involve an interesting use of comparative law, as will be seen in Chapter 1, which deals with the rise and development of human rights law in Europe from the 1950s to 2000s. In particular, the subsidiary nature of the mechanism for the protection of fundamental rights set up by the ECHR often leads the ECtHR to advance interpretative doctrines based on a comparative law approach. However, as argued by Paul Mahoney, the comparative method plays only a secondary role in defining the scope of Convention rights. That method is not suitable on its own for consistently applying the lowest common denominator in State practice, or for imposing on all Contracting States the optimal human rights solution adopted in the most progressive countries.16 13

Cartabia, Principi inviolabili, cit., p. 33.

14

It is worth noting that the EU, contrary to the ECHR’s system, is a form of organization of power, if not a form of government.

15

S. Bartole, ‘Costituzione e costituzionalismo nella prospettiva sovranazionale’ (2009) Quaderni costituzionali 569-90 at 579.

16

P. Mahoney, ‘The Comparative Method in Judgments of the European Court of Human Rights: Reference Back to National Law’, in Le rôle du droit comparé dans l’avènement du droit européen: Lausanne, 14-15 avril 2000 / The Role of Comparative Law in the Emergence of European Law (Zurich: Schulthess, 2002), especially at pp. 153-54.

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the protection of property rights in comparative perspective

National judges react differently to the new sources of law in the field of fundamental rights protection. The vertical relationship between ECHR and EU laws, on the one hand, and the Italian and French national courts (both constitutional and ordinary), on the other, is analyzed in Chapter 3. Despite the different attitude of Italian and French judges towards EU law, the emergence of some constitutional barriers against the full penetration of EU law is common to both countries. In particular, the counter-limits doctrine (dottrina dei controlimiti), which was conceived by the German Bundesverfassungsgericht in the Solange I case and by the Italian Constitutional Court in case no. 183/73, was accepted by the French Constitutional Council in 2004.17 The use of comparative law arguments in the dialogue between the courts is testimony to the level of integration that the law has reached in the European context. However, this process of integration, as will be seen, has not resolved all differences. In this sense, the comparative approach to the study of property law taken in this book is necessary to appreciate how property remains an intensely local institution despite the protection provided by forms of higher law.



2 A Comparative Approach to Property as a Fundamental Right

In the history of legal thought, property has been both praised as the foundation of personal freedom and challenged as contrary to the very idea of freedom.18 Considering the various conflicting ideas and practices about property that have developed over the years, the inclusion of the right of property within the category of fundamental rights has been – and remains – a source of controversy. The controversial nature of property as a fundamental right (as far as international instruments are concerned) is evidenced by the fact that Art. 17 of the Universal Declaration of Human Rights is the only article with no counterpart in the International Covenants adopted by the UN General Assembly in 1966, which were intended to give binding effect to the Declaration. According to Wiliam A. Schabas, a careful review of the preparatory works of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights demonstrates that: ‘the right to property was left out because it simply was not important or fundamen17

See, BVerfGE 37, 271, of 29 May 1974; Italian Constitutional Court, 27 December 1973, judgment No. 183; French Constitutional Council, 10 June 2004, decision No. 2004-496 DC. The topic is considered more in depth in Chapter 3.

18

P. Grossi, La proprietà e le proprietà nell’officina dello storico (Napoli: Editoriale Scientifica, 2006), p. 14; the author stresses the fact that property is the faithful mirror of political projects as well as ideals and, therefore, of ideological options.

8

introduction

tal enough!’.19 The Council of Europe encountered similar difficulties when it decided to prepare the ECHR. The right of property was not included in the final text of the Convention but was relegated to the first article of its First Protocol, dedicated to the right of every natural or legal person to the peaceful enjoyment of his or her possessions. The dispute over property as a fundamental right involves, in particular, liberals and socialists. The former maintain that property and freedom are inseparable because property plays a fundamental role in the protection of individual autonomy. On the contrary, supporters of socialist legal thought believe that one of property’s characteristics is sociability, which can be used to better meet the needs of the community.20 Accordingly, socialist thinkers do not assign private property a pivotal role in the organization of social structure as do proponents of liberalism and, above all, they question the relationship between property and freedom. Modern European constitutions offer more or less protection to the right of property depending on their historical and political roots. On the other hand, some international treaties for the protection of fundamental rights act as bridges between the different ideologies, granting a minimum standard of protection to private property. Furthermore, differences in the way in which the right of property is understood in European countries are not only ideological but also theoretical, in the sense that the structure of property law is different across the European space. Indeed, if we consider private property, which is the main subject of this book, there are two main different conceptual models of property law emerging from the European past.21 The first is built on the historical and intellectual foundations provided by Roman law, as interpreted in continental Europe by the jurists who first learned their law on the pandects. This model develops a system of property law based on the idea of an exclusive relationship between the person and tangible things.22 An alternative model is provided by the common law tradition which relies instead on a structure of property law that does not require the existence of dominium in the strict Roman sense (i.e. property as the legal relation between persona and res corporalis). Common law systems are open to the idea that property relations are first and foremost relations among individuals concerning objects of property.23 This is 19

W.A. Schabas, ‘The Omission of the Right to Property in the International Covenants’ (1991) 4 Hague Yearbook of International Law 135-60 at 159.

20

For a general introduction to this theme, J. Waldron, ‘Property and Ownership’, in Stanford Encyclopedia of Philosophy, 2004 (available on line at: http://plato.stanford.edu/entries/property/).

21

For a fuller treatment see: J.-L. Halpérin, Histoire du droit des biens (Paris: Economica, 1998); see also G. Samuel, ‘The Many Dimension of Property’ in J. McLean (ed.), Property and the Constitution (Oxford: Hart, 1999), p. 40.

22

The political foundations of this notion have been investigated by vast literature. For an enlightening contribution dealing with Germany see: J.Q. Whitman, The Legacy of the Roman Law in the German Romantic Era (Princeton, N.J.: Princeton University Press, 1990), p. 151 ff.

23

But see J. Harris, Property and Justice (Oxford: Oxford University Press, 2006), p. 5.

9

the protection of property rights in comparative perspective

an idea still often linked to the historical background of modern law, 24 although it clearly does not need to be so. Legislative reforms enacted in the twentieth century have done much to concentrate powers of disposition and enjoyment in the hands of the property owner so that the feudal image of ownership so often associated with English law is in reality only a ghost of a distant past.25 To be sure, the two models outlined above are subject to significant variations. Thus, for instance, even though Art. 544 of the French Civil Code is sometimes considered as the provision which conveys one of the clearest modern expressions of the Roman law model, under contemporary French law in personam relations are also capable of being conceived to an extent as rights protected against third parties.26 Italian law and German law are much more reluctant to subscribe to the same point of view, at least if we consider the private law dimensions of these two legal systems, because they reject the idea that incorporeal things can be the object of property.27 Considering that the notion of property is still far from being univalent, the methodological approach to the study of property relationships in this book is comparative. This means that the book does not put forward an ideal model of property rights as fundamental rights: property relations are taken into consideration as they exist under the laws of the countries examined with respect to the same factual dimensions. Furthermore, the comparative law approach to the study of the property laws underpinning this book highlights the many components of any regime of property rights. Contemporary comparative law has unveiled the pluralistic dimensions of legal orders and this methodological insight is fully exploited by this book.28 Indeed, the book contributes to the study of property law in a comparative perspective by integrating the analysis of property law as a fundamental right as it emerges at the European level in the study of the two legal systems under consideration. Until recently, property law has been a neglected topic within comparative law studies. The number of such studies devoted to the subject is still relatively small, especially if compared to 24

See, e.g., S. van Erp, ‘Comparative Property Law’, in M. Reimann and R. Zimmermann (eds.), Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p. 1057.

25

B. Rudden, book review of J. Thorens, Les traits caractéristiques de la property law anglo- américaine, in (1987) 35 American Journal of Comparative Law, 428.

26 27

F. Zenati, T. Revet, Les biens, 3th ed. (Paris: Presse Universitaires de France, 2008), pp. 268-269.

This discrepancy reflects to an extent the different meanings of the word chose in Art. 544 of the French civil code and sache under German law, which is restricted to a corporeal asset under para 90 BGB . For a comparative law treatment see: A. Candian, ‘La notion de bien’, in K. Boele-Woelki and S. van Erp (eds.), General reports of the VIIth congress of the international academy of comparative law (Utrecht: Eleven, Brussels: Bruylant, 2007), pp. 121-36. Also see, J.M. Milo, ‘Property and real rights’, in J.M. Smits (ed.) Elgar Encyclopedia of Comparative Law (Cheltenham, UK and Northampton, MA: Edward Elgar Publishing, 2006), 587-602, at 591-92; A. Gambaro, ‘Property Rights in Comparative Perspective: Why Property is so Ancient and Durable’ (2011) 26 Tulane European & Civil Law Forum 205-39.

28

R. Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’, (1991) 39 American Journal of Comparative Law 343-401.

10

introduction

those dedicated to contract and tort law.29 Recent developments in the harmonization of certain aspects of property law and the constitutionalization of private law have led to a growing interest in comparative property law, but the literature on the subject it is still not very large.30 As the book describes, the new dynamics in the field of property rights protection are triggered by the ongoing process of Europeanization of law and the methodological focus is on reciprocal influences within the European framework. Assuming that European human rights law has not been created from nothing but is founded on national constitutional traditions to the point that it can be considered as ‘a kind of fusion of national constitutional principles safeguarding human rights in Europe’,31 this book uses historical knowledge and – where appropriate – resorts to comparisons based on a factual approach to map the evolution of the legal concept of property within the European landscape and to unearth any phenomena of legal borrowing or cross-fertilization of rules and principles. Therefore, the analysis of the historical evolution of some fundamental principles and values underpinning legal orders goes hand in hand with the study of the law in action through the analysis of the case law of both European and domestic courts. The book does not assume that the comparative method should guide the ECtHR or the ECJ in deciding questions relating to the application of Art. P1-1 of the Convention, or of Art. 17 of the Charter of Fundamental Rights of the EU. Although both Courts sometimes have relied on a comparative law assessment of the norm to be applied, this assumption does not hold as a theoretical starting point. Neither the ECHR nor the Lisbon Treaty are subordinate to the national legal orders, although they could not exist without them. Considering the fact that the process of Europeanization of law is based on the interaction between the different national and supranational legal actors,32 this book aims to cast light on two aspects of this dynamic: the influence of 29

See, e.g., U. Mattei, Basic Principles of Property Law: A Comparative Legal and Economic Introduction (Westport, Conn.: Greenwood Press, 2000); S. van Erp, ‘Comparative Property Law’, cit.; A. Gambaro, ‘Western Property Law’, in M. Bussani and F. Werro (eds.), European Private Law: A Handbook (Chapel Hill, N.C.: Carolina Academic Press 2009), 47-85; S. van Erp and B. Akkermans (eds.), Property Law. Ius Commune Casebooks for a Common Law of Europe (Oxford: Hart, 2012).

30

J.-P. Loof, H. Ploger, A. Van Der Steur (eds.), The Right to Property. The Influence of Article 1 Protocol No. 1 ECHR on Several Fields of Domestic Law (Maastricht: Shaker Publishing, 2000); S. Pavageau, Le droit de propriété dans les jurisprudences suprêmes françaises, européennes et internationales (Paris: Librairie Générale de Droit et de Jurisprudence, 2006); U. Drobnig, H.J. Snijders, E.-J. Zippro (eds.) Divergences of Property Law: an Obstacle to the Internal Market? (München: Sellier European Law Publishers, 2006); P. Sparkes, European Land Law (Oxford: Hart, 2007).

31

P. Mahoney, ‘The Comparative Method in Judgments of the European Court of Human Rights: Reference Back to National Law’, cit., p. 154.

32

M. De S.-O.-I’E. Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford and New York: Oxford University Press, 2009) points out that domestic legal actors routinely exert important pressures on European legal norms and institutions by developing and promoting particular interpretations of European law.

11

the protection of property rights in comparative perspective

European human rights law on the Italian and French constitutional traditions in the field of property rights protection and the contribution of the latter to the establishment of European principles on property as a fundamental right. Accordingly, the book proceeds as follows. Chapter 1 provides a general coverage of the development of European human rights law. Special attention is paid to the doctrine of interpretation adopted by the ECtHR which, since the early years of its existence as a specialized court, has taken a leading role in the establishment of European human rights principles. Furthermore, since developing a fundamental rights culture was not an immediate concern at the inception of the EEC, this Chapter offers a brief description of the evolution of the treatment of human rights in the EU to illustrate the ever growing importance of fundamental rights in building the European common area. The active role of the ECJ in promoting and protecting fundamental rights is considered along with the institutional developments leading to the binding fundamental rights catalogue that is now in force. Chapter 2 addresses the issue of property rights protection with the aim of providing a comprehensive account of Article 1 of Protocol No. 1 to the ECHR (hereafter, Article P1-1) and of EU law on the protection of the right of property. The Chapter begins with a critical analysis of the ECtHR’s approach to defining the scope of Article P1-1 and of the horizontal effect doctrine. Moving to an analysis of the structure of Article P1-1, Chapter 2 then presents the latest developments in relevant case law, pointing out the positive obligations that the ECtHR places on contracting States. Finally, it describes how Article P1-1 interacts with the other articles of the Convention. As regards the EU legal order, the Chapter describes the constitutional concept of property that provides the backdrop for the legislative and judicial actions of the EU. This covers the competence of the EU to deal with issues involving property rights in light of Art. 345 of the TFEU and focuses on the protection of the right of property from interference by European institutions. The Chapter thus examines the case law of both the ECJ and the Court of First Instance (CFI), which was renamed as the ‘General Court’ (EGC) in the Lisbon Treaty. The relevant articles of the EU Charter of Fundamental Rights are also considered. Chapter 3 covers the principles that govern the relations between the ECHR, EU law and national legal orders, with particular attention to the Italian and French legal systems. The level of integration of ECHR and EU laws into domestic law cannot be understood without taking into account the legal, judicial and academic framework. The latter is quite interesting because it allows an investigation of whether ECHR and EU laws are an integral part of the education of all jurists or whether they are still considered a law of experts. This is significant since the impact of European human rights law is not just a question of law but involves the ways in which legal cultures approach fundamental rights issues. Chapter 4 reviews the key features of the protection of the right of property under Italian and French law. It is shown that these two countries share to an extent a common legal foundation (Roman law) and later deviations of legal

12

introduction

culture affecting both judges and scholars. Since the way private law regulates property still exerts an influence on how constitutional property is understood, the Chapter follows a cross-disciplinary approach to the concept of property and the constitutional principles governing its protection to show how constitutional doctrines relate to the traditional understanding of property law under the civil codes. Chapter 5 concerns how property rights are enforced by national and European courts. The Chapter underlines the judicial importance of the values that permeate the spirit of the ECHR and form the basis of all democratic societies. The role of human dignity as a common basis of modern human rights law is explored, as well as solidarity as a kind of ratio fundamentalis of social duties and rights. More generally, Chapter 5 illustrates how the ECtHR has turned to these values to elaborate standards for judicial review of interferences with the rights and freedoms protected by the ECHR. Those standards are then compared to those adopted by domestic courts to apply constitutional provisions on property rights protection. Finally, the Chapter debates whether those standards are suitable to settle cases involving conflicts between the right of property and other fundamental rights. Chapter 6 deals with the extent to which judicial review by courts is valueoriented by looking specifically into which values are more relevant in property cases. The Chapter thus describes the scope and purpose of the right of property by assessing the weight given by the courts to values as material in settling property rights cases. The growing maturity of European human rights law and its ability to have a significant influence on the domestic legal systems in Europe is the subject of Chapter 7. This evolution is a remarkable achievement, given that property is one of the oldest legal institutions. The Chapter also considers whether the national courts are moving towards a common understanding of the right of property as fundamental right by examining the idea of property emerging from their decisions.

13

chapter 1

European Human Rights Law: the Context

chapter 1

european human rights law: the context

Introduction The adoption of the European Convention on Human Rights transformed abstract human rights ideals into an effective legal framework.1 From an historical perspective, it can be said that the primary role of the ECHR system was to set common standards of protection for fundamental rights to achieve a higher level of integration between European countries. However, the ECtHR soon maintained that the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms required a dynamic interpretation of its provisions. Accordingly, it adopted a far reaching interpretation of Convention rights and freedoms. This resulted in a substantial case law with erga omnes effects insofar as it concerns the elucidation and development of the rules instituted by the Convention.2 European Human Rights Law as academic subject is quite recent. For decades, the main authors writing on the ECHR were staff members (including professors of law) of the European Commission on Human Rights and of the ECtHR. According to the Committee of experts set up in 1960 to study the problems relating to the Convention, the Council of Europe itself had the task of disseminating a better knowledge and understanding of the ECHR system. This involved the establishment of a specialized Institute within the Council, which intended to maintain relative autonomy from legal academics working at the universities.3 Interest in ECHR law spread in academic circles along with the development of the ECtHR jurisprudence on issues concerning nearly all fields of law until, eventually, European human rights law began to be recognised as an autonomous academic subject, as it happened, in particular, in France. The fact that the staff members of the ECHR system were the prominent actors in promoting the study of both Convention and ECtHR case law in academic circles contributed to the use of the court language instead of academic language in academic commentaries, and to the divulgation of the court culture.

1

The full title of the Convention is ‘Convention for the Protection of Human Rights and Fundamental Freedoms’. It was signed on November 4, 1950 in Rome and entered into force on September 3, 1953.

2

See, e.g., the Resolution 1226 (2000) on the execution of judgments of the European Court of Human Rights. Relying on the principle of solidarity, the Parliamentary Assembly of the Council of Europe pointed out that the Contracting States ‘not only have to execute the judgments of the Court pronounced in cases to which they are party, but also have to take into consideration the possible implications which judgments pronounced in other cases may have for their own legal system and legal practice’,(available at ).

3

See (1962) 55 Yearbook of the European Court of Human Rights 48.

17

the protection of property rights in comparative perspective



1 Human Rights: From Ideology to Law

Since the end of World War II, human rights have dominated political rhetoric. Over the past sixty years, human rights have increasingly gained popularity and authority through the ratification of a large number of human rights instruments by a wide range of States. They have thus become a ‘kind of worldwide secular religion’ for our time. 4 Most of all, human rights have become a legal category.5 The Universal Declaration of Human Rights, by considering individuals as subjects of rights within the international legal order, brought about a great change in international law and also marked the starting point for the practical implementation of human rights.6 Under human rights treaty law, people are entitled to specific rights, and they often have the legal capacity to sue the State that infringed those rights. In a separate opinion dated 1975, Judge Gerald Fitzmaurice of the ECtHR wrote: ‘the various conventions and covenants on human rights, but more particularly the European Convention, have broken entirely new ground internationally, making heavy inroads on some of the most cherished preserves of governments in the sphere of their domestic jurisdiction or domaine réservé. Most especially, and most strikingly, is this the case as regards what is often known as the “right of individual petition”, whereby private persons or entities are enabled to (in effect) sue their own governments before an international commission or tribunal – something that, even as recently as thirty years ago, would have been regarded as internationally inconceivable’.7

4

E. Wiesel, ‘A Tribute to Human Rights’, in Y. Daniele, E. Stamatopoulou, and C. Dias (eds.), The Universal Declaration on Human Rights: Fifty Years and Beyond (Amytiville and New York: Baywood Publishing Company, 1999), p. 3. See also M.B. Dembour, Who Believes in Human Rights? Reflection on the European Convention (New York: Cambridge University Press, 2006).

5

D. Loschak, ‘Mutation des droits de l’homme et mutation du droit’ (1984) 13 Revue interdisciplinaire d’études juridiques 49-88; M. Delmas-Marty, ‘De la juste dénomination des droits de l’homme’ (1998) 35 Droit et Cultures 101-106; F. Tulkens, ‘Human rights, rhetoric or reality?’ (2001) 9 European Review 125-134 ; S. Hennette-Vauchez, ‘Constitutional v International ? When Unified Reformatory Rationales Mismatch the Plural Paths of Legitimacy of ECHR Law’, in J. Christoffersen and M.R. Madsen, The European Court of Human Rights between Law and Politics (Oxford: Oxford University Press, 2011), 144-163.

6

R. Cassin, ‘L’homme sujet de droit international et la protection des droits de l’homme dans la société universelle’, in La technique et les principes du droit public: études en l’honneur de Georges Scelle, 2 vols. (Paris: Pichon et Durand Auzias, 1950), vol. I, p. 82. Nevertheless, it must be recalled that the Declaration is not legally binding and the rights it proclaims are not actionable by individuals.

7

App. No. 4451/70, Golder v. The United Kingdom [1975] ECtHR. Separate Opinion of Judge Fitzmaurice at para. 38.

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The strengthening of a human rights legal culture in the European landscape thanks to the actions of the ECtHR has attracted the attention of both public and, more recently, private law scholars. Prominent authors in Europe and elsewhere have analysed the ECHR system, which is commonly considered to be the world’s most effective and advanced international system for the protection of fundamental rights and freedoms. Its distinctiveness is that it establishes objective obligations binding the High Contracting Parties and independent organs with supranational authority to monitor and enforce compliance with the proclaimed rights. As the ECtHR stated from the very beginning of its activity: ‘unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”’.8



2 The European Convention on Human Rights: Its Origin and Evolution

The ECHR, drafted within the framework of the Council of Europe,9 reflects the concerns of the post-World War II era. At that time, the issue of international protection of human rights became of primary importance for obvious reasons. As the preamble of the Convention recites, it was necessary to introduce a collective guarantee for certain rights proclaimed in the Universal Declaration of Human Rights. The right of property was among the ten rights extracted from the Declaration10 that initially were considered as starting point to draw up the draft Convention.11 However, the Consultative Assembly referred the decision on the incorporation of the right of property in the text of the Convention back to the Committee on Legal and Administrative Questions for further investigation. The drafters thus concentrated on those rights that were considered to be essential elements of European democracies and that could be formulated in such as way so as to easily lead to consensus. This is why the Consultative Assembly 8

App. No. 5310/71, Ireland v. The United Kingdom [1978] ECtHR, para. 239; App. No. 39806/05, Paladi v. Moldova [2009] ECtHR [G.C.], para. 84.

9

The Council of Europe was established by the Treaty of London, which was signed on May 5, 1949 by Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom.

10

Article 17 of the Universal Declaration of Human Rights of 1948 states that ‘Everyone has the right to own property alone as well as in association with others’ and that ‘No one shall be arbitrarily deprived of his property’.

11

See the so-called Teitgen-report, which is reproduced in Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, 8 vols. (The Hague: Martinus Nijhoff, 1975), vol. I, pp. 192-212.

19

the protection of property rights in comparative perspective

focused at first on core civil and political rights that protect, for instance, physical integrity, procedural fairness, and individual freedoms of belief, speech, and association. The right of property was therefore left out of the final text of the Convention. This omission was rectified shortly afterwards with the adoption of the First Protocol to the Convention. As is well known, the ECHR put in place a judicial system to secure its enforcement. The original scheme reflected the double nature of the Convention, which was both a political and legal document. Three institutions were entrusted with the responsibility of controlling the respect of the Convention obligations by the Contracting States: the European Commission of Human Rights (hereafter ECommHR, set up in 1954), the European Court of Human Rights (set up in 1959, and whose jurisdiction was originally not compulsory) and the Committee of Ministers (the political body of the Council of Europe, which had subsidiary jurisdiction). National political and diplomatic interests also played an important role in the dynamics of the early ECHR system because, as pointed out by Mikael Rask Madsen, the first judges and commissioners were lawyers trained in the diplomatic services.12 Moreover, the international political scene was dominated by two phenomena closely connected with human rights issues and concerns, namely the Cold War and decolonization. Consequently, ‘the question of human rights in the 1950s was more a question of politics than law’.13 Protocol No. 11 of the ECHR, effective on November 1, 1998, completed the full jurisdictionalisation of the enforcement machine, through the replacement of the three decisional organs by a single full-time Court with a limited appellate jurisdiction.14 Moreover, that Protocol made recognition of the right of individual petition and the jurisdiction of the Court compulsory for the Contracting States. Even before Protocol No. 11 took effect, concerns linked to the impact of the accession to the Convention of Eastern and Central European countries following the collapse of the Soviet Union originated a debate – that is still going on today15 – over further reform of the ECHR control system. 12

M.R. Madsen, ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’ (2007) 32(1) Law & Social Inquiry 148-149.

13

M.R. Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’, in J. Christoffersen and M.R. Madsen, The European Court of Human Rights between Law and Politics, cit., p. 48.

14 15

See Article 43 of the Convention.

In the literature see, e.g., M.B. Dembour, ‘“Finishing Off” Cases: the Radical Solution to the Problem of the Expanding ECtHR Caseload’ (2002) 5 Human Rights Law Review 604-623; Council of Europe, Future Developments of the European Court of Human Rights in the Light of the Wise Persons’ Report. Colloquy organised by the San Marino Chairmanship of the Committee of Ministers of the Council of Europe (Strasbourg: Council of Europe Publishing, 2007); A. Mowbray, ‘Faltering Steps on the Path to Reform of the Strasbourg Enforcement System’ (2007) 7(3) Human Rights Law Review 609-618; L. Caflisch, ‘The

20

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In May 2004, Protocol No. 14 was open for signature by the Contracting States. The changes it provided related more to the functioning of the system rather than to its structure.16 In particular, it established straightforward procedures for deciding applications that were manifestly inadmissible or repetitive. Moreover, the Protocol introduced a new admissibility criterion for all those cases in which the applicant had not suffered a significant disadvantage.17 Resistance of the Russian government to the ratification of the Protocol18 delayed its entry into force for six years: eventually, on June 1, 2010.19 In the autumn of 2012, the Committee of experts on the Reform of the Court submitted to the Steering Committee for Human Rights the drafts of future Protocols 15 and 16 to the Convention. These would, i.a., introduce an explicit reference to the principle of subsidiarity, and the doctrine of the margin of appreciation in the Preamble of the Convention. Under the new regime the ECtHR would be able to give advisory opinions as well. reform of the European Court of Human Rights: Protocol No. 14 and beyond’ (2006) 6(2) Human Rights Law Review 403-415. 16

The Explanatory Report of the Council of Europe, available at provides an excellent commentary to it; see also, P. Lemmens and W. Vandenhole (eds.), Protocol No. 14 and the Reform of the European Court of Human Rights (Antwerpe and Oxford: Intersentia, 2005); S. Besson (ed.), La Cour européenne des droits de l’homme après le Protocole 14 / The European Court of Human Rights after Protocol 14. Premier bilan et perspectives / Preliminary Assessment and Perspectives (Zurich: Schulthess, 2011).

17

On the interpretation of this criterion, see S. Baier, ‘“No Significant Disadvantage” – First Case-Law on the New Admissibility Criterion Introduced by Protocol No. 14 to the European Convention on Human Rights’ (2011) European Yearbook on Human Rights 405-411.

18

The Protocol was to become effective with the ratification of all the Contracting States. In December 2006, Russia became the only State to refuse to ratify the Protocol. The Russian Duma Legislation Committee were related to the fear of increasing judicial discretion. See ‘On the Matter of Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms’ (2007) Human Rights. Case-Law of the European Court of Human Rights, available at ; J.W. Reiss, ‘Protocol No. 14 ECHR and Russian Non-Ratification: The Current State of Affairs’ (2009) 22 Harvard Human Rights Journal 293-317; B. Bowring, ‘The Russian Federation, Protocol no. 14 (and 14bis), and the battle for the soul of the ECHR’ (2010) 2(2) Goettingen Journal of International Law 589-618.

19

 Medio tempore, the Committee of Ministers of the Council of Europe drafted the so-called Protocol 14-Bis, which aimed to give immediate effect to two crucial elements of Protocol 14, namely the singlejudge formation of the ECtHR that had jurisdiction to declare as inadmissible cases that are manifestly ill-founded and the possibility for a committee of three judges to adopt judgments on issues that are already the subject of the well-established case law of the Court. The Protocol was ratified by twelve States and took effect on May 1, 2009. It ceased to be in force from the date in which Protocol No.14 became effective. On Protocol No. 14 bis, see C. Burbano Herrera, ‘‘SOS European Court of Human Rights’: Protocol No. 14 bis Urgently Reforms the Institutional Framework While Awaiting the Entry into Force of Protocol No. 14’ (2010) 3(1-2) Inter-American and European Human Rights Journal 115-130.

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the protection of property rights in comparative perspective



2.1 The European Court of Human Rights as a Laboratory of Legal Doctrines

The ECtHR is staffed with one judge for every State in the Convention. The process of appointing judges to the Court involves both national governments and the Parliamentary Assembly of the Council of Europe20 and reflects the concern of assuring a reasonable balance of different legal professions and recognizing the equality of the sexes.21 A recent study described the ECtHR as a melting pot of legal practitioners with different vocational and educational backgrounds who share a common interest in human rights and have succeeded in creating a single legal culture based on modern ideas of the freedoms and rights of individuals versus the power of the State.22 Along with the overwhelming predisposition of the ECHR system toward a legal as opposed to a political approach, the judges adopted – though not always unanimously – a more progressive interpretation of the Convention. They thus developed new dynamic doctrines to shape and protect in concreto the rights and freedoms proclaimed therein. As pointed out by judge Françoise Tulkens, the ‘concern for effectiveness is the main driving force behind the interpretative methods developed by the Court’.23 This quest for effectiveness implies that the Convention should be ‘interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory’,24 taking into account changing circumstances. The ECtHR adopts an evolutive approach to the interpretation of the ECHR, based mainly on the doctrines of autonomous meaning, living instrument and positive obligation, which are illustrated below. In Golder v. The United Kingdom, the Court laid down the foundations of its future interpretative techniques by relying on the Vienna Convention on the Law of Treaties, even though this text was not in force at the time of the decision.25 To decide the case, the ECtHR had to consider whether, despite the lack of an explicit provision, the Convention protects the right of access to court. The United Kingdom maintained that the Convention grants no right of access 20 21

See Article 22 of the Convention.

A. Mowbray, ‘The Consideration of Gender in the Process of Appointing Judges to the European Court of Human Rights’ (2008) 8(3) Human Rights Law Review 549-559; Parliamentary Assembly, Resolution 1646 (2009), available at: .

22

N.-L. Arold, The Legal Culture of the European Court of Human Rights (Leiden and Boston: Martinus Nijhoff Publishers, 2007). The author presents the results of a social-legal analysis of the ECtHR carried out between 1998 and 2001.

23

F. Tulkens, in European Court of Human Rights (ed.), What are the limits to the evolutive interpretation of the Convention? (Strasbourg: Council of Europe, 2011), p. 7.

24 25

App. No. 10249/03, Scoppola v. Italy (No. 2) [2009] ECtHR [G.C.] para. 104.

The Vienna Convention was adopted on May 22, 1969 by the United Nation Conference on the Law of Treaties and entered into force on January 27, 1980.

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to the courts. Its main argument was that an interpretation of Article 6 (Right to a Fair Trial) on the basis of the natural and ordinary meaning of its words excluded such a right of access. The English government also argued that when the Convention affords a right of judicial recourse this is specifically and clearly expressed.26 The ECtHR considered instead that the interpretation of the ECHR should be guided by Articles 31-33 of the Vienna Convention on the Law of Treaties, that reflect general principles of international law. It first argued that the wording of Article 6 is neutral on the question of access to the courts. The Court held that the expressions employed by the drafters do not ‘necessarily refer only to proceedings already pending’; they may well imply ‘the right to have the determination of disputes relating to civil rights and obligations made by a court or tribunal’.27 Then, following the guidelines provided by Article 31(2) of the Vienna Convention, the ECtHR elaborated the object and purpose of the ECHR in the light of its Preamble. In particular, the Court pointed out that the principle of the rule of law is ‘one of the features of the common spiritual heritage of the member States of the Council of Europe’. This means that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts’.28 Furthermore, considering that Article 31(3) of the Vienna Convention mentions the ‘relevant rules of international law’ among the sources of inspiration for the interpretation of international law treaties, the ECtHR affirmed that the right to access to the courts is ‘one of the universally “recognised” fundamental principles of law’.29 Thus, Article 6 of the ECHR ‘must be read in the light of these principles’.30 The ECtHR emphasized that to include the right of access to the courts into Art. 6(1) would not lay new obligations upon Contracting States since it is ‘an element which is inherent in the right stated by Article 6 para. 1’.31 The reasoning of the ECtHR contains two important principles that delineate its jurisprudence. First, a right not expressly mentioned by the ECHR may be granted despite the lack of an explicit provision. Second, the very terms of the Convention provisions may require the Court to recognise a right not expressly mentioned that, because of its inherent nature to the object and purpose of the ECHR, would not amount to a new obligation for Contracting States. The common feature of the interpretative methods subsequently adopted by the ECtHR is the rejection of the idea that Convention rights must be interpreted according to the Contracting States’ original intention in the 1950s. 26 27

28

 Ibidem, para. 34.

29 30 31

Report of the Commission, June 1, 1973, para. 14 f.

 Golder, supra footnote 7, para. 32.  Ibidem, para. 35.

 Ibidem.

 Ibidem, para. 36. For the objections raised by the English Government considering the imposition of new obligations by the process of legislation through interpretation, see the Report of the Commission para. 15-16.

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the protection of property rights in comparative perspective

Considering that the States that took part in the drafting of the ECHR represent a very small minority in the current structure of the Council of Europe, the rejection of the originalist approach is an understandable choice. It would be unfair to impose the original interpretative intention of ten States upon the thirty-seven countries that later adhered to the Convention.32 The ECtHR has consistently defended its interpretative approach against criticism, arguing that a failure ‘to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement’.33 However, the introduction in the 1970s of activist devices such as the effectiveness principle, the autonomous meaning, and living instrument doctrines, was criticized by some judges, who feared that such innovations could create legal uncertainty and open the way to judicial activism. Sir Gerald Fitzmaurice, a judge of British nationality elected to the ECtHR in 1974 was one of the strongest opponents of the progressive attitude prevailing in the ECtHR, and he often pleaded for interpretational restraint in his separate opinions.34 An example of his approach is the long dissenting opinion attached to the Golder judgment, in which he called for a cautious and conservative interpretation of the Convention’s provisions. In it, he gave voice to the opinion that the ECHR, like international treaty law in general, has its foundations in the agreement between the Contracting States. Therefore, according to his view, the Convention could not be interpreted as having the effect of imposing upon the States obligations to which they had not agreed or could not properly be assumed to have agreed.



2.1.1 Updating the ECHR Rights in the Light of Present-Day Conditions: The Autonomous Meaning and the Living Instrument Doctrines

The open texture of many of the substantive provisions of the Convention requires judges to define the concepts and notions used to frame them. Over the years, the ECtHR has developed jurisprudential principles to provide guidance in the interpretation and application of rights in a manner that is practical and effective. 32

Originalist theories have been at the heart of the debate on the interpretation of the American Constitution. There are two main originalist doctrines: textualism and intentionalism. The first focuses on the meaning of a legal provision at the time of its adoption. The second puts more emphasis on preparatory works and argues that a legal provision must apply to the cases the drafters had originally intended to regulate. In general on this topic see G. Huscroft and B.W. Miller (eds.), The challenge of originalism: theories of constitutional interpretation (Cambridge and New York: Cambridge University Press, 2011).

33

App. No. 46295/99, Stafford v. The United Kingdom [2002] ECtHR [G.C.] para. 68; App. No. 23459/03 Bayatyan v. Armenia [2011] ECtHR [G.C.] para. 98.

34

See J.C. Merrills, ‘Sir Gerald Fitzmaurice’s Contribution to the Jurisprudence of the European Court of Human Rights’ (1982) 53 The British Yearbook of International Law 115-127.

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The autonomous meaning approach is one of the techniques used by the ECtHR for implementing the principle of effectiveness in the interpretation of the Convention. It was developed by the ECtHR in relation to the case law concerning the interpretation of Article 6 of the ECHR. The Court justified this method by insisting on the need to secure uniformity of treatment throughout the Contracting States as was required by the Preamble to the Convention, which refers to ‘a common understanding and observance of the human rights’ protected under the Convention itself.35 The cornerstone of the doctrine under discussion was established in the Engel case.36 The case originated in an application lodged by four soldiers serving in the Dutch armed forces who complained, among other things, about a violation of Article 6 by domestic military courts. The respondent State argued that the national proceedings against the applicants concerned military penalties, which, due their disciplinary nature, did not amount to civil rights and obligation or a criminal charge.37 Thus, according to the Dutch Government, Article 6 was not applicable to the facts. The Strasbourg Court acknowledged that, in the legal practice of the Contracting States, ‘disciplinary proceedings’ and ‘criminal proceedings’ were two different concepts. Nonetheless, it went on to question the significance and the consequences of such classification for the purposes of Article 6. The Court held, therefore, that to leave to the States full discretion about the classification of acts or omissions as disciplinary or criminal offences would have meant to subordinate the application of Articles 6 and 7 (No Punishment Without Law) of the ECHR to their sovereign will. Thus, the Court took upon itself the task of establishing whether a given ‘charge’ vested by the State with a disciplinary character should count as ‘criminal’ within the meaning of Article 6. The use of such an interpretative principle has sometimes been criticized by judges in separate opinions. The strongest criticism came from an Austrian judge, Franz Matscher. According to him, it would be appropriate to have recourse to the autonomous interpretation only when, and to the extent that, the comparative analysis of the domestic laws of the Contracting States discloses the existence of a common denominator. In this way, the risk of creating concepts that are ‘totally at variance with the legal systems of the State concerned’ could be avoided.38 Even so, the substantial case law of the ECtHR shows that when the Court decides to elaborate on an autonomous concept, it does not necessar35

App. No. 8225/78, Ashingdane v. The United Kingdom [1985] ECtHR; Concurring Opinion of Judge Lagergren.

36 37

App. No. 5100/71, 5101/71, 5102/71, 5354/72, 5370/7, Engel and others v. The Netherlands [1976] ECtHR.

Article 6 of the ECHR confers a right to a fair hearing in the ‘determination of civil rights and obligations’ as well as in the prosecution of a ‘criminal charge’.

38

App. No. 6232/73, König v. Germany [1978] ECtHR; Separate Opinion of Judge Matscher. See also Matscher’s dissenting opinion in the Özturk case, where he emphasized that ‘autonomous interpretation would call for comparative studies of a far more detailed nature than those carried out so far by the Convention institutions’ (App. No. 8544/79, Özturk v. Germany [1984] ECtHR.).

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ily rely on common rules and general trends in the national laws of the States party to the Convention.39 Concepts are therefore given an evolutive or dynamic interpretation. This approach has led the ECtHR to widen the substantive content and scope of the protected rights and freedoms. On this basis the Court can depart from its previous case law to update its position in accord with new developments in societal habits and morals. It follows that the ECHR should be understood as a ‘living instrument’ that ‘must be interpreted in the light of present day conditions’. 40 The concept of living instrument expresses the paramount idea underpinning the dynamic interpretative approach developed by the ECtHR. This doctrine, which is now firmly rooted in ECtHR case law, was introduced by the Court in the Tyrer case. The applicant was a British citizen who had been sentenced by the juvenile court of the Isle of Man to three strokes of the birch for his assault of a senior pupil. The human rights issue was whether this corporal punishment was a degrading punishment contrary to Article 3 (Prohibition of Torture) of the ECHR. The Court considered that such punishment might be acceptable to the citizens of the Isle of Man, but interpreting the ECHR as a living instrument, its judgment had to be influenced by the standards commonly applicable in the Contracting States in regard to penal policy. Finally, considering the nature and character of the judicial punishment together with the circumstances of its infliction, the Court found a violation of Article 3. The judgment contains two important directions. First, present day conditions are an important element to consider in interpreting the Convention; second, common standards, which are to be found in national legislations or elsewhere, are indicative factors of present day conditions. Nevertheless, the reasoning of the Court on how the living instrument principle applied to the case at issue is cryptic. As matter of fact, the Court did not explain what was the commonly accepted standard regarding corporal punishment or exactly how this undisclosed common standard affected its final judgment. 41 Subsequent decisions reveal that the Court does not usually look for an empirical demonstration attesting that a given standard is accepted by the majority of the States, nor for legal documents that support it, even when it 39

Currently, the Court refers to autonomous concepts to define a great number of terms of the Convention. See G. Letsas, ‘The Truth in Autonomous Concept: How to interpret the ECHR’ (2004) 15(2) European Journal of International Law 279-306; W.J. Ganshof van Der Meerssch, ‘Le caractère “autonome” des termes et la “marge d’appréciation” des gouvernements dans l’interprétation de la Convention européenne des droits de l’Homme’, in Protection des droits de l’homme: la dimension européenne, Mélanges en l’honneur de G. Wiarda (Köln: Carl Heymans Verlag, 1998), pp. 201-220; E. Kastanas, Unité et Diversité: Notions autonomes et marge d’appréciation des Etats dans la jurisprudence de la Cour européenne des droits de l’homme (Brussels: Bruylant, 1996); F. Sudre, ‘Les concepts autonomes de la Convention européenne des Droits de l`Homme’ (1997) 6 Cahiers de l`IDEDH.

40 41

App. No. 5856/72, Tyrer v. The United Kingdom [1978] ECtHR, para. 31.

In his dissenting opinion, Judge Fitzgerald warned the Court not to use Article 3 ‘as a vehicle of indirect penal reform’ (ibidem, separate opinion, para. 14).

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makes use of the European consensus argument. 42 The Court looks rather for any sign attesting an evolution towards the values protected by the ECHR rights. In a recent judgment against Turkish courts, the Grand Chamber referred to its previous case law to clarify that, when an international convention on a specific matter exists, it is unimportant whether the majority or only a small number of the States of the Council of Europe has ratified it, and it is irrelevant that the international instrument considered may have no binding legal effect. The Grand Chamber stated that ‘[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies’. 43

The facts of this case concerned a complaint, under Articles 11 (Freedom of Assembly and Association) and 14 (Prohibition of Discrimination), that Turkish courts had denied the applicants the right to form a trade union and to enter into collective agreements. The ECtHR, breaking with its previous jurisprudence, extended the protection offered by Article 11 to the right to bargain collectively with the employer. Even though the decision was unanimous, the Italian judge, Vladimiro Zagrebelsky, criticized the shortage of new and recent facts considered by the Court as factors of a perceptible evolution in international or national law in this matter. Therefore, in his view, the ECtHR’s departure from its precedent was ‘a correction of its previous case-law rather than an adaptation of case-law to a real change’. 44 Finally, judge Zagrebelsky criticized the retrospective effect of the new interpretation of Article 11, since the Turkish Court of Cassation, when disposed of the case at domestic level, could not have foreseen the ECtHR’s revirement. His point was that the Court should have stated the time from which the right to collective bargaining became an essential element of the right 42

On the concept of European consensus, see K. Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 German Law Journal 1730-1745; D. Regan, ‘“European consensus”: a worthy endeavour for the European Court of Human Rights?’ (2011) 14(1) Trinity College Law Review 51-76.

43

App. No. 34503/97, Demir and Baykara v. Turkey [2008] ECtHR [G.C.] para. 85-86; emphasis added.

44

 Ibidem, Separate opinion of Judge Zagrebelsky, para. 2.

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to freedom of association in Article 11 and made provision for the period that preceded the departure from precedent. Implicitly, he was supporting the idea that the Court should follow the doctrine of prospective overruling to meet the requirements of foreseeability and legal certainty. While recognizing the important role played by precedents in developing a consistent body of law, I argue that the ECtHR makes use of the living instrument doctrine to foster the normative values underpinning the Convention, regardless of whether its interpretation of such values is widely shared across the Contracting States.



2.1.2 Securing an Effective and Practical Protection of ECHR Rights through Positive Obligations

One corollary of the effectiveness principle is that the application of the Convention should not be subordinate to States’ sovereign wills. In other words, the States’ obligation, ex Article 1 of the ECHR, to protect the rights guaranteed by the Convention is not abstract but concrete. This means that individuals must have effective and reasonable possibilities to enjoy the Convention’s rights and freedoms. Such an obligation could require the States to undertake specific preventive or protective actions to safeguard the rights of individuals. Going beyond the classical liberal understanding of fundamental rights as pure negative rights, which impose upon the States only a duty not to interfere (i.e., an obligation to respect), the Court uses the principle of effectiveness to impose a duty to act (i.e., an obligation to protect) on Contracting States. A general theory of positive obligations has never been articulated by the ECtHR. Nevertheless, on the basis of relevant case law, one can distinguish two main types of positive obligations sanctioned by the Court. These depend on the nature of the measure required, which may be (1) legal, if the State is expected to set up a national legal framework allowing individuals to enjoy Convention rights or (2) judicial, if the State has the duty to organize domestic procedures that afford sufficient remedies for breaches of individuals’ rights. 45 Since natural and legal persons can be not only the victims but also the perpetrators of a violation of the Convention rights, the positive obligations imposed upon a State may involve the adoption of measures that affect relationships between private parties. Thus, in such cases, a State can be held responsible for a violation committed by a private person because there has been a failure in the legal order amounting to an inadequate or omitted action by the State. 45

For a systematic examination of the scope of positive obligations under some of the articles of the ECHR, see K. Starmer, ‘Positive Obligations Under the Convention’, in J. Jowell and J. Cooper (eds.), Understanding Human Rights Principles (Oxford: Hart, 2001), pp. 139-159; A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart, 2004); J.-F. Akandji-Kombe, Positive Obligations under the European Convention on Human Rights – A Guide to the Implementation of the European Convention on Human Rights (Strasbourg: Council of Europe, 2007); M. Klatt, ‘Positive Obligations under the European Convention on Human Rights’ (2011) 71 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 691-718.

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2.1.3 Making Rights Effective in the Private Sphere: The Horizontal Effect of the ECHR

There is substantial literature on the extent and limits of the applicability of the ECHR in relationships between private parties. 46 In addition, the debate on the constitutionalization of private law that has been developed over the last decade adds a new dimension to these topics. This debate generally involves references to the German Drittwirkung theory, which allows an individual to bring a claim under German law against a private person relying on the national Constitution. 47 It is now widely accepted that the Convention enjoys an indirect horizontal effect, although the ECtHR has not yet fully conceptualised the extent to which the Contracting States have to secure respect for Convention rights in the private law sphere. According to the ECtHR jurisprudence, ‘the Court does not consider it desirable, let alone necessary, to elaborate a general theory concerning the extent to which the Convention guarantees should be extended to relations between private individuals inter se’. 48 Due to the limits to the ratione personae competence of the ECtHR stated in Article 34 (Individual Applications) of the Convention, 49 an applicant can complain of a violation of his fundamental rights and freedoms by another individual by summoning the State only. No complaint can be lodged directly 46

See A. Drzemczewski, ‘The European Convention on Human Rights and Relations between Private Parties’ (1979) 26 Netherlands International Law Review 163-181; E. Alkema, ‘The Third Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights’, in R.St.J. MacDonald, F. Matscher, and H. Petzold (ed.), The European System for the Protection of Human Rights (Dordrecht, Boston, and London: Martinus Nijhoff, 1993), pp. 33-45; A. Clapham, ‘The ‘Drittwirkung’ of the Convention’, in R.St.J. MacDonald, F. Matscher, and H. Petzold (eds.), The European System for the Protection of Human Rights, cit., pp. 163-206; E. Lambert, Les effets des arrêts de la Cour européenne des droits de l’homme (Contribution à une approche pluraliste du droit européen des droits de l’homme) (Brussels: Bruylant, 1999); D. Spielmann, L’effet potentiel de la Convention européenne des droits de l’homme entre personne privées (Brussels: Bruylant, 1995); D. Oliver and J. Fedtke (eds.), Human Rights and the Private Sphere. A Comparative Study (London and New York: Routledge-Cavendish, 2007), Ch. 14.

47

In German constitutional law, a distinction is made between unmittelbare Drittwirkung (direct effect) and mittelbare Drittwirkung (indirect effect). For an analysis of the main issues behind the distinction between the direct and indirect horizontal effect of fundamental rights, see K. Preedy, ‘Fundamental Rights and Private Acts – Horizontal Direct or Indirect Effect? – A Comment’ (2000) 8 European Review of Private Law 125-133, and more recently G. Brüggemeier, A. Colombi Ciacchi, G. Comandé (eds.), Fundamental Rights and Private Law in the European Union, 2 vols. (Cambridge: Cambridge University Press, 2010).

48

App. No. 24699/94, VgT Verein Gegen Tierfabriken v. Switzerland [2001] ECtHR, para. 46.

49

The ECtHR has published a handbook that clearly illustrates the admissibility criteria under the ECHR and that links to the relevant jurisprudence. The document is available at: .

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against an individual. As a matter of fact, according to the text of Article 34 ECHR and the ECtHR case law, an applicant must claim to be victim of a violation of Convention rights committed by State bodies. Nevertheless, the violation need not be committed by a State’s officer or authority. To establish the jurisdiction of the Court, the violation must be connected to the act of a body entitled with the State’s powers. Thus, the Court considers whether the accused legal entity did or did not enjoy sufficient institutional and operational independence from the State at the time of the contested facts by taking into account who owned and controlled the entity and the nature of the activity it carried out.50 Once the competence of the Court is established, the respondent State will be held liable whenever the violation has been possible due to the action or inaction of the legislator or the executive or judicial power. In other words, States are not liable for the acts of individuals per se. Accordingly, if the facts complained of exclusively concern relationships of a contractual nature between private individuals the State does not engage its liability,51 but the ECtHR can review agreements of a private law nature between State authorities and ordinary citizens. Thus, for instance, in the Larkos case,52 the ECtHR found that the applicant had been discriminated against with regard to his right to respect for his home. Being a tenant of the State’s property, he was not, unlike a private tenant renting from a private landlord, protected from eviction on expiry of his lease. Another example is the Fedorenko case, concerning a contract of sale by which the applicant sold his apartment to the Regional Department of Justice and agreed upon payment in US dollars. Such an agreement was declared invalid by a domestic court during the execution of the contract. The ECtHR found that the interference with the applicant’s property rights did not comply with the proportionality principle; thus, it concluded that there had been a violation of Article P1-1.53 The ECtHR explicitly acknowledged that it ‘is not in theory required to settle disputes of a purely private nature’; even so, ‘in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention’.54

50

Among others, see App. No. 35835/05, 43548/05, 43569/05, 36986/06, Crisanin and others v. Serbia [2009] ECtHR.

51

App. No. 15573/89, Gustafsson v. Sweden [1996] ECtHR; App. No. 29785/96 M.N. v. Bulgaria [1996] ECommHR (dec.); App. No. 35221/97, O.N. v. Bulgaria [2000] ECtHR (dec.).

52 53

App. No. 29515/95, Larkos v. Cyprus [1999] ECtHR.

App. No. 25921/02, Fedorenko v. Ukraine [2006] ECtHR.

54

App. No. 69498/01, Pla and Pucernau v. Andorra [2004] ECtHR, para. 59.

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The above dictum has been formulated by the Court in the Pla case, which concerned a will interpreted by the national courts as excluding an adopted son from his right to bequeathed property. The applicants complained of a violation of Article 8 (Right to Respect for Private and Family Life) and Article 14 due to discrimination on the grounds of filiation. The case was peculiar, and to be distinguished from previous decisions concerning differences of treatment for succession purposes, because the discrimination did not result from domestic legislation, but from a private instrument. Finding a violation of Article 14 taken in conjunction with Article 8, the Court held in substance that the national courts’ interpretation of the will was wrong. Nevertheless, challenging the domestic courts interpretation of the will as incompatible with the Convention, the ECtHR preserved the State exemption from strict liability, insofar as it did not consider the private act per se as the source of the violation. Even so, the Polish judge, Lech Garlicki, observed: ‘the real question before our Court [was] to what extent the Convention enjoys a “horizontal” effect, that is, an effect prohibiting private parties from taking action which interferes with the rights and liberties of other private parties. Consequently, to what extent is the State under an obligation either to prohibit or to refuse to give effect to such private action?’55

Commenting on the judgment, Olha Cherednychenko pointed out that ‘it should be noted that drawing a distinction between the two perspectives is of crucial importance because in the case of the horizontal effect of the Convention, the question is whether or not the testator or the testatrix is allowed to discriminate in his or her testamentary disposition and thus what the limits are to his or her private autonomy. By contrast, in the case of testing the compatibility of the national courts’ interpretation of a testamentary disposition this question simply does not arise because at stake is a purely state action, which appears to suggest that in this case private parties are allowed to discriminate in their testamentary dispositions and the private law courts are allowed to uphold such dispositions as long as the discrimination was the true intention of the testator’.56

In other words, the ECtHR imposes on national courts an obligation of consistent interpretation of all legal acts, thus clearly affirming the supremacy of ECHR law.

55

 Ibidem; Dissenting opinion of Judge Garlicki.

56

O. Cherednychenko, ‘Towards the Control of Private Acts by the European Court of Human Rights?’ (2006) 13 Maastricht Journal of European and Comparative Law 195-218 at 205.

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2.1.4 The Spectre of Judicial Activism

One of the main recurrent arguments raised by academic criticism of the ECtHR concerns the use of judicial creativity by the Strasbourg judges. Due to the vague wording of the Articles of the ECHR and the uncertain evolution of social and moral concepts, a creative approach in the interpretation of the Convention is to some extent unavoidable.57 Nevertheless, some scholars and judges look on the ECtHR’s judicial creativity with open mistrust. As mentioned above, the first criticism toward the activist interpretative devices developed by the ECtHR came from some of the judges of the ECtHR itself, making the point that courts are entrusted with the interpretation of the law and not with policy making.58 Some scholars also share the view that the ECtHR’s interpretative attitude can turn into inappropriate judicial activism.59 Actually, in some instances, the mark between interpreting and making law is fleeting. For instance, positive obligations may result in an obligation to advance a particular social or economic policy, or the development of an autonomous concept may trespass on legislative power. A survey conducted in October 2007 revealed that the vocational background of the Strasbourg judges might influence their interpretation of the ECHR. For instance, judges who have an academic background are inclined to be more activist than judges recruited from the civil service or judicial system, who are trained to exercise more restraint. However, in the final analysis, the factor that plays the biggest role in shaping the judicial choices of a judge is the mentality that he or she has developed over time.60 Judicial activism in the context of the ECHR poses problems if little or no deference is paid to the sovereignty of the Contracting States. In general terms, judicial activism can be defined as a judicial approach that leads judges to strike down and re-write laws enacted by national legislators to favour a certain policy. 57

H. Waldock, ‘The Effectiveness of the System set up by the European Convention on Human Rights’ (1980) 1 Human Rights Law Journal 1-12; D. Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights’ (2008-09) Creighton Law Review 361-396.

58

See, for instance, App. No. 46827/99 and 46951/99, Mamatkulov and Askarov v. Turkey [2005] ECtHR [G.C.], especially the partly dissenting opinions of Judges Caflisch, Türmen, and Kovler, para. 11-12. The judges stressed that ‘there is a wide difference between the mere interpretation of a treaty and its amendment, between the exercise of judicial functions and international law-making’, and they argued that in some cases the ECtHR had exercised a legislative function.

59

L.R. Helfer, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 26 Cornell International Law Journal 133-166 at 135. Helfer holds that ‘without a consistent definition of the conditions under which emerging human rights principles should be incorporated into the Convention, the tribunals risk judicial illegitimacy whenever they depart from an interpretation based on the intent of the Convention’s drafter’.

60

R.C.A. White and I. Boussiakou, ‘Separate opinions in the European Court of Human Rights’ (2009) 9 Human Rights Law Review 37-60 at 56-57.

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This approach, however, is not widely used by the judges of the ECtHR. Indeed, since it is not the function of the ECtHR to assess the validity of national legal rules themselves, the Court usually focuses its reasoning on the material elements of the cases, even when the real source of a violation of the Convention is the domestic law itself. Thus, as Garlicki observes, ‘the legislative origin of an individual violation has not, under the traditional approach, affected the manner in which the operative part of the judgements used to be drafted. It was only in the reasoning where the defects of national legislation were discussed and – sometimes – suggestions for future action were proposed. The supervision over the proper implementation of those suggestions belonged to the Committee of Ministers; their binding authority was, however, visible more in the political than in the legal dimension. There have been several instances of slow or reluctant reactions by national governments and, in effect, repetitive cases kept accumulating before the Strasbourg Court’.61

It is only with the new practice of the so-called pilot judgements that the ECtHR asks the respondent State to take appropriate legal measures in the operative part of the judgment.62 This fairly recent practice is based on a resolution and recommendation by the Committee of Ministers that invites the Court to identify the source of possible systematic problems in its judgments stemming from a violation of the Convention63 and that emphasizes the Contracting States’ ‘general obligation to solve the problems underlying violations found’.64 Since then, the Court has detected various systemic problems within national legislations, but in some cases it has been more cautious in applying the pilot-judgement procedure, 61

L. Garlicki, ‘Broniowski and After: On the Dual Nature of ‘Pilot Judgements’’, in L. Caflisch, J. Callewaert, R. Liddell, P. Mahoney and M. Villiger (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views (Kehl: N.P. Engel, 2007), p. 183.

62

In short, as remarked by Antoine Buyse, ‘a pilot judgment could be said to address a general problem by adjudicating a specific case’. See A. Buyse, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law’ (2008) 68 Heidelberg Journal of International Law 129-153 at 129. The pilot judgment procedure is now regulated by rule 61 of the Rules of the Court. Applications raising questions that concern a structural or endemic situation fall within the seven categories of priority which the ECtHR has established in ‘The Court’s Priority Policy’ (http://www. echr.coe.int/NR/rdonlyres/AA56DA0F-DEE5-4FB6-BDD3-A5B34123FFAE/0/2010__Priority_policy__ Public_communication.pdf). For a critical analysis of the procedure under discussion, see S. Wallace, ‘Much Ado About Nothing? The Pilot Judgment Procedure at the European Court of Human Rights’ (2011) 1 European Human Rights Law Review 71-81. See also, V. Zagrebelsky, ‘Violazioni ‘strutturali’ e Convenzione europea dei diritti umani: interrogativi a proposito di Broniowski’ (2008) 2 Diritti umani e diritto internazionale 5-19.

63

Resolution Res(2004)3 of the Committee of Ministers on judgments revealing and underlying systematic problems, adopted on May 12, 2004.

64

Recommendation Rec(2004)6 of the Committee of Ministers to Member States on the improvement of domestic remedies, adopted on May 12, 2004. This is the instrument that coined the term pilot judgement.

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considering the likely reaction of the State concerned. Indeed, States’ hesitations in implementing such judgments may jeopardize the authority of the ECHR system itself.65 On the other hand, if the term judicial activism is interpreted more broadly to include the judges’ tendency to go beyond the judicial function strictly understood, to advance rights and interests that are not prima facie protected by the ECHR’s provisions, the threat of judicial activism is more real. For instance, although the ECHR has no express provision on the protection of ‘environmental human rights’,66 the ECtHR is imposing positive environmental obligations upon the States, which are the other face of an individual right to a clean environment. This attitude of the Court has been criticized on the grounds that ‘the purpose of the ECHR is not to set acceptable political goals that all states have a reason to promote, albeit at their own discretion. Rather, the point and purpose of the ECHR can be located in the value of legality, i.e., the value which governs when the use of the state’s coercive power against its people is legitimate’.67

Questionable – and unavoidable – as it may be, the broadening of the scope of ECHR rights is not the real threat to State sovereignty coming from the development of ECHR law. Those who fear a gouvernement des juges should, in my opinion, take a closer look to the development of doctrines – such as the positive obligations doctrine – that enable the ECtHR to extend its review to encompass violations originating from private acts and States’ failures to act.



2.1.5 Strasbourg Constitutionalism: Its Foundations and Limits

The ECHR proclaims that ‘justice and peace in the world are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend’.68 Its main purpose is to make sure that certain civil and political rights are protected at the national level under the supervision of an international court. Accordingly, the function of the ECtHR is to ensure the respect for fundamental rights through the interpretation and application of the Convention. The ECtHR made clear, however, that its role is not limited to 65

For a review of key cases in which the ECtHR had recourse to the pilot judgment procedure, see P. Leach, H. Hardman, S. Stephenson, K.B. Blitz, Responding to Systemic Human Rights Violations. An Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and Their Impact at National Level (Antwerp, Oxford and Portland, OR: Intersentia, 2010).

66

The expression was used for the first time by the Grand Chamber in App. No. 36022/97, Hatton v. United Kingdom [2003] para. 122.

67

G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), p. 36.

68

Preamble of the ECHR.

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providing individual relief, but that ‘its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States’.69 This raises the question of the constitutional role of the Court. In the Loizidou case, the Grand Chamber referred to the Convention as ‘a constitutional instrument of European public order’,70 and then went on to decide that the Convention’s provision regarding States’ declarations of territorial application could not effectively allow the States to exclude areas of law and practice within their jurisdiction from supervision by the Convention institutions. Since then, the formula has been repeated only once by the ECtHR to emphasize the relative nature of the presumption of equivalent protection for fundamental rights within EU law.71 Nonetheless, this statement has been quoted many times by scholars seeking to portray the evolution of the institutional role of the ECtHR.72 It is widely recognised that the ECtHR has developed some of the features of a Constitutional Court. Nonetheless, the Court is not a constitutional court in an orthodox sense, because it does not have the power to invalidate national statutes and regulations that are contrary to the Convention.73 Moreover, the Court has always stated that it will not, in principle, make consequential orders or declaratory statements with regard to the means whereby the States will resolve a breach of the Convention, or make reparation for its consequences, since the supervision on the execution of the judgments falls within the competence of the Committee of Ministers of the Council of Europe ex Article 46 of the ECHR. 69 70

App. No. 25965/04, Rantsev v. Cyprus and Turkey [2010] ECtHR, para. 197.

App. No. 15318/89, Loizidou v. Turkey [1996] ECtHR [G.C.] para. 75; emphasis added. The formula was already in the ruling of the Commission on the admissibility of the same case. See App. No. 15299/89, 15300/89, 15318/89, Chrysostomos, Papachrysostomos, and Loizidou v. Turkey [1991] ECommHR para. 22.

71

See App. No. 45036/98, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [2005] ECtHR [G.C.], especially para. 156.

72

I. Cameron, ‘Protocol 11 to the European Convention on Human Rights: The European Court of Human Rights as a Constitutional Court?’ (1995) 15 Yearbook of European Law 219-260; J.-F. Flauss, ‘La Cour européenne des droits de l’homme est-elle une cour constitutionnelle?’ (1999) Revue française de droit constitutionnel 711-728; E.A. Alkema, ‘The European Convention as a Constitution and its Court as a Constitutional Court’, in P. Mahoney, F. Matscher, H. Petzold, and L. Wildhaber (eds.), Protecting Human Rights: The European Perspective (Koeln: Carl Heymannns Verlag KG, 2000), p. 41; L. Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23 Human Rights Law Journal 161-165; N. Croquet, ‘The European Court of Human Rights’ Norm-Creation and Norm-Limiting Processes: Resolving a Normative Tension’ (2010-2011) 17(2) Columbia Journal of European Law 307-374, at 361 ff.

73

The issue was discussed during the drafting of the Convention. It was considered that the Court should not give a ruling on ‘cases of violation of the Convention simply by the promulgation of legislative acts’. See Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, 8 vols. (The Hague: Martinus Nijhoff, 1975), vol. IV, p. 44.

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The constitutional features of the ECHR system lay mainly in the principles of interpretation developed by the ECtHR. As has been remarked by Steven Greer, ‘some of these are “constitutional” because they address three quintessentially constitutional questions: the “normative question” of what a given Convention right means including its relationship with other rights and with collective interests, the “institutional question” of which institution (judicial/non-judicial; national/European) should be responsible for providing the answer, and the “adjudicative question” of how, i.e., by which judicial method, the normative question should be addressed’.74

According to Laurence Helfer, however, it would be more appropriate to read the development of the ECtHR jurisprudence in light of the principle of embeddedness rather than constitutionalism.75 He stresses that ‘the ECtHR has modified its jurisprudence to establish greater control over domestic political and judicial decision-makers’.76 Contrary to constitutionalism, the ‘embeddedness perspective seeks first and foremost to augment the mechanisms available to remedy human rights violations in national law, obviating the need for individuals to seek relief at the regional level. Where these national mechanisms are inadequate, the ECtHR should increase its supervision of domestic courts and political bodies and provide incentives for government actors faithfully to follow the Court’s case law and to remedy Convention violations at home’.77

The Brighton Declaration adopted in April 2012 by the High Level Conference on the Future of the European Court of Human Rights,78 indicates that this is the way forward, emphasizing as it does the need for effective implementation of the Convention at the national level. To this end, the Conference encourages the States Parties to consider, inter alia, the establishment of an independent National Human Rights Institution and the introduction, if necessary, of new domestic legal remedies.

74

S. Greer, ‘Constitutionalizing Adjudication under the European Convention on Human Rights’ (2003) 23 Oxford Journal of Legal Studies 405-433 at 407.

75

L.R. Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 European Journal of International Law 125-159.

76 77

 Ibidem, 131.

 Ibidem, 139.

78

High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, http://hub.coe.int/20120419-brighton-declaration

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3 The European Court of Justice as Promoter and Guardian of Human Rights and Fundamental Freedoms in the European Union Space

In the aftermath of World War II, the establishment of the European Coal and Steel Community (1951), the European Economic Community, and the European Atomic Energy Community (1957) answered the concern that already characterized the mission of the Council of Europe, namely, to bring peace and stability to Europe through the achievement of greater unity between the European States. Given the economic nature of the European Communities project, the protection of fundamental rights took up little room in the founding treaties. However, it was soon clear that the lack of protection for fundamental rights within the EU system would threaten the legitimacy, supremacy, and uniform application of EU law.79 The ECJ thus prepared the way for establishing a legal framework for fundamental rights protection at the EU level, and thus played an active role in the development of human rights protection within EU law since the late 1960s. The EEC Treaty contained substantive norms that invoked catchwords of human rights discourse, such as equality and freedom. Accordingly, the ECJ first created a specific obligation by means of general principles of law, later developed the equality principle, and then turned the so-called four fundamental freedoms into fundamental economic rights by means of human rights doctrines.



3.1 The Foundations of EU Human Rights Law

The protection of fundamental rights in the EU legal order has its foundations in the ECJ’s creative jurisprudence. The ECJ recognized respect for fundamental rights as a general principle of EC law relying on the laws on the Member States. Thus, even though the EC Treaty did not contain any express reference to fundamental rights, the principle of the protection of fundamental rights has enjoyed, since its establishment, constitutional status. Indeed, as illustrated by Takis Tridimas, since the origins of general principles as a source of law lie in the EC Treaty (especially Art. 288(2) and 220), ‘they have equivalent status with the founding Treaties’.80 It follows, inter alia, that the principle of the protection of fundamental rights binds the EU institutions in the exercise of their powers and it plays an important role in adjudication before the ECJ.

79

In particular, the Italian and German constitutional courts initially refused to agree that EU law should prevail over protection of fundamental rights afforded by domestic law, and they affirmed that they might one day have to review EU law provisions for compatibility with constitutionally protected rights.

80

T. Tridimas, The General Principles of EU Law, 2nd ed. (Oxford: Oxford University Press, 2006), p. 50.

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The development of a general principle of respect for fundamental rights started with the Stauder judgment.81 In an obiter dictum, the Court announced that fundamental human rights are part of the general principles of EU law. However, although considering a question raised with respect to German regulations, the Court intentionally avoided any reference to particular fundamental rights recognized by German constitutional law, to clarify that they were not directly applicable when the issue was governed by European Community law. In a later judgment, the ECJ confirmed that national constitutional laws of Member States were a mere source of cognition for determining the unwritten Community human rights catalogue. Indeed, it affirmed that ‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’.82 Subsequently, the international treaties concluded by the Member States were indicated as additional tools from which to draw guidelines for EU human rights standards.83 In 1992, the Treaty of Maastricht provided a formal basis for EU human rights law by establishing an obligation on the Union to respect fundamental rights as guaranteed by the ECHR as they result from the constitutional traditions common to the Member States. Such an obligation has two aspects: a negative one, which lays upon the European institutions the duty not to adopt measures in conflict with fundamental rights, and a positive one, which requires them to take the necessary steps to prevent Union’s acts that could occasion or allow fundamental rights infringements.84 81

Case 29/69, Erich Stauder v. City of Ulm – Sozialamt, [1969] ECR 419, para. 7. The case concerned a decision by the Commission allowing for the sale of butter at a reduced price to social welfare recipients. German regulations required that a voucher issued in their name would have to have been granted to the persons concerned. The plaintiff complained of a violation of his human rights because he was obliged to disclose his name, and thus his identity, when purchasing butter at the lower price. Relying on a teleological interpretation of the contested measure, the ECJ found that, in order to avoid abuse, an individualisation was required but this did not necessarily require the mentioning of the name.

82

Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, [1970] ECR 1125, para. 4.

83

See Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, [1974] ECR 491, especially para. 13.

84

See, for instance, Case C-68/95, T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung (C-68/95) [1996] ECR I-6065. Other examples can be found in EU legislation. Thus, Article 3 of the Council regulation No. 2679/98, which treats the functioning of the internal market in relation to the free movement of goods among the Member States, provides for an interpretation of the regulation in keeping with the fundamental rights; Council directive 93/119/EC on the protection of animals at the time of slaughter or killing provides for a derogation from the general rules in order to protect the freedom of religion.

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In other words, the respect for fundamental rights is a requirement for the legitimacy of every Union act. Moreover, given the close interlock between Union law and the domestic laws of the Member States, the obligation concerns as well every national provision falling within the field of application of EU law, which includes national law involving a sufficient connection with EU law. Despite the vagueness of this formula, national acts are considered to fall within the field of application of the Union law in two classes of cases. The first is the case of measures implementing a regulation, transposing a directive, or enforcing a decision or a judgment of the ECJ or of the EGC. The second is the case of a State that, according to EU law, imposes restrictions on one of the four fundamental freedoms. The ECJ ruled that when a Member State applies EC Treaty provisions to justify a national rule that could constitute an obstacle to the exercise of a fundamental freedom, ‘such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights’.85 Finally, the new Article 6 of the TEU, while granting to the Charter of Fundamental Rights the same legal value as the Treaties, declares that fundamental rights, as above defined, ‘shall constitute general principles of the Union’s law’.



4 Which Fundamental Rights for the European Union?

The ECJ jurisprudence started off, on one hand, a debate on the formal accession of the EU to the European Convention on Human Rights, and, on the other, a political demand for a written human rights catalogue for the Union. The Commission proposed the accession of the Community to the ECHR in a memorandum dating from 1979, with the support of the Parliament. However, the advisory opinion rendered by the ECJ on the accession was negative. Considering that the Community’s legal order rested on the principle of conferred power, the ECJ held that ‘no Treaty provision confer[red] on the Community institutions any general power to enact rules on human rights or to conclude international convention in this field’.86 Afterwards, in the Grant judgment, the ECJ ruled out the possibility of an accession based on the residual legislative power ex Article 308 TEC (now, Art. 85

Case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v. Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, [1991] ECR I-2925, para. 43; Case C-62/90, Commission of the European Communities v. Federal Republic of Germany, [1992] ECR I-2575, para. 23. See also Advocate General Tesauro, opinion delivered on 13 March 1997 in Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag, [1997] ECR I-3689, especially para. 26.

86

Opinion 2/94 on the Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, delivered on March 28, 1996, [1996] ECR I-1759, para. 27.

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352 TFEU). According to this judgment, accession to the ECHR system would require an amendment of the founding treaties, because: ‘although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community’.87 The political intention to accede to the ECHR was expressed for the first time in the Treaty Establishing a Constitution for Europe and maintained in its successor, the Lisbon Treaty. Meanwhile, the European Parliament adopted the first EU fundamental rights catalogue in 1989, with the Declaration of Fundamental Rights and Freedoms.88 Nonetheless, the demand for a legally binding catalogue of fundamental rights found a complete answer only with the Treaty of Lisbon, which confers legally binding status to the Charter of Fundamental Rights of the European Union. Article 6 of the TEU, establishing that the Union shall accede to the ECHR, further enhanced the credibility of the EU’s human right policy.89 In the Stockholm Programme, the EU Council stressed the key importance of a rapid accession of the EU to the ECHR to foster the coherence of human rights protection in Europe under the Lisbon Treaty.90 The accession, however, requires the conclusion of an agreement under Article 218 TFEU, and preparatory works are now under way.91 In fact, even though the accession became legally possible only on June 1, 2010, with the entry into force of Protocol 14 to 87

Case C-249/96, Lisa Jacqueline Grant v. South-West Trains Ltd, [1998] ECR I-621Grant [1998], especially para. 45. On the competence issue, see J.H.H. Weiler and S.C. Fries, ‘A Human Rights Policy for the European Community and Union: The Questions of Competences’, in P. Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999), pp. 147-165.

88

.

89

See European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, .

90 91

.

Official negotiations started on July 7, 2010. See Council of Europe press release 545(2010), European Commission and Council of Europe kick off joint talks on EU’s accession to the Convention on Human Rights, at . On the substantive and procedural issues raised by the EU accession to the ECHR, see P. Gragl, ‘Accession Revisited: Will Fundamental Rights Protection Trump the European Union’s Legal Autonomy’ (2011) European Yearbook on Human Rights 159-172; J. Jacqué, ‘The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48(4) Common Market Law Review 995-1024; T. Lock, ‘Walking on a Tightrope: The draft ECHR Accession Agreement and the Autonomy of the EU Legal Order’ (2011) 48(4) Common Market Law Review 1025-1054; N. O’Meara, ‘A More Secure Europe of Rights?’ The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR’ (2011) 12 German Law Journal 1813-1832.

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the ECHR,92 the Council of Europe’s Steering Committee for Human Rights (CDDH) has been studying the technical and legal issues concerning accession since the early 2000s. In October 2011, the CDDH discussed a draft legal instrument setting out the modalities of accession to the ECHR by the EU.93 Given the political implications of some of the pending problems, this Committee agreed to transmit a report and the draft instruments to the Committee of Ministers for consideration and further guidance. However, agreements have already been reached on some of the key points including, for instance, the election of judges to the ECtHR. Given that they are elected by the Parliamentary Assembly of the Council of Europe and that the EU will not become a member of this organization, a special solution had to be found. Article 6 of the draft legal instrument on the accession of the EU to the ECHR therefore provides that a delegation of the EU Parliament shall participate, with the right to vote, in the sitting of the Parliamentary Assembly of the Council of Europe and its relevant bodies when it shall proceed to the election of judges to the ECtHR.



4.1 The Four Fundamental Freedoms

Article 26 TFEU guarantees the free movement of goods, persons, services, and capital as the central pillars of the common market. Since the early 1980s, the ECJ has referred to them as to the four fundamental freedoms. Nevertheless, the notion is not really the same notion featuring in the context of the ECHR case law. Within EU law, the four fundamental freedoms originally were merely means to establish a common market. On the other hand, the fundamental freedoms proclaimed in the ECHR protect the dignity and autonomy of individuals. The ECJ has gradually extended the scope of application of the fundamental freedoms and redefined them as subjective rights that enjoy horizontal effect94 and create positive obligations.95 While a review of the relevant academic literature shows that there is no general consensus among scholars on the status of the four freedoms, it has been remarked that ‘since the Van Gend & Loos case there has been general 92

Originally the ECHR was not open to international organizations. Protocol No. 14 introduces a new second paragraph in Article 59 ECHR, which expressly provides that the EU may accede to the Convention.

93

For a commentary of the draft agreement, see T. Lock, ‘End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR’ (2012) 31 Yearbook of European Law 162-197.

94

See, O. Cherednychenko, ‘EU Fundamental Rights, EC Fundamental Freedoms and Private Law’ (2006) 14 European Review of Private Law 23-61; E.J. Lohse, ‘Fundamental Freedoms and Private Actors – towards an ‘Indirect Horizontal Effect’’ (2007) 13 European Public Law 159-190.

95

See C. Walter, ‘History and Development of European Fundamental Rights and Fundamental Freedoms’, in D. Ehlers (ed.), European Fundamental Rights and Freedom (Berlin: De Gruyter Recht, 2007), especially at pp. 18-22; V. Skouris, ‘Fundamental Rights and Fundamental Freedoms: The Challenge of Striking a Delicate Balance’ (2006) 17(2) European Business Law Review 225-239 at 233-234.

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agreement that, being directly effective in the national legal orders of the Member States, fundamental freedoms constitute subjective rights of individuals which can be enforced in the courts’.96 Overall, even though fundamental freedoms and fundamental rights have substantially the same structure and similar effects, some differences between them persist. In particular, and with reference to the scope of application, fundamental freedoms apply, in principle, only to cross-border situations that involve more than one Member State and serve the economic goals of the internal market. Fundamental rights find instead their justification in values linked to human dignity and personal freedom.



4.2 The Charter of Fundamental Rights of the European Union

The EU Charter of Fundamental Rights was drafted by the Convention. This implied a new form of participation by the Member States, which were represented by both delegates of governments and members of national parliaments. Members of the European Parliament and the European Commission and observers from the ECJ and the Council of Europe took part in the work of the Convention as well. To bestow a higher degree of democratic legitimacy to the Charter, the Convention also promoted the broader involvement of civil society. The Charter was finally proclaimed by the Council of Nice.97 Although it acquired formal legal status only when the Lisbon Treaty became effective, it has exercised a profound influence on the institutions. The political significance of its list of rights and values considered fundamental within the European Union acted as a counterweight to its original lack of binding legal effect. Only a few months after its publication, the Charter became an obligatory reference tool for the European legislature. The Commission decided that any proposal for legislation, and any draft instrument to be adopted by it, would first be scrutinised for compatibility with the EU Charter of Fundamental Rights, as part of the normal decision-making procedures. Furthermore, legislative proposals and draft instruments having a specific link to fundamental rights would incorporate a quotation from the Charter as a formal statement of compatibility. The Commission also adopted a Communication aimed at improving the compliance of its legislative proposals with the requirements of the Charter. Restating the 96

O. Cherednychenko, ‘EU Fundamental Rights, EC Fundamental Freedoms and Private Law’ (2006) 14 European Review of Private Law 23-61 at 35.

97

The adoption of the Charter caused some concerns about the expansion of fundamental rights protection against Member States. The United Kingdom and Poland thus signed an opting out protocol declaring that ‘the Charter does not extend the ability of the Court of Justice of the European Union, or any other court or tribunal of Poland or of the United Kingdom, to find the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms’.

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guidelines for the preparation of the impact assessments that accompany legislative proposals, it added to them questions aimed at evaluating the potential impact of different policies on the rights, freedoms, and principles listed in the EU Charter of Fundamental Rights. On the other hand, the European Parliament changed its Rules of Procedure by, in particular, amending Rule 34, that now provides: ‘during the examination of a legislative proposal, Parliament shall pay particular attention to respect for fundamental rights and in particular that the legislative act is in conformity with the European Union Charter of Fundamental Rights’. Finally, the adoption of the Charter encouraged the development of political forms of monitoring. Since 2000, the Charter has been the main source of reference in the European Parliament’s annual report on the state of fundamental rights in the Union. This monitoring led to the creation, in September 2002, of the EU Network of Independent Experts on Fundamental Rights. The mission of it was to ensure a high degree of expertise in drafting the annual reports, in providing opinions on fundamental rights issues when requested by the Commission, and in assisting the Commission and the Parliament in developing European Union policy on fundamental rights. The Network ceased operation in 2006 and has since been replaced by the Fundamental Rights Agency Legal Experts (FRALEX). The EU Charter of Fundamental Rights also played a central role in establishing the scope of the EU Agency for Fundamental Rights.



5 The European Agency for Fundamental Rights

The idea of establishing an European Agency for Fundamental Rights has been advanced in academic debate since the second half of the 1990s. Such an agency should have provided reliable and comparable data in the form of an annual survey, which would become an indispensable element in Europe’s human rights strategy.98 The main argument in favour of the establishment of such an institution was that it could encourage the EU to adopt a more preventive and proactive approach to fundamental rights. The decision by the European Council in Brussels on December 12 and 13, 2003 to extend and convert the existing European Monitoring Centre on Racism and Xenophobia (EUMC) into a Fundamental Rights Agency came however unexpectedly.99 A broad public consultation began with the drafting of the proposal for the Council Regulation establishing the European Union Agency for Fundamental

98

P. Alston and J.H.H. Weiler, ‘An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights’, in P. Alston (ed.), The EU and Human Rights, cit., especially at pp. 55-59.

99

The EUMC was created by Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia.

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Rights, effective on March 1, 2007.100 The Agency is concerned with data collection and research, including the publication of annual thematic reports and the drafting of opinions for the EU institutions and Member States when implementing Union law. It must also work to raise public awareness of fundamental rights issues and promoting co-operation and dialogue within civil society.



6 The Relationship between the ECHR System and the European Union

Fundamental rights now bind the institutions of the Union and the Member States when applying EU law, and they are justiciable before the ECJ and the EGC in a variety of circumstances. Such circumstances include: infringement proceedings against Member States; reviews of the legality or possible annulment of EU acts under Article 263 TFEU; the declaration of invalidity of EU acts in cases referred by a national court; actions for damages under Article 340(2) TFEU; preliminary rulings. While the ECtHR has jurisdiction over actions involving EU law, the EU cannot be a defendant before the Strasbourg Court because it is not, so far, a signatory of the Convention. However, since the Contracting States are responsible under the ECHR for the exercise of the powers they transfer to an international organisation,101 there are two ways in which EU acts can be challenged before the ECtHR. These are, first, by taking action against a State’s act that implements European Union law in the domestic legal order, and, second, by lodging an application against all the Member States of the EU. In the first case, there is a problem when the defendant State, because of its obligations under EU law, cannot exercise any discretionary power in acting in a manner considered contrary to the ECHR. To hold it responsible in such a case would impose on it a strict liability regime, because the State would in fact be held responsible for an act beyond its power. But, as explained above, the protection system of the ECHR does not rest on principles of strict liability. The ECtHR met with just such an issue in the famous Bosphorus case.102 The Strasbourg Court affirmed its jurisdiction to review the case, but avoided actual judicial scrutiny by means of the equivalent protection doctrine. The case arose when Irish authorities impounded an aircraft leased by the applicant company from Yugoslav Airlines; this action was taken in pursuance of an EC Council Regulation that implemented UN sanctions against the Federal Republic of Yugoslavia. The interpretation and applicability of the 100

Regulation 168/2007 establishing a European Union Agency for Fundamental Rights [2007] O.J. L53/1. The first director, Morten Kjærum, took office on June 1, 2008.

101

See App. No. 13258/87, M. & Co. v. The Federal Republic of Germany [1990] ECommHR, where the Commission made clear that ‘a transfer of powers does not necessarily exclude a State’s responsibility under the Convention with regard to the exercise of the transferred powers’.

102

Bosphorus, supra footnote 71.

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regulation had been contested before the domestic courts, and the ECJ was asked for a preliminary ruling.103 Considering that the aircraft was impounded within Irish jurisdiction, the ECtHR ruled that the application was compatible ratione personae, loci, and materiae with the Convention. Then, examining the merits of the applicant’s claim, the Court stressed the fact that all the actions of the Irish authorities amounted to mere compliance with State’s legal obligations under EC law.104 The Court then enunciated the equivalent protection doctrine, by stating that ‘state action taken in compliance with such legal obligations [i.e., obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty] is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides [...]. By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued [...]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection [...]. Any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order”’.105

In the Bosphorus case, however, the ECtHR found that the presumption should not be rebutted; until today, in fact, the Court has never come to a different finding, even though in that case some judges cast doubts on the approach followed by the Court to establish the key notion of equivalent protection.106 In particular, the definition of the manifestly deficient criterion set out by the Strasbourg Court is ambiguous, because different interpretations of it are possible. It is thus unclear whether any straightforward deficiency in the system for the protection of fundamental rights would lead to the rebuttal of the presumption of compatibility, or whether such a deficiency should reach a certain degree of seriousness. 103

Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others, [1996] ECR I-3953.

104 105

Bosphorus, supra footnote 71, para. 148.

Ibidem, para. 155-156, emphasis added.

106

Ibidem; joint concurring opinion of Judges Rozakis (Greece), Tulkens (Belgium), Traja (Albania), Botoucharova (Bulgaria), Zagrebelsky (Italy) and Garlicki (Poland); concurring opinion of Judge Ress (Germany). The judges especially contested the general and abstract manner in which the majority conducted the review of the EU system in order to assess whether it provided equivalent protection.

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The Bosphorus judgment was adopted with a unanimous vote. Nonetheless, seven out of the seventeen judges sitting in the Grand Chamber disagreed with the reasoning followed by the majority. The judgment was also criticized by scholars who were concerned, inter alia, by the abstract way in which the equivalence of protection was established.107 The ECtHR upheld the presumption of equivalence in the abstract by considering the evolution of the protection for fundamental rights in EU law and looking briefly at the limited access of individuals to the ECJ. Moreover, although the ECJ de facto failed to review proportionality, the ECtHR avoided any examination of whether the contested measure struck a fair balance between the individual and the public interest. The ECtHR refrained from answering that question, because the general interest pursued by the impugned seizure complied with EU law. Thus, according to the ECtHR, the proportionality issue was absorbed de facto by the equivalent protection statement. The equivalent protection doctrine could prevent the ECtHR from providing effective protection because when the ECtHR establishes a presumption that an international organisation, to which the States have transferred sovereign powers, provides protection for fundamental rights in a way equivalent with the ECHR, it will not carry on a full review of the States’ acts adopted to comply with obligations flowing from membership within that organisation. Nevertheless, as noticed by some scholars,108 the presumption of equivalent protection applies only if the contested measure establishes obligations that leave no discretion to the State, as it happened in the Bosphorus case. Thus, the ECtHR will exercise its normal control whenever an alleged interference with Convention rights is the results from the exercise of the discretion that member States enjoy when implementing EU directives. Many commentators consider the Bosphorus judgment as deferential to the Luxembourg judges, and in line with the spirit of dialogue and cooperation that characterizes the relationship between the ECtHR and the ECJ.109 This raises the 107

A mong the many critics of the judgment, see Leonard Besselink, who considers the equivalent protection doctrine to be an unsuccessful transplant of the Bundesverfassungsgericht’s ‘Solange’ approach and hopes that the EU accession to the ECHR will be a first step towards a new approach. L.F.M. Besselink, ‘The European Union and the European Convention on Human Rights after the Lisbon Treaty: From Bosphorus Sovereign Immunity to Full Scrutiny?’, in A. Sabitha (ed.), State Immunity: A Politico-Legal Study, (Hyderabad, Andhra Pradesh, India: Icfai University Press, 2008-09), pp. 179-196

108

A mong others, M. Pellonpää, ‘The European Court of Human Rights and the European Union’, in L. Caflisch, J. Callewaert, R. Liddell, P. Mahoney, and M. Villiger (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views, cit., pp. 347-370; C. Costello, ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6(1) Human Rights Law Review 87-130; C. Eckes, ‘Does the European Court of Human Rights Provide Protection from the European Community? – The Case of Bosphorus Airways’ (2007) 13 European Public Law 47-67.

109

See, for instance, S. Douglas-Scott, ‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Aquis’ (2006) 43 Common Market Law Review 629-665; L. Garlicki, ‘Cooperation of Courts: The Role of Supranational Jurisdictions in Europe’ (2008) 6 International Journal of Constitutional Law 509-530.

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question of whether the Bosphorus doctrine will remain valid after the accession to the ECHR by the EU. According to the Convention on the Future of Europe, ‘after accession, the Court of Justice would remain the sole supreme arbiter of questions of Union law and of the validity of Union acts; the European Court on Human Rights could not be regarded as a superior Court but rather as a specialised court exercising external control over the international law obligations of the Union resulting from accession to the ECHR. The position of the Court of Justice would be analogous to that of national constitutional or supreme courts in relation to the Strasbourg Court at present’.110

Considering the question from the ECtHR perspective, the need for equal treatment of the parties to the ECHR would lead to the conclusion that the ECtHR should abandon the Bosphorus doctrine, precisely because it grants partial immunity to EU actions. On the other hand, the Charter of Fundamental Rights states that the meaning and scope of the rights that correspond to the rights guaranteed by the ECHR should be interpreted consistently with the ECtHR’s jurisprudence.111 Thus, when fundamental rights issues are at stake, the ECJ has to know and bear in mind the Strasbourg Court’s jurisprudence, although it is not strictly bound by it. Notably, the ECJ is free to apply a higher standard of protection for fundamental rights than those set out by the ECtHR. All this considered, the ECtHR has no reason to abandon the equivalent protection doctrine. Moreover, the Lisbon Treaty strengthens the procedural guarantees of fundamental rights by extending the legitimatio ad causam of individuals.112 This can be interpreted as a further step in the reinforcement of the presumption of equivalence. Delegations from the ECtHR and ECJ have recently issued a joint communication analysing the ECtHR’s judicial review of EU acts. Two hypotheses are taken into consideration. The first concerns direct actions in which individuals complain about measures adopted by EU institutions subsequent to the accession of the EU to the ECHR. In those cases, the exhaustion of domestic remedies rule (i.e., Article 35(1) ECHR) would entail that applicants should first address the EU Courts, to respect the subsidiarity principle. The second would relate to applications against acts adopted by the authorities of the Member States of the EU for the application or implementation of EU law. In this case, applicants will have to refer the matter to domestic courts first, and the courts have the possibility (and in some cases the obligation) to ask the ECJ for a 110 111

Final report of Working Group II, Convent 354/02, at p. 12.

Article 52(3) of the Charter. See also the text of explanations, which specifies that ‘the meaning and the scope of the guaranteed rights are determined not only by the text of those instruments [i.e. the ECHR and the Protocols to it], but also by the case law of the European Court of Human Rights and by the Court of Justice of the European Communities’ (Conven 49, at p. 48).

112

See Article 263 of the TFEU.

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preliminary ruling on the interpretation and validity of the provisions of EU law at issue. In the case in which domestic courts do not ask for a preliminary ruling, the ECtHR would nonetheless be required to review the consistency of EU law provisions with the ECHR. To respect the principle of subsidiarity in that situation, the ECJ should be enabled to pronounce itself before the ECtHR adjudicates the case. Such a procedure, a so-called ‘internal review’, should be put in place in connection with the accession of the EU to the Convention.113

Conclusion The two European Courts played a major role in the building of a European identity and in the writing of a European narrative, in the aftermath of the Second World War. In the writing of such a narrative, human rights, as the negation of atrocities committed during the war, worked as lingua franca. However, given the lack of an homogeneous legal and cultural code of reference, the task of creating and implementing common human rights standards was – and still is – quite challenging. In the early years, the ECommHR and the ECtHR played a more diplomatic role that helped the ECHR system to gain consensus and support by the Contracting States. Then the ECtHR used this acquired legitimacy to develop a more dynamic approach in the interpretation and application of the ECHR. This attracted some criticism by scholars who feared that the Strasbourg Court would begin overstepping the boundaries of its original mandate. Over the years, however, the system has proven its capacity to make the law evolve and has participated in the development of a common legal conscience by controlling the choices of national legislators and renewing legal categories through a dynamic approach to fundamental rights. The ECtHR in particular has expanded its influence across the entire field of private law. The Pla and Pucernau case, in which the ECtHR held that a national court’s interpretation of a will was erroneous, is one of the most significant examples of the pervasive impact of the jurisprudence of the Court in the field of private law. This type of judicial creativity, more than the evolutive interpretation of the scope of ECHR rights, erodes the sovereignty of States. The development of the ECHR system and the endless backlog of cases pending before the Strasbourg Court have lead to a debate on the institutional role of the ECtHR, which is still ongoing in academic and political circles. Since the 1970s, the Council of Europe has not been alone in securing the supranational protection of human rights in the European landscape. Even though the ECJ was not, at first, entrusted with the task of safeguarding human rights and fundamental freedoms, in due time it introduced fundamental rights into EU law as a standard for assessing the legality of Union acts. 113

Joint communication from Presidents Costa and Skouris, available at: .

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The recognition of the protection of fundamental rights as a general principle of EU law, and the supremacy of EU law over national laws, urged the European Union to create its own system of protection of fundamental rights. Over the years, the original conception of the Community has been transformed, and the commitment to human rights has became a significant issue on the European agenda. The Charter of Fundamental Rights of the European Union, solemnly proclaimed on December 7, 2000 at the European Council held in Nice was the first step taken to overcome the gap created by the lack of a written fundamental rights catalogue. The Charter is today an authoritative restatement of the judicial acquis in the field of fundamental rights protection. It is now legally binding and the EU bodies must therefore take it into consideration in the exercise of their functions. Over the years, the jurisdiction of the Strasbourg and Luxembourg Courts has been progressively converging in the area of fundamental rights protection. The relationship between the two Courts is a long-standing topic in academic and political debates. It can be said that, failing formal rules regulating the relationship between them, they have developed good patterns of cooperation through mutual respect for each other’s case law. The equivalent protection doctrine by the ECtHR in the Bosphorus case is clearly the most complete expression of deference to the EU system. The Brighton Declaration of 2012 shows that the Bosphorus doctrine will not be abandoned by the ECtHR. On the contrary it will probably be extended to include those States, that – as the EU – have enacted the obligation of consistent interpretation, by applying standards on the protection of fundamental rights that conform to the principles embodied in the Convention and ECtHR’s case law. Indeed, according to point 15(d) of the Brighton Declaration, an application should be regarded as manifestly ill-founded if it ‘[…] raises a complaint that has been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation as appropriate’.

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The Protection of the Right to Property under European Human Rights Law

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the protection of the right to property under european human rights law

Introduction As already noted, European human rights law has been developed in an international context by legal practitioners with different linguistic and cultural backgrounds who have succeeded in creating a single legal culture with its own lexicon. The official languages of the ECHR and of its Court are English and French. However, since most judges were educated in countries other than the United Kingdom or France, the language of the ECtHR is different from that of English and French courts. Therefore, the use that the judges of the Strasbourg Court make of legal terms may, in some cases, be considered inaccurate by English or French jurists. For instance, as the United Kingdom’s representative pointed out during the drafting of the ECHR, the term possessions used in Article P1-1 is unknown in the English legal language.1 On the basis of this Article, the ECtHR has developed its own property law principles and vocabulary, which includes the indifferent use of the phrases right to property and right of property by the Strasbourg and Luxembourg Courts under European human rights law.



1 Article 1 of the First Protocol to the ECHR

The inclusion of a specific protection for the right to property into the text of the ECHR proved to be one of the most controversial issues to confront the States’ representatives. The inclusion posed a series of difficult threshold questions, such as: Is the right of property a human right? What kind of property should be protected? If the right of property is a relative right, to what extent is it essential? To what extent should member States be allowed to interfere with the exercise of property rights? Article P1-1 is thus the outcome of a long debate of a mostly political nature.2 On one hand, conservative members of the Consultative Assembly looked with favour on the inclusion of the right of property and considered it to be a natural extension of personal freedom; on the other hand, most of the socialist members, referring to the right to property, stressed its social and economic nature in order to argue for its exclusion as an instrument for the protection of fundamental rights.3 1

See Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, 8 vols. (The Hague: Martinus Nijhoff, 1975), vol. VI, p. 89. The British representative observed that ‘the word ‘possessions,’ used in the English text, is not a really satisfactory word [...]. It is a word that would not be found in a British Act of Parliament or any other legal document’.

2

The drafting of the Convention began in May 1949. The Convention was adopted on November 4, 1950 whereas the First Protocol was signed only on March 20, 1952 (nevertheless, the text of its Article 1 was already finished by August 2, 1951).

3

For a description of the drafting process highlighting the legal, philosophical, and political motives behind the formulation of the right of property settled in Article P1-1, see A.R. Çoban, Protection of

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The final text of Article P1-1 is a compromise: both the individualistic view and the social perspectives are considered. The individualistic function of the right of property is expressed in the recognition of everyone’s right to the peaceful enjoyment of his possessions, while the reference to public and general interest as a requirement for every interference with the right of property reflects the social function of property. As often happens with compromise solutions, the text of Article P1-1 is considered to be not fully satisfactory by many commentators. The early commentators observed that the French and English versions of the Article lacked terminological symmetry and consistency. Indeed, comparing the two versions, it can be noted that the English text begins by enunciating that ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’ whereas the French text states that ‘Toute personne physique ou morale a droit au respect de ses biens’. Then the English text refers to ‘possessions’ when it sets out the rule according to which expropriation is subject to certain conditions whereas the French text replaces the term ‘biens’ with ‘propriété’. Finally, the English text recognizes the power of the States to adopt legislation designed ‘to control the use of property’, while the principle is expressed in French with reference to legislation intended to ‘réglementer l’usage des biens’. Commenting on the provision at issue, Egon Schwelb observed that ‘the only reasonable conclusion which can be drawn from this lack of terminological symmetry and consistency is that for the purposes of the Protocol all the terms employed in Article 1 mean the same, namely “property”, “propriété”, and that the use of different expression is legally irrelevant’. 4 This conclusion was subsequently corroborated by the ECtHR in the wellknown Marckx case, in which the Belgian inheritance law was declared contrary to Article P1-1 in conjunction with Article 14 ECHR, because discriminating against illegitimate children. Being one of the first judgments concerning Article P1-1, the ECtHR took care in defining the scope of the article, which it did in the following terms: ‘by recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words “possessions” and “use of property” (in French: “biens”, “propriété”, “usage des biens”); the “travaux préparatoires”, for their part, confirm this unequivocally: the drafters continually spoke of “right of property” or “right to property” to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1). Indeed, the right Property Rights within the European Convention on Human Rights (Aldershot: Ashgate, 2004), chap. 5, pp. 123-142; Y. Haeck, ‘The Genesis of the Property Clause under Article 1 of the First Protocol to the European Convention on Human Rights’, in H. Vandenberghe (ed.), Propriété et droits de l’homme / Property and Human Rights (Brussels: Bruylant, 2006), pp. 163-194; A.W.B. Simpson, Human Rights and the End of Empire. Britain and the Genesis of the Convention (Oxford: Oxford University Press, 2001), pp. 754-807. 4

E. Schwelb, ‘The Protection of the Right of Property of Nationals under the First Protocol to the European Convention on Human Rights’ (1964) 13 American Journal of Comparative Law 518-541 at 520.

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to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property’.5

On the basis of this statement, whose legitimacy was challenged by Judge Gerald Fitzmaurice who referred to it as a ‘postulate’,6 the Court has developed its own theory of property in which the history of Article P1-1 has limited importance, as the ECtHR interpretative approach is intended to reflect societal ideas and values of present-day democratic society and not the views or beliefs of the time when the Convention was drafted.



1.1 The Material Scope

As the capacity to establish property rights is a traditional privilege of the State, the enforcement of Article P1-1 by the ECtHR is very challenging because it will inevitably interfere with States’ economic policies and allocative decisions, and national governments are not comfortable with the idea that an international tribunal might have powers of review over social and economic legislations. Moreover, national property law systems have differences that should not be ignored. Faced with these difficulties, to interpret Article P1-1, the ECtHR references the autonomous meaning doctrine without undertaking a comparative analysis to find common principles or elements of the right to property in the different legal systems. Thus, the Court grants itself the power to re-allocate property rights while respecting the States’ sovereignty to decide what constitutes property within the domestic law. Starting from the Gasus Dosier case, the ECtHR made it clear that it can recognize as possessions, within the meaning of Article P1-1, rights or interests that are not considered as property rights under national law.7 In this case, the applicant, a German company, claimed that Dutch tax authorities infringed its rights under Article P1-1 by seizing goods belonging to it. Since the applicant had, under national law, only a security right in the seized goods, the ECtHR had to decide whether rights in rem other than full ownership could be considered as possessions within the meaning of Article P1-1. Responding affirmatively, the Strasbourg Court stated that ‘the notion “possessions” (in French: biens) in Article 1 of Protocol No. 1 (P1-1) has an autonomous meaning which is certainly not limited to ownership of physical goods’.8 This statement expresses one of the key principles in developing the scope of property rights protection within the ECHR system. On the other hand, the autonomous meaning doctrine proved to be an effective tool to decide cases in which the parties could not agree on whether the applicant had a proprietary interest under national law and in which waiting for the national court’s decision would have taken too long. In such cases, 5

App. No. 6833/74, Marckx v. Belgium [1979] ECtHR, para. 63.

6 7

 Ibidem, dissenting opinion of Judge Fitzmaurice, especially para. 18.

App. No. 15375/89, Gasus Dosier-und Fördertechnik GmbH v. the Netherlands [1995] ECtHR.

8

 Ibidem, para. 53.

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the ECtHR could break the deadlock by means of ‘the autonomous meaning doctrine [that] allows the Court to arrive at its own opinion on the content of national law, while appearing not to act as an appellate tribunal’.9



1.1.1 The Meaning of Possessions According to the ECtHR’s standard formula, ‘the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision’.10

On the basis of an analysis of the case law, it can be said in general terms that the ECtHR developed an economic value approach to the notion of possessions. Accordingly, the ECtHR usually relies on the existence of one of the following elements: economic interest,11 pecuniary interest,12 pecuniary right,13 economic value,14 asset,15 legitimate expectations to obtain the enjoyment of property rights,16 claims with a sufficient basis in national law or that are sufficiently 9

T. Allen, ‘The Autonomous Meaning of ‘Possessions’ under the European Convention on Human Rights’, in E. Cook, Modern Studies in Property Law, 6 vols. (Oxford and Portland, OR: Hart Publishing, 2003), vol II, p. 62.

10 11

 E x plurimis, App. No. 33202/96, Beyeler v. Italy [2000] ECtHR [G.C.] para. 100.

See, for instance, App. No. 48939/99, Öneryıldız v. Turkey [2002] ECtHR. The Court considered that the dwelling built by the applicant and his residence there with his family represented a substantial economic interest that amounted to a possession within the meaning of Article P1-1.

12

See, for instance, App. No. 63252/00, Păduraru v. Romania [2005] ECtHR. The Court affirmed that the applicant’s interest in having his flats returned after they had been unlawfully nationalised was a pecuniary interest subject to the protection of Article P1-1.

13

See, for instance, App. No. 13898/02, Dumanovski v. The former Yugoslav Republic of Macedonia [2006] ECtHR. The Court stated that ‘the right to unemployment benefits, in so far as provided for in the applicable legislation, is a pecuniary right within the meaning of Article 1 of Protocol No.1’.

14

See, for instance, App. No. 38003/04, Boyajyan v. Armenia [2011] ECtHR. According to the Court, ‘securities having an economic value can be regarded as ‘possessions’’.

15

See, for instance, App. No. 8543/79; 8674/79; 8675/79; 8685/79, Van Marle and others. v. The Netherlands [1986] ECtHR. The Court stated that the applicants’ clientele ‘had in many respects the nature of a private right and constituted an asset and, hence, a possession within the meaning of the first sentence of Article 1’.

16

See, for instance, App. No. 1513/03, Draon v. France [2005] ECtHR [G.C.]; App. No. 11810/03 Maurice v. France [2005] ECtHR [G.C.]. The Court clarified that the legitimate expectation doctrine cannot come into play in the absence of an ‘asset’ falling within the ambit of Article P1-1. Thus a legitimate expectation does not in itself constitute a proprietary interest, but it relates to the way in which a property right claim qualifying as an asset would be treated under domestic law.

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established by a final and enforceable judicial decision,17 including public law claims to social security benefit,18 or pecuniary interests originating in administrative licences19 or in the act of a public authority.20 It is worth noting that the Court extends, by means of the legitimate expectations doctrine, the protection offered by Article P1-1 to the interests inherent in a commercial or professional activity. Finally, although the text of Article P1-1 is silent about intellectual property, the ECommHR and later the ECtHR recognised that some economic interests in intangible knowledge should be protected by means of Article P1-1.21 Dealing with an application concerning the registration of a trademark, the Grand Chamber extended the material scope of Article P1-1 to cover the economic interests linked to such an application and affirmed expressly that ‘Article 1 of Protocol No. 1 is applicable to intellectual property as such’.22

17

See, for instance, App. No. 44912/98, Kopecky v. Slovaquie [2004] ECtHR [G.C.]. The Court clarified that ‘where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it’.

18

See, for instance, App. No. 6268/08, Andrle v. The Czech Republic [2011] ECtHR. The Court stated that ‘[i]f a Contracting State has legislation in force providing for the payment as of right of a welfare benefit—whether conditional or not on the prior payment of contributions—that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements’.

19

Licences do not, in themselves, constitute possession. However, the ECtHR regards the economic interests of a business as possessions. Thus, where a licence is vital for the continuation of a business, the revocation of it is an interference with the applicant’s possessions. See, for instance, App. No. 10873/84, Tre Traktörer Aktiebolag v. Sweden [1989] ECtHR, concerning the revocation of a licence to sell alcoholic beverages. More recently, see App. No. 38433/09, Centro Europa 7 S.r.l. and Di Stefano v. Italy [2012] ECtHR [G.C.], concerning the interests associated with exploiting a licence for nationwide terrestrial television broadcasting.

20

See, for instance, App. No. 34044/02, Depalle v. France [2010] ECtHR [G.C.], concerning French authorities’ refusal to authorize the applicant to continue occupying the maritime public land on which stood a house he owned since 1960. The Court stated that ‘the time that elapsed had the effect of vesting in the applicant a proprietary interest in peaceful enjoyment of the house that was sufficiently established and weighty to amount to a ‘possession’ within the meaning of the rule expressed in the first sentence of Article 1 of Protocol No. 1’. Another example is App. No. 44277/98, Stretch v. The United Kingdom [2006] ECtHR. The ECtHR held that where a lease granted by a local authority had purported to grant an option to renew, the expectation of renewal amounted to a possession.

21

App. No. 12633/87, Smith Kline & French Lab. Ltd v. The Netherlands [1990] ECommHR (dec.), (patent); App. No. 24563/94, Aral, Tekin and Aral v. Turkey [1998] ECommHR (dec.), (copyright). For a survey of the case law, see L.R. Helfer, ‘The New Innovation Frontier? Intellectual Property and the European Court of Human Rights’ (2008) 49 Harvard International Law Journal 1-52.

22

App. No. 73049/01, Anheuser-Busch Inc. v. Portugal [2007] ECtHR [G.C.] para. 72.

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Subsequently, the ECtHR reiterated that Article P1-1 is applicable to intellectual property in the Balan case,23 which concerned a complaint about the refusal of the national courts to compensate the applicant for the use of one of his photographs that had been used without his agreement as a background for national identity cards. The ECtHR found that there had been a violation of Article P1-1 because the public interest at issue could had been served without violating the applicant’s rights.



1.2 The Personal Scope

Since the Convention is a regional response to the atrocities committed in Europe during the Second World War, it seems obvious to refer prima facie to Article P1-1 as a protection of individual properties, namely ‘those belongings which are tied to [individual] being’.24 The focus of this interpretation is thus natural persons: human beings. Nevertheless, Article P1-1 explicitly extends the protection of the right of property to legal persons as well. However, since Article P1-1 was drafted by a special Committee of the Consultative Assembly and the Collected Editions of the Travaux Préparatoires does not provide a detailed account of the work of the Committee, there is no clue about the debate on the inclusion of the reference to legal persons in Article P1-1. But the Travaux Préparatoires show that some delegates – especially the British ones – concerned by the difficulties that such approach could have posed for plans to nationalize industries, opposed the protection of companies’ property rights under the ECHR. Aside from the question of whether there would be an essential contradiction in extending the entitlement of human rights to legal persons,25 the inclusion of companies under Convention protection has been maintained on the strength of the values of European liberalism that underpin the Convention. Both individual and legal persons must, in order to bring a case before the ECtHR, claim to be the victim of a violation. This means that the contested measure must directly or, in certain circumstances, indirectly affect the peaceful enjoyment of their possessions. As for legal persons, their complaints under Article P1-1 usually concern limitations on business practices as well as regulatory interference affecting corporate assets. In those cases, to allocate the right to locus standi, the ECtHR takes into consideration the scope of the contested measure to decide whether it affects the property rights of the company or of the shareholders. 23

App. No. 19247/03, Balan v. Moldova [2008] ECtHR.

24

Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, cit., vol. II, p. 72.

25

On this issue, see M. Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection (Oxford: Oxford University Press, 2006), pp. 26-32; A. Grear, ‘Challenging Corporate ‘Humanity’: Legal Disembodiment, Embodiment and Human Rights’ (2007) 7(3) Human Rights Law Review 511-543; T.R.G. Van Banning, The Human Right to Property (Antwerp, Oxford, and New York: Intersentia, 2002), pp. 170-171.

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One of the leading cases is Agrotexim and others v. Greece,26 wherein the ECtHR declared inadmissible ratione personae the application of six limited companies that held a combined shareholding of more than 50 per cent in another limited company (Fix Brewery) and that complained of unlawful interference with their rights under Article P1-1 due to an urban plan impacting Fix Brewery’s property. The Court, disclaiming the opinion of the Commission,27 established that ‘the piercing of the “corporate veil” or the disregarding of a company’s legal personality will be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or – in the event of liquidation – through its liquidators’.28

Accordingly, the Court rejected the argument that since Fix Brewery was under a special regime of effective State control due to liquidation procedures, it could not be reasonably expected to apply to the ECHR’s institutions against the State. The ECtHR found that, although it was in the process of liquidation, the company had not ceased to exist as a legal person and therefore its liquidators could have applied to the ECommHR to defend their rights. According to the ECtHR, there was no evidence to suggest that, at the time the application at issue was lodged, it was not possible as a matter of fact or of law for Fix Brewery to apply through its liquidators; therefore, the Court was not prepared to pierce the corporate veil. Then, in the Olczak case,29 the ECtHR clarified that, to establish whether a company has standing to allege breaches of Convention rights, it is of paramount importance to distinguish the shareholders’ interests from those of the company. In the case at issue, the applicant, a natural person, complained of a breach of Article P1-1 due to measures taken in order to protect a public company from insolvency that entailed the cancellation of his shares. The Court observed that ‘whenever a shareholder’s interests are harmed by a measure directed at the company, it is up to the latter to take appropriate action. An act infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected. Such responsibility arises only if the act complained of 26 27

App. No. 14807/89, Agrotexim and others v. Greece [1995] ECtHR.

In this case, the ECommHR gave up the principle worked out in the previous case law, according to which the possibility for a shareholder to claim to be a victim of measures affecting a company might be recognized on the sole basis of whether he is a majority shareholder. In the Agrotexim case, the ECommHR considered that other elements may also be relevant in view of the circumstances of each particular case. In the case in question, the Commission found decisive the fact that Fix Brewery was under effective State control, and, thus, it could not be reasonably expected to apply against the State.

28

 A grotexim, para. 66.

29

App. No. 30417/96, Olczak v. Poland [2002] ECtHR (dec.).

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is aimed at the rights of the shareholder as such [...] , or if the company has been wound up’.30

Thus, considering that the measures complained of by the applicant directly affected his rights as an owner, the ECtHR found the application receivable ratione personae. Lastly, one limit to a legal person’s capacity to stand before the ECtHR derives from Article 34 ECHR insofar as it states that a legal entity may submit an application to the Court provided that it is a non-governmental organization. As the Court pointed out, the ratio behind this principle is to prevent a contracting State from acting both as an applicant and as a respondent party before the Court.31 To determine whether a given legal person is a governmental organization or not, the Court takes into account various aspects, including the legal status of the company and the rights deriving from that status, the nature of the activity it carries out and the context in which it is carried out, the degree of its independence from political authorities, and so forth. The fact that a company is owned by the State, or that it performs a public service mission in the general interest, does not imply per se that the legal person in question is a governmental organization insofar as the company does not exercise governmental powers, is not established for public-administration purposes, and is completely independent of the State.32



1.3 The Temporal Scope

The Convention and its Protocols have no retroactive effect, they apply only to facts that are subsequent to the date of their entry into force with regard to the State in question. Nevertheless, the concept of a continuing violation or continuing situation,33 which indicates a lasting situation alleged to be contrary to the Convention, allows the Court to condemn violations that relate to events that happened before the Convention became applicable for the respondent State.34 30 31

 Ibidem, para. 59.

See, App. No. 40998/98, Islamic Republic of Iran Shipping Lines v. Turkey [2007] ECtHR, especially para. 81.

32

See, for instance, App. No. 13092/87 and 13984/88, The Holy Monasteries v. Greece [1994] ECtHR; App. No. 53984/00, Radio France and others v. France [2003] ECtHR (dec.); App. No. 22603/02, UkraineTyumen v. Ukraine [2007] ECtHR.

33

A. Van Pachtenbeke and Y. Haeck, ‘From De Becker to Varnava: The State of Continuing Situations in the Strasbourg Case Law’ (2010) 1 European Human Rights Law Review 47-58 at 48; the authors point out that, even though the Court uses the two expressions indifferently, the phrase continuing situation is to be preferred since the ECtHR uses it to decide the admissibility of a case before establishing whether the facts amount to an effective violation.

34

On the concept of continuing violation, also see A. Buyse, ‘A Lifeline in Time-Non-Retroacivity and Continuing Violations under the ECHR’ (2006) 75(1) Nordic Journal of International Law 63-88; L.G.

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The ECtHR defines a ‘continuing situation’ as a ‘state of affairs which operates by continuous activities by or on the part of the State to render the applicant victims’.35 This reflects the approach developed within general international law. It thus includes situations deriving from a State’s act having continuing character or from a series of actions or omissions by the State in respect to the same case or separate cases. With respect to Article P1-1, the Court referred to the continuing violation doctrine in a series of cases against Turkey and concerning continuous denial of access to property. Starting with the Loizidou case,36 the Court classified as a continuing violation a situation of continuous refusal, since the 1974 coup d’état, of Turkish authorities to allow Greek Cypriots to accede their possessions in northern Cyprus. The ECtHR considered it immaterial that Turkey accepted the jurisdiction of the Court only in 1990, and declared itself competent to decide the case on the merit. However, finding a continuing violation to overcome the ratione temporis competence of the Court has been contested within the ECtHR itself.37 In particular, Judge Feyyaz Gölcüklü, considering the accession of countries previously governed by communist regimes to the ECHR, warned the Court of the consequences of applying the doctrine of continuing violation to cases in which the critical event at the root of the interference is an historical political event. He pointed out that to apply the concept of continuing violation to such cases, ‘the Strasbourg institutions could be confronted with the difficult task of reconsidering historical events many years after their occurrence and applying Convention standards retrospectively’.38 Anyway, the ECtHR does not resort to the concept of continuing violation to introduce disputes over the confiscation of private properties without compensation that occurred during the socialist era, because the taking of property is in principle an instantaneous act.39 Loucaides, The European Convention on Human Rights: Collected Essays (Leiden and Boston: Martinus Nijhoff, 2007), pp. 17-33. 35

App. No. 27824/95, Posti and Rahko v. Finland [2002] ECtHR, para. 39; App. No. 34393/03, Pitalev v. Russia [2009] ECtHR, para. 34.

36

App. No. 15318/89, Loizidou v. Turkey [1996] ECtHR [G.C.]. For further cases, see App. No. 25781/94, Cyprus v. Turkey [2001] ECtHR; App. No. 16219/90, Demades v. Turkey [2003] ECtHR; App. No. 46347/99, Xenides-Arestis v. Turkey [2005] ECtHR.

37

It is worthy of noting that Greek-Cypriot owners claimed only pecuniary damages for loss of use of their properties, not compensation for the loss of the properties themselves, of which they continued to be regarded as the legal owners. Due to the lack of international recognition of the Turkish Republic of Northern Cyprus (TRNC), its acts, such as its attempted confiscation of Greek Cypriot properties, were legally invalid. Thus, the facts did not amount to a taking of property, which is –as said- an instantaneous act.

38

 L oizidou, dissenting opinion of Judge Gölcüklü.

39

Kopecky, supra footnote 17, para. 35.

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Moreover, to consider nationalisations under a socialist regime as continuing violations would amount to an affirmation of a general positive obligation of the States, under Article P1-1, to restore past injustices. Nevertheless, it being understood that Article P1-1 cannot be interpreted as granting any right of restitution of property that has been unlawfully or unjustly taken under totalitarian regimes, the Convention requirement applies to national restitution laws. 40 With regard to the latter, there is thus room for applying the notion of continuing violation. For instance, the ECtHR has made indirect statements on deprivation of property falling out of its ratione temporis jurisdiction in cases concerning pre-ratification legislations that provided arrangements for restitution or compensation of property confiscated under the socialist regime that had never been implemented. In these cases, the Court found a continuing violation by reason of the States’ failure to implement the applicant’s entitlement to compensatory property. 41 The reasoning of the Court was based upon the consideration that even though the deprivation of property is an instantaneous act, the applicant’s claims established in restitution legislation constitute an actual possession, whenever the legislation in question is still in force. Finally, the ECtHR applies the continuing violation doctrine to cases concerning unlawful confiscation. These cases will be considered below, in the section dealing with de facto expropriation.



1.4 The Three Rules for the Protection of the Right of Property

The essential object of Article P1-1 is to protect the individual against unjustified interference with the peaceful enjoyment of his possessions. As the Court has held since the Sporrong and Lönnroth case, 42 Article P1-1 comprises three distinct rules. The first rule, which is expressed in the first sentence, is of a general nature and lays down the principle of peaceful enjoyment of property. The second rule, set out in the second sentence, covers deprivation of possessions and subjects it to certain conditions. The third rule, laid down in 40

For an analysis of situations concerning acquired rights to property which do fall within the scope of Art. P1-1, see M. Karadjova, ‘Property Restitution in Eastern Europe: Domestic and International Human Rights Law Responses’ (2004) 29 Review of Central and East European Law 325-363; J.-F. Flauss, ‘Les mutations de propriété dans le Pays d’Europe centrale et orientale (PECO) à l’épreuve de l’article 1 du Protocole additionnel’, in J. Velu, La mise en œuvre interne de la Convention européenne des droits de l’homme (Brussels: Bruylant, 1994), pp. 199-232; S. Marcus Helmons, Le droit de propriété en Europe occidentale et orientale, mutations et limites d’un droit fondamental, (Brussels: Académie Louvain la Neuve et Bruylant, 1995); L. Garlicki, ‘L’application de l’article 1er du Protocole n° 1 de la Convention européenne des droits de l`homme dans l’Europe centrale et orientale : problèmes de transition’, in H. Vandenberghe (ed.), Propriété et droits de l’homme / Property and Human Rights, cit., pp. 129-161.

41

App. No. 31443/96, Broniowski v. Poland [2004] ECtHR [G.C.].

42

App. No. 7151/75 and 7152/75, Sporrong and Lönnroth v. Sweden [1982] ECtHR, para. 61.

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the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest by enforcing legislation they deem necessary for the purpose. The Court went on to explain that the three rules interact constantly. The general rule is beyond the sphere of application of the other two rules, which should therefore be construed in the light of the general principle. 43



1.4.1 The First Rule: The Guarantee to the Peaceful Enjoyment of Possessions

There are no defined criteria establishing a priori the applicability of the first rule. In the Sporrong case, the Court assigned a subsidiary role to it, stating that it had to be established whether the second and third rules are applicable, before considering whether the first rule has been followed. 44 Subsequently, the Court found a device in the first rule to avoid classification of cases that could easily be classified under both the second and third rule. For instance, in the Dangeville case, where the applicant maintained that the national court decision dismissing his claim for the restitution of tax money amounted to a deprivation of property, the ECtHR acknowledged that an interference with the exercise of claims against the State may constitute a deprivation of possessions. Nevertheless, considering that the claim in question concerned the payment of a tax, the Court observed that ‘a more natural approach might be to examine the complaints from the angle of a control of the use of property in the general interest “to secure the payment of taxes”, which falls within the rule in the second paragraph of Article 1’. 45 Finally, the Court applied the first rule, and it stressed that ‘the two rules are not “distinct” in the sense of being unconnected, are only concerned with particular instances of interference with the right to peaceful enjoyment of property and must, accordingly, be construed in the light of the principle enunciated in the first sentence of the first paragraph’. 46 The cases decided by the ECtHR under the first rule have increased over the years. As has been pointed out, the vagueness of the rule allows the ECtHR a wide room for manoeuvre in defining its scope. Finally, recently the Court upheld a reading of the first rule that establishes it as the source of the States’ positive obligations to protect the rights of natural or legal persons. The ECtHR referred for the first time to the doctrine of positive obligations to settle a dispute under Article P1-1 in the controversial Öneryıldız case. 47 This dispute concerned a methane explosion that caused the deaths of thirty-nine people, as well as the destruction of ten homes. Emphasizing the concern for effectiveness that underpins the doctrine of positive obligations, the 43

App. No. 8793/79, James and others v. The United Kingdom [1986] ECtHR, para. 37.

44 45

 Sporrong, supra footnote 42, para. 61.

App. No. 36677/97, S.A. Dangeville v. France [2002] ECtHR, para. 51.

46 47

 Ibidem.

Ö neryıldız, supra footnote 11.

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ECtHR considered that ‘the real and effective exercise of that right [i.e. Article P1-1] does not depend merely on the State’s duty not to interfere, but may require positive measures of protection’. 48 To limit the scope of such an obligation, the Court clarified that ‘this obligation will inevitably arise, inter alia, where there is a direct link between the measures which an applicant may legitimately expect from the authorities and his enjoyment of his possessions’. 49 Then in the Budayeva case, which concerned damages caused by the weather, the ECtHR made it clear that ‘allegations of a failure on the part of the State to take positive action in order to protect private property should be examined in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention’.50



1.4.1.1 The Positive Obligation to Protect Property in the Sphere of Dangerous Activities and Weather Hazard

States have not only a regulatory duty but a supervisory one as well, since the ECtHR’s control aims to find out, on one hand, whether a regulatory framework has been in place and, on the other, whether it has been observed. Accordingly, a State can be held responsible if proper legislation has been adopted but not implemented, if there is a causal link between the State’s negligence in supervising the implementation of the law and the interference with a Convention right. The Öneryıldız case is illustrative because the breach of both duties was at stake. The facts concerned the destruction of a slum erected by the applicant in breach of Turkish planning regulations. The slum was the applicant’s home, and its destruction was due to an explosion in a nearby waste disposal site. Turkish law allowed the destruction of the dwelling at any time, but the municipal authorities had not taken any measure against the applicant, who lived undisturbed in the shelter with his family. Moreover, the authorities knew of the risk of an explosion at the rubbish dump and of the danger to the slum’s inhabitants, but they did not take any practical step to avoid the risks or the actual destruction of the applicant’s house. The ECtHR held in the first instance, and then on appeal to the Grand Chamber, that the national authorities’ failure to take all the measures necessary to avoid the risk of a methane explosion amounted ‘not to ‘interference’ but to the breach of a positive obligation, since the State officials and authorities did not do everything within their power to protect the applicant’s proprietary interests’.51 In this first formulation, the positive obligation under Article P1-1 to protect property exposed to dangerous activities is quite demanding. It imposes more 48

 Ibidem, para. 145.

49 50

 Ibidem.

App. No. 15339/02, 21166/02, 20058/02, 11673/02, and 15343/02, Budayeva and others v. Russia [2008] ECtHR, para. 172.

51

App. No. 48939/99, Öneryıldız v. Turkey [2004] ECtHR [G.C.] para. 135.

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than a reasonable standard of regulation and supervision, and requires the States to do everything within their power to protect the applicant’s possessions. The Court followed a more cautious approach in the Budayeva case.52 The dispute concerned a mudslide that devastated the town where the applicants lived. They complained about the omission by the authorities of ensuring the functioning of the mud-defence and warning infrastructures and about the inadequacy of the compensation granted to them for the loss of their flats. The ECtHR considered that ‘the positive obligation on the State to protect private property from natural disasters cannot be construed as binding the State to compensate the full market value of destroyed property’.53 Furthermore, it held that ‘the damage in its entirety could not be unequivocally attributed to State negligence, and the alleged negligence was no more than an aggravating factor contributing to the damage caused by natural forces’.54 Finally, the Court concluded that ‘the conditions under which victims were granted compensation for possessions lost in the mudslide did not impose a disproportionate burden on the applicants’.55 Thus, there had been no violation of Article P1-1. In cases in which only the protection of property is at stake, a lower standard of diligence is thus imposed on States when performing their regulatory and supervisory duties. On the contrary, when both Article 2 (Right to Life) and Article P1-1 apply, the highest standard required by Article 2 prevails and governs the application of the two articles. From a critical point of view, this approach opens the way for the development of a jurisprudence in which similar cases may be handled differently, depending on the applicability of Article 2. In the Öneryıldız case, the Court tried to justify the fact that they did not draw any distinction between positive obligations under Article 2 and those under Article P1-1 in a questionable way. The Court stressed the fact that when an activity – such as the treatment of waste – is regulated and controlled by the State, the existence of such regulation brings accidents in this sphere within the scope of the State’s responsibility; however, natural disasters, which are beyond human control, do not call for the same extent of State involvement. This seems to be a valid argument to distinguish between a State’s positive obligations as regards the protection of property from weather hazards and those obligations incumbent on the States in the sphere of man-made dangerous activities. However, this does not persuasively explain why property rights deserve greater or lesser protection in regard to the applicability of Article 2 of the Convention. Finally, the Court affirmed that a reasonable standard of diligence applies in every case involving natural disasters. This means that in such cases the States have, under Article 2, a duty to do everything within the authorities’ power to protect human lives from natural calamities and, under Article P1-1, the obliga52 53

Budayeva, supra footnote 50.

 Ibidem, para. 182.

54 55

 Ibidem, para. 182.

 Ibidem, para. 184.

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tion to protect the right to the peaceful enjoyment of possessions by doing what is reasonable in the circumstances.56 To conclude, a remark must be made with regards to the causation issue. As mentioned above, the existence of a prejudice is not sufficient to establish the State’s liability. There must be a direct link between the State’s negligence and the prejudice to the applicant’s property. Where the causal link between the State’s failure to act and the interference with the applicant’s property rights is not self-evident, it is for the applicant to prove the causation. It is worth recalling that, in adjudicating violations of the Convention, the ECtHR plays a subsidiary role because Article 35 (Admissibility Criteria) prevents the ECtHR from deciding a case if domestic remedies are not exhausted. This means that in all probability the causation issue has already been investigated at the national level, because domestic authorities have the duty to conduct an effective investigation into the facts that would amount to an infringement of property rights, and to afford effective remedies to the victims. The ECtHR ruled on this obligation of the States in the Novoseletskiy case.57 The applicant was granted a permit of unlimited duration by his employer authorising him to occupy an apartment in the city where he worked. Subsequently, the applicant resigned from the employment and moved to another city. A few months later, the apartment was given to another employee. Relying on Article P1-1, the applicant submitted that, as a result of the unlawful entry into his apartment during his absence, his belongings had been stolen. The ECtHR noted that, while the prosecution service had meticulously verified the existence of the applicant’s possessions that went lost, it had not shown the same attention to his complaints or to the responsibility of the authorities and persons implicated by them. That being so, it considered that the State had not maintained a fair balance between the competing interests and had failed to conduct an efficient and impartial investigation into the disappearance of the applicant’s possessions such as that which could have reasonably been expected. The Court accordingly held unanimously that there had been a violation of Article P1-1. In sum, to comply with Convention requirements, the investigation must be thorough, prompt, impartial, and detailed; the ECtHR’s subsequent review is limited to the examination of the effectiveness and consistency of the investigation.



1.4.1.2 The Positive Obligation to Compensate for Decrease in Property’s Value

Private parties’ activities or State’s regulation can negatively affect proprietary interests by depriving the owner of part of the value of the property. Dealing with environmental nuisance, the ECtHR recognized that activities which could cause environmental pollution may seriously affect the 56 57

 Ibidem, para. 173.

App. No. 47148/99, Novoseletskiy v. Ukraine [2005] ECtHR.

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value of land and buildings, and they could thus amount to a partial taking of property.58 Nonetheless, the Court is quite reticent in applying this principle. Below, I will present some cases in which some applicants complained of a decrease of the value of their properties to show the different approaches developed by the ECtHR. In the Ouzounoglou case,59 the applicant complained of the expropriation of a part of the land on which her house stood in order to build a new road. The applicant’s action for redress before the national courts had been unsuccessful. Her claims before the national courts were based on the Greek legislative provision governing expropriation, according to which, if part of a property is expropriated and the part remaining in the owner’s possession suffers substantial depreciation in value or is rendered unusable, the sum awarded to the applicant shall also include a determination of the special compensation for that part. On this basis, the applicant asked to be compensated for the impossibility of continuing to live in her house when the new road was opened to traffic. The Court of Cassation dismissed the applicant’s appeal holding that the house had become unsuitable for habitation due to the nature of the public work in question, and not because of the expropriation in itself. The ECtHR recognized that the nature of the work directly contributed to the substantial depreciation of the value of the remaining land and rejected the Government’s argument according to which the property under consideration had not suffered any loss in value as it could still be used as a business premise. The Court applied the rule concerning the control of the use of property by maintaining that the facts amounted to a restriction of the free disposal of the applicant’s right of use. It then held that by failing to compensate the applicant for the loss of value of the non-expropriated part of land, there had been no fair balancing of the individual and the general interests involved.60 Finally, in an obiter dictum in the Anonymos Touristiki case,61 the Court clarified the unstated obligation, which had remained implicit in the above mentioned cases: namely, that States are under an obligation to compensate all excessive interferences with property.62 The facts of the case may be 58

See S. Praduroux, ‘The European Convention on Human Rights and Environmental Nuisances’ (2008) 2 European Review of Private Law 269-281.

59

App. No. 32730/03, Ouzounoglou v. Greece [2005] ECtHR.

60

See also App. No. 2531/02, Athanasiou and others v. Greece [2006] ECtHR; App. No. 25774/05, Bistrović v. Croatia [2007] ECtHR.

61

App. No. 35332/05, Anonymos Touristiki Etairia Xenodocheia Kritis v. Greece [2008] ECtHR.

62

Para. 45 reads: ‘le but légitime de protéger le patrimoine naturel ou culturel, aussi important soit-il, ne dispense pas l`État de son obligation d`indemniser les intéressés lorsque l`atteinte à leur droit de propriété est excessive’. In the case of Housing Association of War Disabled and Victims of War of Attica and Others v. Greece, concerning a prohibition on building houses on the land belonging to the applicants which would have been legitimate, the Court already observed that it was ‘particularly struck by the fact that, although the very substance of the applicants’ ownership [had] been affected [...] the applicants were not successful in obtaining compensation under Greek law’ (App. No. 35859/02 [2006] ECtHR, para. 39).

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summarised as follows. The applicant purchased a plot of ground with a view to constructing a hotel complex, but some years later, the area in question was classified as fully protected, and all constructions were therefore prohibited. After various unsuccessful attempts to obtain a renewal of the initial planning permission, the applicant requested to the Ministry of Culture to proceed with the expropriation of its property. This request was rejected and the action to set aside that rejection was dismissed by the Supreme Administrative Council on the grounds that the plot of land was outside the urban area. The ECtHR analysed the prohibition on building as a limitation of the right to dispose of the property freely, which fell under the third rule of P1-1. After considering that the circumstances did not release the State from its obligation to compensate the applicant for an excessive interference with its right to property, the Court proceeded to the balance test. The Court considered that the domestic authorities had upset the fair balance that should be struck between the public interest and the private interest of the applicant. The Supreme Administrative Council’s decision denying the expropriation of the land was marked by particular severity, since it failed to take into account the specific features of each plot of land outside the urban area and because of the subsequent conduct of the national authorities. However, it seems likely that the Court would have ruled otherwise if the national authorities had denied the expropriation, and yet awarded compensation to the applicant. On the other hand, to state that a fair balance was not struck because of the lack of compensation would have challenged the fleeting boundary between regulation and deprivation of property and required the ECtHR to speak to the difficult question of when an interference can be said to be excessive. Future case law will clarify the still uncertain scope of the obligation to compensation in cases falling outside the ambit of the second rule. At present, a first restriction derives from the dictum of the Court according to which Article P1-1 ‘does not give raise to any positive obligation for the State to maintain the value not only of deposits, but also of claims or any other asset. It does not require from States to apply “an inflation-rate-compatible” default interest rate to private claims. The Convention cannot be seen as imposing on States obligations concerning their economic policy in dealing with the effects of inflation and other economic phenomena’.63

This means that applicants cannot, in principle, ask for compensation for losses caused by inflation.

63

App. No. 35221/97, O.N. v. Bulgaria [2000] ECtHR (dec.) para. 2. Also see App. No. 17211/03, Dolneanu v. Moldova [2007] ECtHR, para. 31; App. No. 69315/01, Sukhorubchenko v. Russia [2005] ECtHR; App. No. 52854/99, Ryabykh v. Russia [2003] ECtHR.

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1.4.1.3 The Positive Obligation to Adjudicate Property Litigation between Private Persons

From the requirement of previous exhaustion of domestic remedies together with the corresponding obligation of the States to provide for appropriate proceedings under Article 13 ECHR (Right to an Effective Remedy) and the rule of law principle, it follows that States have a general obligation to make available appropriate procedural instruments to secure the effective enjoyment of the substantive rights proclaimed by the Convention. Moreover, other positive obligations are imposed on States by way of general safeguards of a fair trial under Article 6 ECHR. Wolfgang Strasser explains the protection for procedural rights as complementary to those for substantive rights. When the latter are at stake, the Court’s review aims to assess whether the results of the proceedings brought about an interference with them; however, when Articles 6 or 13 or both are invoked, the Court will analyze whether the organization and conduct of the proceedings comply with the requirement imposed by the respective Articles.64 Yet this does not prevent the Court from considering procedural aspects in assessing whether there has been a violation of a substantive right. As for Article P1-1, for example, the unreasonable length of national administrative or judicial proceedings can lead to a violation of Article 6, because it is contrary to the reasonabletime requirement, and of Article P1-1, because legal uncertainty restricting the owners’ capacity to access or dispose of his property may cause a breach of the proportionality principle. Likewise, the refusal to execute a final court decision concerning property rights may be contrary to the general principle of the rule of law, which concerns all the articles of the Convention, and thus violates both Articles 6 and P1-1. As far as Article 6 is concerned, the ECtHR emphasized that ‘it would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6’.65

64

W. Strasser, ‘The Relationship between Substantive Rights and Procedural Rights Guaranteed by the European Convention on Human Rights’, in F. Matscher and H. Petzold (eds.), Protecting Human Rights: The European Dimension: Studies in Honour of Gérarrd J. Wiarda (Köln: Carl Heymanns Verlag, 1988), p. 595.

65

App. No. 22774/93, Immobiliare Saffi v. Italy [1999] ECtHR, para. 63.

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With regards to Article P1-1, the Court held that ‘combiné avec la première phrase de l’article 1 du Protocole No 1, la prééminence du droit, l’un des principe fondamentaux d’une société démocratique, inhérente à l’ensemble des articles de la Convention, justifie la sanction d’un Etat en raison du refus de celui-ci d’exécuter ou de faire exécuter une décision de justice’.66 The Antonetto case offers an example of interferences with property rights due to the failure to enforce a judgment. The applicant complained about the impossibility of enforcing a domestic court’s decision ordering the demolition of a building that had been illegally built next to her property and that deprived the applicant’s house of view and light.67 The ECtHR considered that the applicant had the value of her house reduced because of the illegal building, and this amounted to an interference falling within the scope of the first rule. Then, as far as the refusal to implement the domestic court decisions had no legal basis, the ECtHR found a breach of Article P1-1 because the legality requirement was not meet. The ECtHR finally explicitly recognized the States’ positive obligation within the meaning of Article P1-1 to enforce the final decisions of national courts in the Bijelić case, which concerned an eviction order issued against a private party.68 Other examples of procedural wrongs that can give rise to substantive violations of Article P1-1 are offered with reference to a lack of investigation or a delay in the payment of compensation. Dealing with these cases, the ECtHR sometimes examines the complaint in relation to Articles 6 and P1-1 separately, while in others it finds it unnecessary to apply both of them. Up until now, the case law has shown no objective criteria governing the choice between the two approaches. Finally, the ECtHR included the due process requirement in Article P1-1 by means of the doctrine of positive obligations. In the Sovtransavto case, the Court affirmed specifically that ‘States are [by virtue of Article P1-1] under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any dispute between private persons’.69 It can be pointed out that there is a prima facie incompatibility between the subsidiarity principle and the positive obligation to adjudicate effectively and fairly disputes between private persons. On one hand, and in compliance with its subsidiary nature, the ECtHR generally will not review national law and court judgments; on the other hand, in order to supervise the obligation ‘to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons’, the Court has to inquire into national 66 67

App. No. 62740/00, Matheus v. France [2005] ECtHR, para. 70.

App. No. 15918/89, Antonetto v. Italy [2000] ECtHR.

68

App. No. 11890/05, Bijelić v. Montenegro and Serbia [2009] ECtHR.

69

App. No. 48553/99, Sovtransavto v. Ukraine [2002] ECtHR, para. 96.

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proceedings. In particular, the ECtHR takes into account the existing judicial procedures and the manner in which the proceedings have been conducted. The effectiveness and fairness of domestic proceedings are evaluated on the basis of the proportionality principle. Thus, not every procedural shortcoming constitutes interference. As far as the blame of the ECtHR is limited to the manner in which the proceedings were conducted, it can be said that the Court does not act as a court of final instance. On the contrary, when it pushes its analysis one step further, to criticize the rationale of a domestic court’s decision, its role becomes more questionable. For instance, in the Anonymos Touristiki case mentioned above, the ECtHR did not limit its review to the result of the relevant national proceedings, but analysed the ratio decidendi underlying the Supreme Administrative Council’s decision and held it wrong, then considered it as a material element of the violation of Article P1-1.70 The Vontas case is even more illustrative of the same trend.71 The facts concerned a dispute between the applicants and the State about the ownership of a plot of land on the island of Spetses in Greece. According to the domestic courts, the contested land had become land for public use, and thus part of the municipality’s property by virtue of a rule of ByzantineRoman law (vetustas), which had been applied in Greece before the introduction of the Civil Code in 1946. The applicants complained that the result of the proceedings before the Greek courts amounted to a deprivation of possessions contrary to Article P1-1. The ECtHR stressed that it was ‘not its task to examine whether the domestic courts ha[d] rightfully applied domestic law, but it must examine whether the manner in which that law was applied to the applicants in the particular circumstances would violate the protection offered to them under Article 1 of Protocol No. 1 to the Convention’,72 and it then carried out a close scrutiny of ‘the way in which the domestic courts assessed the elements submitted before them when applying the vetustas rule’.73 Not satisfied with the assessment of evidence made by domestic courts, the ECtHR found that their action was ‘contrary to the principle of legal certainty and has led to injustice’.74 Therefore, the ECtHR concluded that ‘the Greek courts’ interpretation of domestic law led to an interference with the applicants’ rights which was not justified for any of the reasons set out in Article 1 of Protocol No. 1’.75 Generally speaking, the ECtHR allows itself to intervene whenever ‘a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary, discriminatory or, more broadly, incon70 71

 Anonymos, supra footnote 61, especially para. 49.

App. No. 43588/06, Vontas and others v. Greece [2009] ECtHR.

72 73

74 75

 Ibidem, para. 39.

 Ibidem, para. 41.  Ibidem, para. 41.

 Ibidem, para. 42.

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sistent with the principles underlying the Convention’.76 This means not only that domestic law must provide for adequate procedural instruments to secure the effective protection of Convention rights, but also that domestic courts must apply standards in conformity with ECHR law. The Mustafa case illustrates this point. The ECtHR was asked to decide whether an interference with the freedom to receive information deriving from a tenancy agreement, which prohibited the installation of outdoor antennae, complied with the requirements of Article 10 (Freedom of expression). The applicants were forced to move from their rented flat because they refused to remove a satellite they had installed to receive television programmes in Arabic and Farsi from their country of origin, Iraq. The prohibition on installing outdoor antennae without specific permission was expressly mentioned in the tenancy agreement. The ECtHR stated that the responsibility of the respondent State within the meaning of Article 1 of the Convention for any resultant breach of Article 10 may be engaged as far as the applicants’ eviction was the result of the domestic court’s decision. It thus took into consideration the interpretation of the tenancy agreement given by the Swedish Court of Appeal in light of the national Constitution and legislation. The ECtHR maintained that it ‘has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10’.77 The ECtHR considered, in particular, the special importance for the applicants, as immigrant family, of receiving television programs of all kinds from their native country to keep in touch with the language and culture of their country of origin. The Court stressed that there were other means for the applicants to receive these or similar programmes. In particular, the landlord could have installed broadband and Internet access or other alternative means to give the tenants in the building the possibility to receive those television programs. On the other hand, the Court accepted that the prohibition against installing satellite antennae came up to safety concerns because a landlord can be held responsible for damage caused by a falling dish. However, the evidence produced by the applicants before the domestic courts showed that the installation did not pose any real safety threat in the case at issue. The ECtHR considered that the physical and aesthetic damages reported by the landlord were insignificant. On the other hand, it noted that the Swedish appellate court gave no real importance to the applicant’s freedom of information. All things considered, the ECtHR affirmed that the national court ‘in weighing the interests involved, failed to apply standards in conformity with Article 10’. Moreover, the ECtHR considered that the eviction of the applicants from their home was a disproportionate measure with regard to the aim pursued. All things considered, the ECtHR stated that the defendant State failed in its positive obligation to protect the applicants’ right to freedom of information. 76 77

App. No. 23883/06, Khurshid Mustafa and Tarzibachi v. Sweden [2008] ECtHR, para. 33.

 Ibidem, para. 43.

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In other words, affirming its competence to review a national court’s interpretation of private legal acts in light of ECHR requirements, the ECtHR places on States an implicit obligation to object to private acts that amount to an arbitrary or disproportionate interference with ECHR’s rights, without openly affirming the direct applicability of the Convention.



1.4.2 The Second Rule: the Guarantee against Arbitrary Deprivation of Possessions

Since the essential object of Article P1-1 is to protect individuals against unjustified interference by the State with the peaceful enjoyment of their possessions and since the deprivation of property is the most important restriction to be imposed by the authorities, the rule under discussion – at least as represented by the drafters of the Convention – is at the very core of Article P1-1. For a far reaching protection, the ECtHR has adopted an extensive interpretation of the concept of deprivation of property, the essence of which is the permanent extinction of the rights of the owner. Dealing with cases concerning property confiscations in criminal proceedings, the Court clarified that temporary seizures do not constitute deprivation of property.78 Then, it applied the principle to all provisional transfers of property.79 The text of Article P1-1 is silent about the compensation requirement.80 In the James case, the ECtHR explicitly rejected the possibility of extending to nationals the scope of the international law rule requiring prompt, adequate, and effective compensation for deprivations of the property of foreigners. Explaining the reference to ‘general principles of international law’ contained in the second rule enshrined in Article P1-1, the Court emphasized that ‘Examination of the travaux préparatoires reveals that the express reference to a right to compensation contained in earlier drafts of Article 1 (P1-1) was excluded, notably in the face of opposition on the part of the United Kingdom and other States. The mention of the general principles of international law was subsequently included and was the subject of several statements to the effect that they protected only foreigners. Thus, when the German Government stated that they could accept the text provided that it was explicitly recognised that those princi78

See, for example, App. No. 5493/72 Handyside v. The United Kingdom [1976] ECtHR; App. No. 12956/87, Raimondo v. Italy [1994] ECtHR; App. No. 18465/91, Air Canada v. The United Kingdom [1995] ECtHR.

79

See, for example, App. No. 9616/81, Erkenr and Hofauer v. Austria [1987] ECtHR and App. No. 11796/85, Wiesinger v. Austria [1991] ECtHR, both of which concern the provisional transfer of land as part of agricultural land consolidation proceedings.

80

The issue was debated during the drafting of the Convention. Some delegates suggested the formula of a ‘fair compensation which shall be fixed in advance’ while others suggested ‘compensation as shall be determined in accordance with the conditions provided for by the law’. See Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, cit., vol. VII, pp. 194 and 222-224.

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ples involved the obligation to pay compensation in the event of expropriation, the Swedish delegation pointed out that those principles only applied to relations between a State and non-nationals. And it was then agreed, at the request of the German and Belgian delegations, that “the general principles of international law, in their present connotation, entailed the obligation to pay compensation to nonnationals in cases of expropriation”. Above all, in their Resolution (52) 1 of 19 March 1952 approving the text of the Protocol and opening it for signature, the Committee of Ministers expressly stated that, “as regards Article 1 (P1-1), the general principles of international law in their present connotation entail the obligation to pay compensation to non-nationals in cases of expropriation” (emphasis added). Having regard to the negotiating history as a whole, the Court considers that this Resolution must be taken as a clear indication that the reference to the general principles of international law was not intended to extend to nationals’.81

However, a few months later, the ECtHR affirmed the obligation to pay compensation, which ‘derives from an implicit condition in Article 1 of Protocol No. 1 (P1-1) read as a whole’.82 More precisely, referring to a general principle to pay compensation common to the legal systems of the Contracting States, the ECtHR stated that as far as Article P1-1 was concerned, ‘the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle’.83 It then allowed itself to review compensation terms under domestic law, stating that they are ‘material to the assessment of whether a fair balance has been struck between the various interests at stake and, notably, whether or not a disproportionate burden has been imposed on the person who has been deprived of his possessions’.84 As a general rule, the ECtHR has consistently affirmed that a total lack of compensation can be considered justifiable under Article P1-1 only in certain exceptional circumstances; in all other cases, compensation must be reasonably related to the value of the property. The ECtHR enjoys broad discretion as to what constitutes exceptional circumstances. To date, the Jahn case is the only case in which the ECtHR found a deprivation of property despite a lack of compensation consistent with the Convention.85 The applicants’ claim concerned agricultural lands that had been subjected to certain restrictions on disposal following the land reform implemented in the 81

 James, supra footnote 43, para. 64.

82

App. No. 9006/80, 9262, 9263, 9265, 9266, 9313 and 9405/81, Lithgow and others v. The United Kingdom [1986] ECtHR, para. 109. The case concerned the nationalisation of certain industries in accordance with the Aircraft and Shipbuilding Industries Act of 1977. The applicants complained that the amount of compensation they received was grossly inadequate and discriminatory. The ECtHR held that there had been no breach of Article P1-1 taken alone or in conjunction with Article 14.

83

 Lithgow, supra, para. 120.

84 85

 Ibidem.

App. No. 46720/99, 72203/01, and 72552/01, Jahn and others v. Germany [2005] ECtHR [G.C.].

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Soviet Occupied Zone of Germany in 1945. On March 16, 1990, the Modrow Law came into force in the German Democratic Republic (GDR). This Act lifted the restrictions on the disposal of land that had been applicable until then, whereupon those in possession of the land acquired full title to it. After German reunification, however, some heirs – including the applicants – of persons who had acquired land under the land reform were compelled to reassign their property to the tax authorities without compensation, because they had not in fact satisfied the conditions of the Modrow Law (i.e., they were not carrying on an activity in the agriculture, forestry, or food-industry sectors). According to the applicants, the obligation imposed on them to reassign their land without compensation had infringed their right to the peaceful enjoyment of their possessions guaranteed by Article P1-1. The question for the ECtHR was essentially whether the special circumstances of the case could be regarded as exceptional circumstances justifying the lack of any compensation. Overruling the Chamber’s decision, the Grand Chamber concluded that ‘in the unique context of German reunification, the lack of any compensation does not upset the ‘fair balance’ that has to be struck between the protection of property and the requirements of the general interest’,86 and that Article P1-1 had therefore not been violated. As for the principle that compensation must be reasonably related to the value of property, the market value provides a general criterion of reference that can however be overridden when so required by the circumstances of the case. Accordingly, legitimate objectives of public interest, such as pursued by measures of economic reform or measures designed to achieve greater social justice, or to safeguard a country’s historical or cultural heritage, may call for less reimbursement than the full market value. Even in these cases, however, the ECtHR has the last word as to whether compensation terms are adequate. For instance, in the Kozacıoglu case87 the ECtHR found a violation of Article P1-1 because of the low amount of compensation awarded to the applicant for the expropriation 86

 Ibidem, para. 117. Commenting on the exceptional nature of the circumstances, the Grand Chamber considered three decisive factors (see para. 116). First, the Court took account of the circumstances of the enactment of the Modrow Law, which had been passed by a parliament that had not been democratically elected during a transitional period between two regimes that had inevitably been marked by upheavals and uncertainties; in those conditions, even if the applicants had acquired a formal property title, they could not be sure that their legal position would be maintained. Second, the Court considered the huge task facing the German legislature when dealing with, among other things, numerous complex issues relating to property rights during the transition to a democratic, market-economy regime. Third, the Court held that the reasons for passing the second Property Rights Amendment Act were also decisive factors to be considered. In particular, the FRG parliament could not be deemed to have been unreasonable in considering that it had a duty to correct the effects of the Modrow Law for reasons of social justice. In that connection, the Grand Chamber noted that the second Property Rights Amendment Act did not only benefit the State but in some cases also provided for the redistribution of land to farmers.

87

App. No. 2334/03, Kozacıog˘ lu v. Turkey [2009] ECtHR [G.C.].

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of a building classified as a cultural asset. Considering that the issue at the heart of the case was the fact that, when calculating the expropriation compensation for a listed property, it was impossible under Turkish law to take into account that part of a property’s value that results from its rarity and its architectural and historical features, the ECtHR stated that, in determining the compensation for the expropriation of a listed building, the property’s specific features must be, to a reasonable degree, taken into account. Finally, the adequacy of compensation, where due, would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as an unreasonable delay. Even a short delay in payment can upset the fair balance principle in certain circumstances, such as in a severe inflationary period that increases the financial loss for the applicant.88

1.4.2.1 De Facto Expropriation A deprivation of possessions that takes place in the absence of a formal expropriation is prima facie contrary to the Convention because not lawful (i.e., not ‘provided for by law’ as required by the text of Article P1-1). It is thus incumbent on the ECtHR to look behind the appearances and investigate the realities of the situation complained of to ascertain whether a taking of possession without acquiring title occurred.89 The ECtHR came, for the first time, to such a conclusion in the Papamichalopoulos v. Greece case.90 The facts concerned the occupation, during the regime of the colonels, of the land owned by the applicants for use as a naval base and holiday resort for officers. Following the restoration of democracy in the country, Greek authorities recognised the applicants’ title to the disputed land but ordered that other land of equal value be given to the applicants. However, it turned out that the chosen land could not be used for their purpose. The ECtHR found that the permanent physical occupation of the applicants’ land without formal transfer of ownership amounted to a de facto expropriation incompatible with Article P1-1. Accordingly, it stated that there had been and there continued to be a breach of Article P1-1 because of the failure of the attempts made to remedy the situation. As a rule, the ECtHR finds a de facto expropriation when the applicant has lost all ability to dispose of his own possessions notwithstanding that he holds a valid property title on these possessions. Situations amounting to de facto expropriation can thus arise in two hypotheses: first, when – as in the Papamichalopoulos case – the applicant was definitively prevented from using and disposing of his possessions without losing his title; and, second, when the applicant recovered the title but not the enjoyment of his possessions. 88

See, ex plurimis, App. No. 19263/92, Akkus v. Turkey [1997] ECtHR.

89

 Sporrong, supra footnote 42, para. 63.

90

App. No. 14556/89, Papamichalopoulos and others v. Greece [1995] ECtHR, para. 36.

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The latter hypothesis occurs, for example, in cases in which national courts found that an expropriation had been unlawful and, accordingly, that the applicant’s proprietary title was still valid, but they refuse to order the restitution of the property. The process of restoration of property rights in Western Europe provided a favourable background for such cases. In the Zwierzynski case, for instance, the applicant complained of a violation of Article P1-1 due to the impossibility of recovering the possession of the property of which he became the owner retrospectively because of a decision that declared null and void the expropriation procedure that occurred in 1952. The ECtHR found an infringement of the applicant’s right to peaceful enjoyment of his possessions within the meaning of the second rule of Article P1-1 since it could not ‘discern in the present case any genuine “public interest” that would justify a deprivation of possessions’.91 Finally, the ECtHR affirmed that de facto expropriation can concern incorporeal goods as well. In the Olczak case, for instance, the ECtHR stated that although ‘the applicant was not technically divested of his shares, their economic value was sufficiently reduced to amount to a deprivation of property’.92 De facto expropriation represented a structural problem in Italy. Since the late 1970s in order to solve disputes concerning the occupancy of a private property by public authorities for a longer time than allowed by law, the Court of Cassation has developed the rule that enabled public authorities to acquire the ownership of land on which a public work had been built without following the expropriation proceeding laid down by law. This controversial solution, known in Italy as accessione invertita, or occupazione acquisitiva, or occupazione usurpativa, and renamed constructive expropriation or indirect expropriation by the ECtHR, has been declared contrary to the Convention. Confronted with cases in which the landowner had lost de facto use of the land, as local authorities took possession of it and a public works project had been undertaken, the Italian courts had to decide whether the landowner lost title to the land as a consequence of the mere fact that the work had been carried out. On this point, the Court of Cassation developed three different lines of case law.93 To reconcile them, the joint panels of the Court held that public interests 91

App. No. 34049/96, Zwierzynski v. Poland [2001] ECtHR, para. 72. Also see App. No. 57001/00, Străin and others v. Romania [2005] ECtHR. It must be stressed that only the existence of a decision by a national court recognising the applicant’s title to property gives way to the ECtHR’s jurisdiction on these cases relating to nationalisations and expropriations if they occurred before the entry into force of the Convention in the States concerned.

92 93

 O lczak, supra footnote 29, para. 71.

Under one line of case law, the owner of land that had been occupied by the authorities did not lose ownership after the completion of public works. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession (see, for instance, Court of Cassation judgments nos. 2341 of 17 April 1982; 4741 of 23 July 1981; 6452 of 13 December 1980; and 6308 of 3 December 1980). Under a second line, the landowner did not lose title to the land

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prevailed over those of the private owner.94 Accordingly, the latter was entitled to compensation under tort law; whereas the public authorities acquired title to the land from the outset, without the need for expropriation proceedings, if, after the land was occupied, and irrespective of whether such possession was lawful, public works were completed there. However, this principle was also subject to exceptions,95 which led to a situation of legal uncertainty contrary to the requirement of lawfulness. Moreover, the ECtHR blamed the practice of constructive expropriation as it ‘enabled the authorities to profit from an unlawful occupation of land’ since ‘the authorities were able to take possession of the land in breach of the rules governing expropriation in due form, and, inter alia, without compensation being made available at the same time to the applicants’.96 To Belvedere Alberghiera and Carbonara and Ventura cases of 30 May 200097 followed a eleven-year line of decisions against Italy dealing with the systemic problem of constructive expropriation. During these years, the ECtHR changed its criteria for calculation of just compensation. In the Belvedere Alberghiera and Carbonara and Ventura cases, considering that restitution of the land was not possible, the Court awarded pecuniary damages which took into consideration the current value of the land in relation to the property market value on the date of its judgment. In addition, it sought to compensate losses that would not have been covered by payment of that amount, by taking account of the potential development of the land in question, calculated, where appropriate, on the basis of the construction costs of the buildings erected by the State.98 Starting with the Guiso-Gallisay case of 22 December 2009, the ECtHR took notice of the developments occurring in the domestic legislation and of the fact that the national courts responded positively to the Court’s case law in the sphere of the right of property. Accordingly, it held it appropriate to adopt a new approach. The ECtHR therefore no longer awards damages by taking into and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, Court of Cassation judgment no. 5679 of 22 October 1980). Finally, under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it was altered irreversibly, that is to say on completion of the public works. He was entitled to claim damages (see, Court of Cassation judgment no. 3243 of 8 June 1979). 94 95

Court of Cassation, joint panels, 26 February 1983, judgment No. 1464, (1983) Foro italiano I, 626.

In particular, the principle did not apply where the declaration that the building works were in the public interest was deemed to have been invalid from the outset, or had been annulled by the administrative courts. In such cases, the owner retained title to the land and could claim restitutio in integrum, or could seek damages. See, for instance, Court of Cassation, 4 March 1997, No. 1907; 16 July 1997, (1997) Corriere giuridico 413 No. 6515; 1 January 1998, No. 148, (1998) Rivista giuridica dell’edilizia I, 646.

96 97

App. No. 58858/00, Guiso-Gallisay v. Italy [2005] ECtHR, para. 94.

App. No. 31524/96, Belvedere Alberghiera S.r.l. v. Italy [2000] ECtHR; App. No. 24638/94, Carbonara and Ventura v. Italy [2000] ECtHR.

98

App. No. 31524/96, Belvedere Alberghiera S.r.l. v. Italy [2003] ECtHR; App. No. 24638/94, Carbonara and Ventura v. Italy [2003] ECtHR.

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consideration the value of public works built on expropriated land. Compensation should rather correspond to the full value of the land at the time of the loss of property, as established in court-ordered expert reports drawn up during the domestic proceedings. Then, once the amount obtained at the domestic level is deducted, that amount will have to be converted to its current value to offset the effects of inflation. Moreover, interest will have to be paid on this amount so as to offset, at least in part, the long period during which the applicants have been deprived of the land.99 As illustrated below (Ch. 6, §1.1), the ECtHR’s case law led to a revirement of the Italian Constitutional Court’s position on the constitutionality of constructive expropriation.



1.4.3 The Third Rule: The Guarantee against Arbitrary Restrictions to the Right of Property

Recognising that Contracting States have the power to regulate the use of property in accordance with the general interest, the second paragraph of P1-1 seems to perform the function of limiting the jurisdictional competence of the Strasbourg Court. This interpretation is supported, on one hand, by the wording of the paragraph itself and, on the other, by the very first judgments of the ECtHR. Contrary to other Convention provisions allowing interferences with the proclaimed rights only if necessary in a democratic society, Article P1-1 leaves more discretion to States in interfering with the right to the peaceful enjoyment of one’s possessions by affirming the right of a State to enforce laws as it deems necessary to control the use of property. Accordingly, when interpreting Article P1-1§2, the ECtHR affirmed that ‘this paragraph sets the Contracting States up as sole judges of the “necessity” for an interference. Consequently, the Court must restrict itself to supervising the lawfulness and the purpose of the restriction in question’.100 In other words, the ECtHR allowed itself to review only whether regulations on the use of property had some basis in domestic law and pursued a general interest. Moreover, the legitimacy of the States’ policy choices regarding the regulation of the use of property could hardly be questioned considering that the ECtHR adopted a notion of general interest that was extensive enough to include the protection of the rights of others. Nevertheless, considering further case law in which the second paragraph has operated as an autonomous rule, the ECtHR has indeed taken control of national law regulating private property regimes,101 levying taxes, and imposing penalties. Moreover, by introducing the fair balance standard within Article P1-1, 99

App. No. 58858/00, Guiso-Gallisay v. Italy [2009] ECtHR [G.C.], para. 105.

100 101

Handyside, supra footnote 78, para. 62; Marckx, supra footnote 5, para. 64.

A lthough the text of the Article refers only to the use of property, regulations concerning the right to dispose of property fall within the ambit of the third rule as well.

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the Court allowed itself to extend the scope of its review to the fairness lato sensu of domestic legislations. For over fifteen years, the ECtHR’s control under the third rule of Article P1-1 was limited to the lawfulness and the purpose of the contested restrictions, and the reference to the fair balance to be struck between private and public interests was more an empty formula than a concrete analysis of the consequences of the actual measure of the situation of the applicant. Subsequently, the Court has gradually developed a more extensive supervision by means of a more stringent application of the fair balance principle. In the Chassagnou judgment,102 the Court found, for the first time, a breach of Article P1-1 on the grounds that a measure which constituted a regulation of property did not satisfy the fair balance requirement. Here, the ECtHR considered that the statutory obligation to transfer hunting rights for landowners opposed to hunting constituted a disproportionate burden which was not justified under the second paragraph of Article P1-1. Finally, as the reference to ‘control the use’ related to the purpose of interferences, the purpose of domestic legislation should thus be decisive for ruling on the applicability of the third rule. However, the ECtHR failed to establish a clear jurisprudence on this point. As a result, the purpose of the interference as well as the fact that the applicant retains ownership title are relevant but not conclusive factors for the ECtHR to decide whether an interference comes within the ambit of the rule under discussion.



1.5 Remedies

In compliance with the general principle of international law, the primary obligation to provide reparation lies with the State; the ECtHR thus plays a subsidiary role. Article 41 ECHR states that ‘the Court shall, if necessary, afford just satisfaction to the injured party’.103 Accordingly, it is up to the ECtHR ‘to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied’.104 This means, inter alia, that claims for future losses, as well as for punitive damages, fall outside the scope of Article 41.105 The term just satisfaction takes on a broad meaning within the ECtHR case law. It can consist of declaratory judgments, awards of pecuniary and non102 103

App. No. 25088/94, 28331, and 28443/95, Chassagnou and others v. France [1999] ECtHR.

For a description of the Court’s policy on deciding damages in connection with violations of Article P1-1, see C. Pettiti, ‘La réparation des atteintes au droit de propriété: l’application de l’article 41 de la CEDH’, in IDHAE, La protection du droit de propriété par la Cour européenne des droits de l’homme (Brussels: Bruylant, 2005), pp. 97-120; E. Myjer, ‘Article 1 Protocol 1 and the Entitlement of Just Satisfaction’, in H. Vandenberghe (ed.), Propriété et droits de l’homme / Property and Human Rights, cit., pp. 99-128.

104 105

App. No. 34462/97, Amato Gauci v. Malta [2009] ECtHR, para. 80.

On the refusal to recognize such kind of damages, see, for instance, App. No. 16064-16073/90, Varnava and others v. Turkey [2009] ECtHR [G.C.], where the Court rejected the applicants request for daily fines to be imposed on the Government until it complied with the Court’s judgments.

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pecuniary damages, costs and expenses, and restitution. In general terms, the Court stated that ‘from a Convention perspective, property is a material commodity which can be valued and compensated for in monetary terms’ and that ‘an exchange of property may be regarded as an acceptable form of redress’.106 However, in cases in which there is a breach of the principle of legality, the ECtHR expressly follows the principles elaborated by the International Court of Justice, which are based on the idea that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.107 On the contrary, in cases in which the violation of Article P1-1 is grounded on the breach of the fair balance principle, the Court makes extensive use of the discretion granted to it by Article 41, and, in order to distinguish cases where a declaration of violation is adequate to afford just satisfaction from those requiring economic compensation, it refers to equity rather than seeking objective criteria. Failing to establish a clear and consistent approach to just satisfaction claims, the ECtHR is exposed to criticism.108 Another criticism that has to do with how the ECtHR applies Article 41 concerns the attitude of the Court toward neglecting the deterrent role of the just satisfaction, thus failing, as maintained by Judge Giovanni Bonello, ‘both its judicial and its pedagogical functions’.109 In this respect it can be observed that the use of restitution as a form of reparation within Article P1-1 is rare. In the Papamichalopoulos case, the ECtHR first recalled that the Contracting States were in principle free to choose the means whereby they comply with a judgment in which it has found a breach and then stated that ‘if the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow—or allows only partial—reparation to be made for the consequences of the breach, Article 50 [now Art. 41] empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.’110 106

App. No. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, Takis Demopoulos and others v. Turkey [2010] ECtHR [G.C.] (dec.), para. 115.

107

T he quotation is from the Chorzów case, which was decided on September 13, 1928 by the International Court of Justice and quoted by the ECtHR in the Papamichalopoulos case, supra footnote 90, para. 36.

108

See, A. Buyse, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law’ (2008) 68 Heidelberg Journal of International Law 129-153.

109

Dissenting opinion of Judge Bonello attached to App. No. 31195/96, Nikolova v. Bulgaria [1999] ECtHR; App. No. 25642/94, Aquilina v. Malta [1999] ECtHR; App. No. 25644/94, T.W. v. Malta [1999] ECtHR. See also the remarks made by A.R. Çoban, Protection of Property Rights within the European Convention on Human Rights (Aldershot: Ashgate, 2004), pp. 231-232.

110

Papamichalopoulos, supra footnote 90, para. 34.

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Since then, however, the ECtHR has indicated restitution as a preferred remedy only in a few cases. Moreover, in all those cases, the Court took care also to indicate the amount to be paid by the respondent State if it failed, within three months,111 to return the property to the applicant.112 This approach has been strongly criticised by Loukis Loucaides, since it does not require the States to prove that restitution is materially or legally impossible, but offers to ‘a government that has been found responsible for the relevant violation the possibility of “buying off” the breach of the Convention and keeping the benefit(s) of its illegal act, for example the illegal confiscation of movable or immovable property. In fact, one can say that the formula in questions open the way for the illegal expropriation of land in breach of the requirements and conditions prescribed for compulsory acquisitions of immovable property, such as proof of the necessity of the acquisition for a specific purpose in the public interest’.113

New directions on restitution are to be found in the decision of the Grand Chamber in the Demopoulos case.114 In this decision the ECtHR declared the inadmissibility of the application of seventeen Cypriot citizens. The applicants had been displaced by the 1974 Turkish invasion and occupation of north Cyprus, and subsequently denied the use of their properties and access to their homes. The ruling of the Grand Chamber broke with fourteen years of consistent case law against Turkey, inaugurated by the above mentioned Loizidou case. Essentially, the ECtHR found that the procedure enacted by the Turkish Republic of Northern Cyprus to provide compensation to displaced Greek Cypriots for their properties in Northern Cyprus may constitute an effective domestic remedy that has to be exhausted before lodging a complaint at the ECtHR. Considering that the interpretation and application of the Convention must take into account concrete factual circumstances, the ECtHR analysed the existing situation. In particular, the Court pointed out that ‘At the present point, many decades after the loss of possession by the then owners, property has in many cases changed hands, by gift, succession or otherwise; those claiming title may have never seen, or ever used the property in question. The issue arises to what extent the notion of legal title, and the expectation of enjoying the full benefits of that title, is realistic in practice. The losses thus claimed become increasingly speculative and hypothetical. There has, it may be recalled, always been a strong legal and factual link between ownership and posses111

According to the Rules of the Court, the ECtHR of its own motion will set a time-limit for any payment of monetary award under Article 41. Such a time-limit will normally be three months from the date on which its judgment becomes final and binding.

112

App. No. 28342/95, Brumarescu v. Romania [2001] ECtHR [G.C.]; Strain, supra footnote 91; App. No. 38222/02, Ramadhi and 5 others v. Albania [2007] ECtHR.

113

L.G. Loucaides, ‘Reparation for Violations of Human Rights under the European Convention and Restitutio in Integrum’ [2008] European Human Rights Law Review 182-192 at 186.

114

Takis, supra footnote 106.

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sion [...] and it must be recognised that with the passage of time the holding of a title may be emptied of any practical consequences’.115

Taking into consideration the fact that thirty-five years elapsed after the applicants, or their predecessors in title, left their property, the Court maintained that ‘it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility’.116 Thus, according to the Court it is not within its ‘task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention’.117 Stressing the need for a factual link between ownership and property, the ECtHR weakens the protection afforded to applicants who can provide evidence of ownership but who never had actual possession of the concerned property.



2 The Relationship between Article P1-1 and other Articles of the ECHR

Some other articles of the Convention in addition to Article P1-1 are often invoked by individuals asking protection for property rights. For instance, in the Chassagnou case, the applicants also complained that they were obliged to tolerate hunting on their land although they themselves were opposed to hunting, which constituted an infringement of their freedom of thought and conscience protected by Article 9. However, the ECtHR did not rule on this point because it had already found a violation of Article P1-1 and considered it unnecessary to conduct a separate examination of the case from the standpoint of Article 9 ECHR. Generally speaking, the ECtHR failed to establish a clear and consistent approach to applications in which individuals allege the violation of more than one article of the Convention. In some cases, the Court examines the complaints under one article and then declares it unnecessary to consider the same claims under the other invoked articles whereas, in other cases, it rules on all questions. Apart from Article 41, which is always invoked by applicants seeking economic compensation,118 Articles 6, 8, 13, and 14 of the ECHR can, in some 115

Ibidem, para. 111 [emphasis added].

116 117

Ibidem, para. 116.

Ibidem.

118

E . Myjer, ‘Article 1 Protocol 1 and the Entitlement of Just Satisfaction’, in H. Vandenberghe (ed.), Propriété et droits de l’homme / Property and Human Rights, cit., p. 128; Myjer wonders provocatively ‘how many applicants would be left if the Court stopped awarding just satisfaction’.

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cases, be used to provide additional procedural and substantive guarantee for property rights.



2.1 Article P1-1 and the Right to a Fair Trial (Art. 6)

The ECtHR explicitly stated that the right of property is a civil right within the meaning of Article 6 Paragraph 1 and that ‘the autonomous concept of ‘possessions’ in Article 1 of Protocol No. 1 should be interpreted in a way which is consistent with the concept of pecuniary rights under Article 6 § 1’.119 Therefore, any litigation that affects a property right has to respect the guarantees of a fair trial as set down in Article 6 ECHR. Accordingly, in the Zander case, in which the applicants complained of the impossibility of having a judicial review of the Government’s decision concerning the renewal of a permit to dump and treat household and industrial waste on a land adjacent to their property, the ECtHR maintained that Article 6 was applicable by considering that ‘the applicants’ claim was directly concerned with their ability to use the water in their well for drinking purposes. This ability was one facet of their right as owners of the land on which it was situated’.120 On the other hand, as above observed, the ECtHR included the due process requirement in Article P1-1 by means of the doctrine of positive obligations. The Court explicitly stated that, although Article P1-1 contains no explicit procedural requirements, domestic law proceedings ‘must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by Article P1-1’.121 Moreover, the Court stressed that ‘even in cases involving private litigation the State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law’.122 The ECtHR typically finds a violation of both Articles P1-1 and 6 ECHR in cases in which the unreasonable length of national administrative or judicial procedures caused a protracted situation of uncertainty of the status of the applicant’s property.123 119

App. No. 65731/01 and 65900/01, Stec and Others v. The United Kingdom [2005] ECtHR [G.C.] (dec.) para. 49.

120 121

App. No. 142828/88, Zander v. Sweden [1993] ECtHR, para. 27.

App. No. 20082/02, Zehentner v. Austria [2009] ECtHR, para. 73. The case concerned the judicial sale of the apartment of the applicant, who lacked legal capacity, in order to pay debts she owed. The Court found that there had been a violation of both Article 8 and P1-1 because of the lack of sufficient procedural guarantees and considered that no separate issue arose under Article 6§1.

122 123

Ibidem, para. 75.

Sporrong, supra footnote 42; App. No. 19133/91, Scollo v. Italy [1995] ECtHR; App. No. 15777/89, Matos e Silva Lda. and others v. Portugal [1996] ECtHR.

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2.2 Article P1-1 and the Right to an Effective Remedy (Art. 13)

Article 13 requires the Contracting States to provide effective remedies to enforce the rights protected by the Convention. As the ECtHR consistently affirms, the effect of Article 13 is ‘to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief’.124 According to the Court, the scope of the States’ obligation under Article 13 varies depending on the nature of the complaint at issue; even so, the minimum requirement imposed by the article under discussion may be found in the effectiveness, in practice as well as in law, of the remedy under national law. As for the difference in the nature of the interests protected by Articles 13 and P1-1, the ECtHR observed that ‘the former affords a procedural safeguard, namely the ‘right to an effective remedy,’ whereas the procedural requirement inherent in the latter is ancillary to the wider purpose of ensuring respect for the right to the peaceful enjoyment of one’s possessions’.125 Considering thus the difference in purpose of the safeguards afforded by the two articles, it would be appropriate for the Court to examine the same facts under both, as it did, for instance, in the Iatridis case.126 In this case, the applicant complained of the impossibility of regaining possession of a cinema from which he was evicted although the eviction order had been quashed. The ECtHR first found a violation of Article P1-1 considering that the eviction order had been quashed, which rendered the State’s interference unlawful. Then, it stated that the remedy afforded by national law for challenging an eviction order could not be said to be effective within the meaning of Article 13 since, even if such an application was successful, the return of the property in question was at the relevant State authorities’ discretion and depended on their willingness. Accordingly, the ECtHR declared that there had been a violation of Article 13. In other cases, the ECtHR has found a violation of Article 13 based on the consideration that the applicant was not afforded an effective remedy under national law for his complaint under Article P1-1, which was a relevant factor in determining the proportionality of the interference with the applicant’s right to the peaceful enjoyment of his possessions.127



2.3 Article P1-1 and the Right to Respect for Private and Family Life (Art. 8)

Article 8 guarantees respect for private and family life, home, and correspondence. Given the dynamic interpretation adopted by the ECtHR, 124 125

App. No. 18274/04, Borzhonov v. Russia [2009] ECtHR, para. 32.

Ibidem, para. 50.

126 127

App. No. 31107/96, Iatridis v. Greece [1999] ECtHR [G.C.].

See, for instance, Borzhonov, supra footnote 124, para. 32, which concerned the seizure and retention of the applicant’s property in the course of criminal proceedings against him.

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the current scope of this article is particularly wide and partly overlapping with those of Article P1-1. Since the Marckx case, the ECtHR has considered that ‘family life does not include only social, moral or cultural relations, for example in the sphere of children’s education; it also comprises interests of a material kind’128 such as the right of succession between children and parents, and between grandchildren and grandparents. On the other hand, vested hereditary rights are protected also by Article P1-1 because of their economic nature.129 Moreover, the ECtHR recognised that ‘there may be a significant overlap between the concept of “home” and that of “property” under Article 1 of Protocol No. 1, a home may be found to exist even where the applicant has no right or interest in real property[...]. Conversely, an individual may have a property right in a particular building or land, within the meaning of Article 1 of Protocol No. 1, without having sufficient ties with it for it to constitute a home under Article 8’.130

Before the ECtHR, the ECommHR already noticed such an interaction between Articles 8 and P1-1 in a case of the compulsory purchase of property that involved the applicant’s home. Comparing the text of the first paragraph of Article P1-1 and the second paragraph of Article 8, the Commission pinpointed a close resemblance between the requirement for a measure interfering with the protected rights, since both Articles require that the competent authorities strike a fair balance between the rights of the individuals and the interests of the community.131 Nonetheless, the Court stated that when it is asked to decide on interference falling within domestic housing policies, it applies a different standard of review to decide on the legitimacy of the interference. In particular, under Article P1-1 the Court ‘will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation’, whereas ‘where general social and economic policy considerations [arise] in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant’.132



2.4 Article P1-1 and the Prohibition of Discrimination (Art. 14)

For Article 14 ECHR to apply, the situation complained of must fall within the scope of a right proclaimed by the Convention. Generally speak128

Marckx, supra footnote 5, para. 52.

129

See App. No. 8695/79, Inze v. Austria [1987] ECtHR; App. No. 34406/97, Mazurek v. France [2000] ECtHR.

130 131

App. No. 72118/01, Khamidov v. Russia [2007] ECtHR, para. 128.

App. No. 10825/84, Howard v. The United Kingdom [1985] ECommHR.

132

App. No. 66746/01, Connors v. The United Kingdom [2004] ECtHR, para. 82.

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ing, the ECtHR has been willing to broaden the scope of the Convention rights for the purpose of Article 14.133 In particular, the Court affirmed that ‘[t]he prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide’.134 In reference to Article P1-1, the ECtHR relies on Article 14 to extend the scope of property rights to social security matters. According to a well-established case law, social rights such as old age pensions and other social allowances are to be regarded as falling within the scope of Article P1-1 because of their pecuniary nature. Starting with the Gaygusuz case, the ECtHR has developed a substantial case law against unequal treatment as regards the awarding of social benefits or advantages. In the landmark case of Gaygusuz, the applicant complained that he was refused emergency assistance, in the form of a social welfare payment based on contributions, on the grounds that he did not have Austrian nationality. The Court stated that ‘the right to emergency assistance – in so far as provided for in the applicable legislation – [was] a pecuniary right for the purposes of Article 1 of Protocol No. 1’.135 Then, it found that the distinction of treatment on the grounds of nationality was unjustified and discriminatory and, therefore, amounted to a breach of Article 14 taken in conjunction with Article P1-1. Subsequently, in the Koua Poirrez case, the ECtHR extended the scope of Article P1-1 to cover non-contributory social welfare payments as well.136 Discrimination need not necessarily be explicit, as was illustrated by the Muñoz Díaz case. The case concerned a claim for a survivor’s pension that was refused to the applicant on the grounds that she and her late husband were not a married couple under Spanish law because they married only according to Roma rites. According to the Spanish constitutional court, the applicant was not a victim of discriminatory treatment since she had chosen not to get married in a statutory or other recognised form whilst being free to do so, as anyone could enter into a civil marriage regardless of ethnic considerations. The ECtHR started its analysis from the domestic case law under which the 133

Judge Bratza asserted expressly that ‘the ‘ambit’ of an Article for this purpose [i.e. the application of Article 14] must be given a significantly wider meaning than the ‘scope’ of the particular rights defined in the Article itself’. See App. No. 17209/02, Zarb Adami v. Malta [2006] ECtHR for the concurring opinion of Judge Bratza, para. 7.

134 135

Stec, supra footnote 119, para. 40.

App. No. 17371/90, Gaygusuz v. Austria [1996] ECtHR, para. 41 (emphasis added).

136

App. No. 40892/98, Koua Poirrez v. France [2003] ECtHR, especially at para. 37. The applicant complained about the French authorities’ refusal to award him a disabled adult’s allowance on the grounds that he was not a French national. The Court considered that the applicant had a pecuniary right for the purposes of Article P1-1 and held that there had been a violation of Article 14 combined with Article P1-1 because it found no objective and reasonable justification for the difference in treatment.

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constitutional court recognised an entitlement to a survivor’s pension even in the absence of marriage, namely in cases where the applicant had believed in good faith in the existence of a marriage that was null and void or could prove exceptional circumstances rendering the celebration of marriage impossible. With regard to those cases, the ECtHR maintained that the applicant’s situation revealed a disproportionate difference in treatment in relation to the treatment of marriages that were believed in good faith to exist. In particular, the ECtHR remarked that ‘the applicant’s particular social and cultural situation were not taken into account in order to assess her good faith’.137 Accordingly, the ECtHR found a violation of Article 14 taken in conjunction with Article P1-1. Finally, within Article 14 ECHR, property is expressly mentioned as grounds that may give rise to a complaint of discrimination. For instance, in the Chassagnou case the Court found a difference in treatment between small and large landowners contrary to the Convention equality principle. The applicants alleged a violation of their rights of property because of a law imposing the compulsory transfer of hunting rights over the land of small landowners to a municipal hunters’ association. After finding a violation of Article P1-1 taken separately,138 the ECtHR observed that ‘it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case’.139 That being the case, the Court analysed whether the discriminatory treatment had objective and reasonable justification. It found that ‘there [was] no objective and reasonable justification for compelling people who [had] no wish to band together to do so, by means of a compulsory transfer, on the sole criterion of the area of the land’.140 The ECtHR observed also that ‘the result of the difference in treatment between large and small landowners [was] to give only the former the right to use their land in accordance with their conscience’.141 All things considered, the Court concluded that the interference at issue amounted to a discrimination on the grounds of property within the meaning of Article 14 of the Convention.



3 The Right to Property within EU Law

The creation of a common market has been the leitmotiv of the evolution and action of the European Communities. From its inception, however, the European Treaty guaranteed that the Community ‘shall in no way prejudice the rules in Member States governing the system of property owner137

App. No. 49151/07, Muñoz Díaz v. Spain [2009] ECtHR, para. 64.

138

See below Chapter 3, § 1.4.

139

App. No. 25088/94, 28331/95, and 28443/95, Chassagnou and others v. France [1999] ECtHR [G.C.] para. 89.

140 141

Ibidem, para. 93.

Ibidem, para. 95.

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ship’. This provision was originally inserted into Article 222 of the EEC Treaty to answer the request of the Community’s founders to guarantee the Member States’ jurisdiction in particularly sensitive matters in order to facilitate the Treaty’s ratification.142 Article 345 TFEU is reproducing this guarantee and thus limits the competence of the EU in the field of property law and protects the States’ power to establish and regulate property rights and, more generally, national economic systems and private and public economic enterprise.143 Despite this provision, some degree of unification of property law seems now to be unavoidable in view of the economic integration.144 Moreover, as the ECJ pointed out, the purpose of Article 345 is not to evade the enforceability of the fundamental rules of the Treaty with regard to national systems of property ownership.145 This means, first, that to some extent the EU has competence to deal with issues involving property rights and, second, that national legislators have to take into account the general principles and interests of the EU in regulating the ways of acquisition and enjoyment of property. Accordingly, insofar as Article 345 TFEU cannot be appealed to by the Member States to justify national measures, which would amount to an obstacle to one of the four EU fundamental freedoms, the Member States’ power to establish their own system of property ownership is restricted. In the Fearon judgment, for instance, the ECJ was confronted with the question of whether Article 65 TFEU prohibited a national rule that required persons entitled to a beneficial interest in a corporate body that owned land to have resided on the land for a certain period of time in 142

H. Smit and P.E. Herzog, The Law of the European Community – A Commentary on the EEC Treaty (New York: Matthew Bender, 1998), vol. V, 6-216.58. The authors point out the link between national systems of property ownership and fundamental values, remarking that the political issue at stake included the possibility to carry out programs of nationalisation of key industries. See also D. Caruso, ‘Private Law and Public Stakes in European Integration: the Case of Property’ (2004) 10(6) European Law Journal 751-765.

143

On the scope of Art. 345 TFEU, and of the corresponding original provision of the EEC Treaty, see R. Quadri, R. Monaco, and A. Trabucchi (eds.), Trattato istitutivo della Comunità Europea: commentario, 4 vols. (Milano: Giuffrè, 1965), vol. III, p. 1618 and following. See also B. Akkermans and E. Ramaekers, ‘Article 345 TFEU (ex Article 295 EC): Its Meanings and Interpretations: The Treaties shall in no way prejudice the Rules in Member States Governing the System of Property Ownership’ (2010) 16(3) European Law Journal 292-314; F. Losada Fraga, T. Juutilainen, K. Havu, and J. Vesala, ‘Property and European Integration: Dimensions of Article 345 TFEU’, Helsinki Legal Studies Research Paper No. 17. Available at SSRN: http://ssrn.com/abstract=2012983.

144

F. Campbell-White, ‘Property Rights: A Forgotten Issue under the Union’, in N.A Neuwhal and A. Rosas (eds.), The European Union and Human Rights (The Hague: Martinus Nijhoff, 1995), p. 249; S. Van Erp, ‘Civil and Common Property Law: Caveat Comparator – The Value of Legal Historical – Comparative Analysis’ (2003) 11(3) European Review of Private Law 394-411; P. Sparkes, European Land Law (Oxford and Portland, OR: Hart, 2007).

145

Case C-302/97, Klaus Konle v. Republik Österreich (C-302/97) [1999] ECR I-3099, at para. 38; Case C-300/01, Doris Salzmann [2003] ECR I-4899, para. 39; Case C-452/01, Margarethe Ospelt and Schlössle Weissenberg Familienstiftung [2003] ECR I-9743, para. 24.

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order to prevent the State from exercising its power of compulsory acquisition of that land. In its written observation, the European Commission argued that the system of compulsory acquisition by public authorities was part of the system of property ownership and that Article 345 TFEU would therefore have justified a negative answer to the question at hand. The ECJ refuted the argument, holding that ‘although Article 222 [345 TFEU] of the Treaty [did] not call in question the Member States’ right to establish a system of compulsory acquisition by public bodies, such a system remain[ed] subject to the fundamental rule of nondiscrimination which underlies the chapter of the Treaty relating to the right of establishment’.146 The reasoning of the ECJ can be applied, in principle, to all cases in which national rules governing the access, or the enjoyment, or the transfer of the ownership of real property are at stake because a national discriminatory regulation of these aspects could, in certain cases, constitute an interference with the freedom of establishment147 and the freedom of movement of capital.148 Finally, Article 345 TFEU may not either ‘be used as a shield by economic operators to avoid application of Articles [101] and [102 TFEU] to their detriment’.149 Such an issue was under dispute in the Masterfoods case, wherein the plaintiff raised the question whether an exclusivity agreement was protected from challenge under Articles 101 and 102 by reason of the provisions of Article 345. The disputed agreement was arranged by a manufacturer of ice-creams that held a dominant position and prohibited the retailers from using their freezer-cabinet – paid for and maintained by the plaintiff – to store ice-creams supplied by third parties. The ECJ did not render a decision on the point because the main proceeding was pending in the CFI. However, the latter broached the question by taking a different perspective without considering Article 345. It put property rights into perspective by referring to the case law according to which ‘the right to property forms part of the general principles of Community law, it is not an absolute right but must be viewed in relation to its social function’,150 thus defining the prohibition of exclusivity agreements in the case in hand as a regulation of the use of property in the public interest.

146 147

Case 182/83, Robert Fearon & Company Limited v. Irish Land Commission [1984] ECR 367, para. 7.

See Case 63/86, Commission of the European Communities v. Italian Republic [1988] ECR 29. Mutatis mutandis, see also Case 305/87, Commission of the European Communities v. Hellenic Republic [1989] ECR 1461.

148

Case C-513/03, Heirs of M.E.A. van Hilten-van der Heijden v. Inspecteur van de Belastingdienst/Particulieren/Ondernemingen buitenland te Heerlen [2006] ECR I-1957.

149

Opinion of Advocate General Cosmas on May 16, 2000 in Case C-344/98, Masterfoods Ltd v. HB Ice Cream Ltd [2000] ECR I-11369, para. 105.

150

Case T-65/98, Van den Bergh Foods Ltd v. Commission of the European Communities [2003], ECR II-4653, para. 170.

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3.1 The Protection of the Right to Property as Judicial Acquis

An infringement of a right of property was alleged by an applicant for the first time in the Nold case in support of the annulment of a Commission decision authorizing new terms of business concerning ruhrkohle coal. The applicant asserted that the decision in hand had negatively affected the profitability of its undertaking, infringing ‘a right akin to a proprietary right’.151 The ECJ however validated the contested decision referring to the social function of property, which allows restrictions on property rights in the public interest to be interpreted in the light of the values and the aims of the EU legal order.152 In the Hauer case, the ECJ subsequently worked out the guidelines for the protection of the right of property within the EU law. In particular, it ruled that ‘the right to property is guaranteed in the Community legal order in accordance with the ideas common to the Constitutions of the Member States, which are also reflected in the first Protocol to the European Convention for the protection of Human Rights’.153 The ECJ made explicit reference to Article 1 of the First Protocol to the ECHR but did not apply it, considering it unsuitable for giving a precise answer to the question at hand, which concerned Community regulation limiting the planting of vines, and found the suitable rule in the common constitutional practice to regulate property rights in accordance with the general interest.154 According to the ECJ reasoning, the common constitutional practice of the nine – at that time – Member States, on one hand, allowed the European legislator to restrict the exercise of the right of property in the context of a common organization of the market and for the purposes of a structural policy, and, on the other hand, conferred to the ECJ the task to control whether the restrictions thus imposed really coincide with the EU general interest and if they are proportionate. In the Hauer case, the ECJ answered positively to both question. The Hauer case went down in EU law history, since it contains two basic statements for the protection of the right of property in the EU: first, that the European legislator can lay the basis for a restrictive regulation of the use of property within the pursuit of the Union’s general interest, and, second, that it is up to the ECJ to control measures restricting the exercise of a property right with the proportionality principle requirements. As for the notion of property, it is interesting to note the relatively small number of cases in which the ECJ dealt with an alleged violation of the right of property and that such interferences with the right concerned derive mainly 151

Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, [1974] ECR 491, para. 12.

152 153

Ibidem, para. 14.

Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, para. 17.

154

Ibidem, para. 20. The ECJ referred in particular to Article 14 (2) of the German Grundgesetz, Article 42 (2) of the Italian Constitution, Article 43.2.1 and Article 43.2.2 of the Irish Constitution.

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from EU regulation of economic activities. Accordingly, commercial logic seems to play an important role in the ECJ’s reasoning on the definition of the scope of the right of property, as shown by the Booker Aquaculture case. The facts concerned the destruction of fish stocks imposed by Council Directive 93/53/EEC, which introduced minimum Community measures for the control of certain fish diseases. The ECJ had to answer the question of whether the destruction of fish without the payment of compensation to the owner constituted a disproportionate and intolerable interference impairing the very substance of the right of property. To assess the proportionality of the measures at issue, the ECJ took into account their urgent nature and the purposes of the directive: namely, to enact control measures as soon as the presence of a disease was suspected in order to prevent the spread of the disease. Moreover, it observed that the measures enabled the owners to restock the affected farms as soon as possible so that ‘the measures referred to [did] not deprive farm owners of the use of their fish farms, but enable[d] them to continue to carry on their activities there’.155 It is to be stressed that the ECJ did not broach the question of whether the fish were a distinct property from the farms, but merely observed that their destruction did not constitute damage. The fish did not have ‘marketable value’156 and the protection afforded to the right of property did not extend to commercial risk.157 This finding is consistent with the ECJ’s jurisprudence, according to which the scope of the right to property does not include ‘commercial interests, the uncertainties of which are part of the very essence of economic activity’,158 such as the maintenance of an advantage that comes from the establishment of the common organization of the market159 or market share held at a time before the establishment of a common organization of a market, which constitutes only a momentary economic position exposed to the risks of changing circumstances.160 This does not, however, preclude that others’ interests or rights may be protected by the right of property. Indeed, the ECJ, like the ECtHR, acknowl155

Joined Cases C-20 and 64/00, Booker Aquaculture and Hydro Seafood [2003] ECR I-7411, para. 80.

156

Notwithstanding this, according to M. Costantino, ‘Il diritto di proprietà tra diritto comunitario e diritto interno’, in M. Comporti, (ed.), La proprietà nella Carta europea dei diritti fondamentali: atti del convegno di studi organizzato presso l’Università degli studi di Siena: Siena 18 – 19 ottobre 2002 (Milano: Giuffrè, 2005), p. 98; from this judgment, it appears that the ECJ only considers things that can be evaluated from an economic standpoint as objects of the right of property.

157

Booker Aquaculture, supra footnote 155, especially para. 83.

158

Joined Cases 154, 205, 206, 226 to 228, 263, and 264/78, 39, 31, 83, and 85/79, SpA Ferriera Valsabbia and others v. Commission of the European Communities [1980] ECR 907, para. 89; Nold, supra footnote 151, para. 14.

159

Case 59/83, SA Biovilac NV v. European Economic Community [1984] ECR 4057, para. 23.

160

Case C-280/93, Federal Republic of Germany v. Council of the European Union [1994] ECR I-4973, para. 79; Case C-210/03, The Queen, on the application of: Swedish Match AB and Swedish Match UK Ltd v. Secretary of State for Health [2003] ECR I-11893, para. 73; joined cases C-154 and 155/04 The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd v. Secretary of State for Health (C-154/04) and

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edges that interests other than physical goods can be considered as property. This is the case, for instance, of the entitlement to milk reference quantity.161



3.2 Article 17 of the Charter of Fundamental Rights of the European Union

Article 17 of the Charter of Fundamental Rights of the European Union protects the right to property and is based on the model of Article P1-1 ECHR. The first paragraph is built on the three cornerstone principles elaborated by the ECtHR, according to which everyone is entitled to the peaceful enjoyment of his possessions, the deprivation of property may take place only in the cases and under the conditions provided for by law, subject to fair and prompt compensation, and the State may control the use of property in the general interest. The second paragraph states that ‘intellectual property shall be protected’.162 This wording could be understood as implying a duty for Member States to protect it; hence, the French and Italian versions read respectively: ‘La propriété intellectuelle est protegée’, and ‘La proprietà intellettuale è protetta’.163 In addition to the lack of terminological consistency, this provision has been criticised because there is no express reference to the limited nature of intellectual property rights.164 Nevertheless, the explanatory document makes it clear that ‘the guarantees laid down in paragraph 1 [of Article 17] shall apply as appropriate to intellectual property’.165 The statement is consistent with the ECJ’s view according to which ‘intellectual property rights, including copyright, form part of the right to property’,166 and it entails that intellectual property rights can be limited in order to safeguard the public interest. The fact that intellectual property is mentioned separately is merely due, according to the drafters of the The Queen, on the application of National Association of Health Stores and Health Food Manufacturers Ltd v Secretary of State for Health and National Assembly for Wales [2005] ECR I-6451, para. 128. 161

Case 5/88, Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609. The applicant claimed that the measure depriving him without compensation of the milk reference quantity granted to the farm of which he was the tenant infringed his right to property. Following the opinion of Advocate General Francis Geoffry Jacobs, the ECJ recognized that milk reference quotas are to be seen as property and are consequently protected by the right of property.

162 163

Emphasis added.

Emphasis added.

164

C . Geiger, ‘Intellectual Property Shall be Protected!? – Article 17(2) of the Charter of Fundamental Rights of the European Union: A Mysterious Provision with an Unclear Scope’ (2009) 31 European Intellectual Property Review 113-117 at 115.

165

Note from the Praesidium, Draft Charter of Fundamental Rights of the European Union – Text of the explanations relating to the complete text of the Charter, Charte 4473/00, Brussels, October 11, 2000, p. 20.

166

Case C-479/04, Laserdisken ApS v. Kulturministeriet [2006] ECR I-8089, para. 65.

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Charter, to ‘its growing importance and Community secondary legislation’167 as is shown by the fact that the EU policy tends to assure a high level of protection for intellectual property rights.168

Conclusion Despite the many questions that surround the nature and function of property rights, the right of property finally found a place in the European catalogue of human rights within the First Protocol to the ECHR. Since its early years, the ECtHR has adopted an evolutive interpretation of Article P1-1 that leaves little room for the history of the genesis of this article. National laws as well are not of much help in defining the concept of property under ECHR law because the autonomous meaning doctrine allows the ECtHR to rule apart from the content of domestic legislations. Despite being included in a treaty for the protection of human rights, Article P1-1 states that legal, as well as natural persons are entitled to the right to the peaceful enjoyment of their possessions. That should prevent the ECtHR from developing a double standard of protection depending on the nature of the applicant, as it did with reference to other Articles of the Convention that are not expressly addressed to legal persons.169 On the other hand, the fact that Article P1-1 explicitly covers legal persons too makes it a suitable instrument for the ECJ that often deals with claims brought by companies or enterprises. As a matter of fact, Article P1-1 ECHR has been the main source of inspiration for both the ECJ, when acting as the guardian of fundamental rights, and for the drafters of Article 17 of the EU Charter of Fundamental Rights, whose first paragraph follows the tripartite structure of Article P1-1, and whose second paragraph introduces a new element, namely an express mention of the protection of intellectual property. The concern for effectiveness that underpins the ECtHR’s approach to the interpretation and application of the Convention led the Court to adopt an extensive interpretation of the concept of deprivation of property within the context of Article P1-1, and to check in concreto the proportionality of national laws regulating the use of property. Article P1-1 has thus assumed the function of protecting private owners against the imposition of excessive burdens. Moreover, relying on the theory of positive obligations, the ECtHR placed a general positive obligation on Contracting States to guarantee a genuine and 167

Note from the Praesidium, cit.

168

See, for instance, EU Commission, Green Paper: Copyright in the Knowledge Economy (COM, 2008), p. 4.

169

For example, in the Société Colas Est case, the Court stated that the right to respect for a company’s registered office falls within the scope of Article 8 ECHR. It affirmed, however, that the Contracting States’ entitlement to interfere might be more far-reaching where professional or business activities or premises are involved than would otherwise be the case (App. No. 37971/97, Société Colas Est. v. France [2002] ECtHR).

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effective exercise of the right of property through positive actions. It follows that, in practice, a State can be held responsible for not having set up an appropriate regulatory system. To date, the Court has referred to States’ positive obligations only in a relatively small number of cases. It inferred, in particular, the positive obligations to protect property in the sphere of dangerous activities and weather hazards, to compensate for decreases in property value, and to adjudicate property litigation between private persons.

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The Interaction between European Human Rights Law and National Law in Italy and France

chapter 3

the interaction between european human rights law and national law in italy and france

Introduction The proclamation of the EU Charter of Fundamental Rights and the debate over the European Constitution aroused interest in the multilevel protection of fundamental rights across Europe. As outlined above, the ECtHR acts as the ultimate arbiter of human rights disputes for 47 European States, but its constitutional role – and therefore its capacity to develop and enforce an integrated European human rights order – is doubtful. Despite the fact that the ECHR system has gained remarkable authority and prestige, the supremacy of ECHR law over domestic law is questioned in many national legal systems. Nico Krisch describes the European human rights regime as ‘different norms and actors competing for ultimate authority [...] through politics rather than legal argument’ because of the lack of a ‘common legal frame of reference’.1 He argues that a pluralist rather than a constitutionalist model must be used to describe its evolution, because there is no evidence of ‘the emergence of a unified, hierarchically ordered system along constitutionalist lines’, while domestic courts have created ‘a zone of discretion in deciding whether or not to respect a judgment of the ECtHR’.2 However, it is equally true that the ECtHR exerts both political and legal influence on Contracting States, regardless of the ECHR’s status in domestic legal orders. On the other hand, European Union law overrides national law, and the lack of a bill of rights in the original text of the treaties has not been an obstacle to the development of a specific doctrine of human rights which evolved by way of general principles emerging in the jurisprudence of the ECJ. This Chapter illustrates the doctrines developed by the two European Courts to ensure the effectiveness of both ECHR and EU law, and how the Italian and French courts reacted to them.



1 The Authority and Prestige of the ECHR in the National Legal Orders of the Contracting States

The ECHR does not provide any express obligation on the Contracting States to grant its direct applicability. Moreover, the ECtHR regularly states that ‘it is for the State to choose the means to be used in its domestic legal system in order to comply with the provisions of the Convention or to redress the situation that has given rise to a violation’.3 However, as mentioned above, the case law of the ECtHR developed the obligation to protect human rights stated in Article 1 of the Convention so to include in its scope the obligation for domestic courts to apply standards in conformity with ECHR law. Thus, the 1

N. Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 The Modern Law Review 183-216 at 185.

2 3

 Ibidem, 215.

App. No. 23500/94, Polat v. Turkey [1999] ECtHR, para. 66.

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latter has – or should have – determinative influence on the interpretation of national legal acts. As well as interpretative superiority, the ECtHR case law wields ‘persuasive authority’. 4 In its first annual report on the supervision of the execution of judgments of the ECtHR, which was released in 2007, the Committee of Ministers noted that the level of respect for the ECHR ‘is remarkable and deserves to be highlighted’.5 The Committee stressed that ‘more than a thousand different general problems revealed by the Court’s judgments have been remedied, or are in the course of being remedied, through legal, administrative and/or other reforms’.6 The inventory drafted by the Committee of Ministers of general measures taken by Contracting States to implement the judgments of the ECtHR shows that the States have often shown a preventive and proactive attitude, going beyond the adoption of individual measures to put an end to human rights violations found by the Court and the redress (as far as possible) of the effects of those violations. The States have thus amended national legislation that was contrary to principles set down by the ECtHR and have taken executive action in the form of regulations, circulars, or changes of practice; they have also changed the jurisprudence of domestic courts and implemented administrative and practical measures to prevent new violations.7 The judgments of the ECtHR have also an orientation effect.8 Legislative and judicial bodies across Europe refer to ECtHR case law in the fulfilment of their functions,9 even though the ECtHR judgments have no erga omnes effects under Art. 46(1) of the Convention. It has also been suggested that scholars have played a role ‘in establishing the ECHR as a major tool on the European legal scenery’ despite its ‘technically relative importance’.10 Actually, scholarly commentary on ECHR law contributes 4

L.R. Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 European Journal of International Law 125-159 at 137.

5

Committee of Ministers, Supervision of the Execution of Judgements of the European Court of Human Rights: 1st Annual Report 2007, at p. 10. All reports concerning the execution of judgments are available on the website of the Council of Europe, at: http://www.coe.int/t/dghl/monitoring/execution/Documents/Publications_en.asp.

6 7

 Ibidem.

This inventory is published on the website of the Council of Europe: http://www.coe.int/t/dghl/monitoring/execution/Documents/MGindex_en.asp.

8

G. Ress, ‘The Effect of Decisions and Judgements of the European Court of Human Rights in the Domestic Legal Order’ (2005) Texas International Law Journal 359-187 at 374.

9

T. Barkuysen and M.L. Van Emmerik, ‘A Comparative View on the Execution of Judgements of the European Court of Human Rights’, in T. Christou and P.J. Raymond (eds.), European Court of Human Rights: Remedies and Execution of Judgements (London: British Institute of International and Comparative Law, 2005), pp. 1, 15, and 19.

10

S. Hennette-Vauchez, ‘Divided in Diversity: National Legal Scholarship(s) and the European Convention on Human Rights’ (2008) EUI Working Papers 2008/39 2.

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to its effectiveness by making the Convention more accessible to legal actors at the national level.11 At first, as said, the task of disseminating the knowledge and understanding of the ECHR was seen as a duty of the Council of Europe, but now the incorporation of teaching programmes on the ECHR system into university curricula is strongly encouraged by the Committee of Ministers.12 Even though academics were initially reluctant to engage with the ECtHR case law, the study of the ECHR has become a major subject of interest for legal scholars in a relatively short time.13



1.1. The Reception of the ECHR in Italy

The incorporation of the ECHR into the Italian legal system by law No. 848 on August 4, 195514 raised a debate on the place of the ECHR’s among other recognised sources of law. Constitutional scholars were the first to devote studies to the ECHR from a national perspective. According to the general rule, the rank of an international treaty in the Italian legal system is linked to that of the law by which the treaty is ratified. Thus, by virtue of law No. 848/1955, the ECHR was initially considered to have acquired the rank of ordinary law. That soon appeared to be a rather unsatisfactory solution because as a consequence of such classification the ECHR could have been derogated by later domestic law.15 Constitutional law scholars and the courts therefore advanced the idea that the Convention had a special status in the domestic legal order because of its object and source. As a consequence of this special status, the provisions of the ECHR could resist and prevail over subsequent national legislation16 even though the ECHR could not be considered as a text having constitutional value.17 11

Recommendation Rec(2002)13 of the Committee of Ministers to member states on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case law of the European Court of Human Rights, adopted on December 18, 2002.

12

Recommendation Rec(2004)4 of the Committee of Ministers to member states on the European Convention on Human Rights in university education and professional training, adopted on May 12, 2004.

13

P. Mahoney, ‘Réflexions d’un greffier de la Cour européenne des droits de l’homme à l’heure du départ’ (2005) Revue Universelle des Droits de l’Homme 1-4.

14 15

Published in the Gazzetta Ufficiale No. 221 of September 24, 1955.

Article 15 of the Disposizioni sulla legge in generale (i.e., Provisions on the Law in General) provides that a more recent law shall prevail over an inconsistent earlier law.

16

Constitutional Court, January 19, 1993, No. 10, (1993) Foro italiano I, 1374. The court held that the provisions of the ECHR could not be abrogated or amended by ordinary laws because they derived from a source referable to an atypical competence. See also Court of Cassation, Criminal Section I, 10 July 1993, No. 2194. The Court of Cassation recognised a ‘particular force of resistance’ to the ECHR as against later conflicting legislation by holding that it had the nature of a ‘general principle of the legal system’. In the same vein: Court of Cassation, Civil Section I, 8 July 1998, No. 6672, (1999) Giurisprudenza italiana. 1334.

17

Constitutional Court, 22 December 1980, No. 188 (1981) Foro italiano I, 318; 1 February 1982, No. 15 (1982) Foro italiano I, 2132; 30 July 1997, No. 288 (1997) Cons. Stato II, 1183; 12 December 1998, No.

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Since 2000, some lower courts, with the support of both the Court of Cassation and the Council of State, have started to solve conflicts between ordinary domestic law and ECHR principles by setting aside national laws contrasting with the ECHR.18 The Constitutional Court intervened to put an end to this approach, which was founded on the alleged incorporation of the ECHR into EU law, at the first opportunity it had to interpret the new Article 117 (1) Cost. The text of such article, as amended by the constitutional law No. 3 of 2001, provides that the legislative power of the State must be exercised ‘in accordance with the Constitution and within the limits set by European Union law and international obligations’.19 The opportunity finally arose in 2007. In two judgments issued on October 24 of that year, the Constitutional Court declared the unconstitutionality of Italian legislation on expropriation because it violated the guarantees provided for the protection of the right to property under Article P1-1 ECHR.20 In particular, in judgment No. 348 the Court established that, under the amended Article 117(1) of the Constitution, the ECHR has become a parameter of constitutionality of legislation. That means that the question of the conflict between the ECHR and subsequent national legislation falls within the exclusive jurisdiction of Constitutional Court jurisdiction, and, therefore, ‘eventual contrasts will not generate problems of the temporal succession of laws or assessments of the respective hierarchical arrangement of the provisions in contrast, but questions of constitutional legitimacy. The ordinary courts do not therefore have the power to set aside ordinary legislation in contrast with the ECHR, since the alleged incompatibility between the two takes the form of a question of constitutional legitimacy due to an eventual violation of Article 117(1) of the Constitution, falling under the exclusive jurisdiction of the Constitutional Court’.21

On the other hand, the Constitutional Court has the power to review the constitutionality of the provisions of the ECHR, as interpreted by the ECtHR, ‘because 399 (1999) Giurisprudenza italiana. 1021. For a close scrutiny of the different theories, see F. Cocozza, Diritto comune delle libertà in Europa: Profili costituzionali della Convenzione europea dei diritti dell’uomo (Torino: Giappichelli, 1991), pp. 51 ff.; R. Bin, G. Brunelli, A. Pugiotto, and P. Veronesi (eds.), All’incrocio tra Costituzione e CEDU. Il rango delle norme della Convenzione e l’efficacia interna delle sentenze di Strasburgo. Atti del seminario di Ferrara, 9 marzo 2007 (Torino: Giappichelli, 2007). 18

See, for instance, Tribunal of Genova, 23 November 2000; Court of Appeal of Roma, April 2, 2002; Court of Appeal of Firenze, 20 January 2005, (2005) Urbanistica e appalti 421; Court of Appeal of Firenze, 14 July 2006, (2007) Rivista giuridica dell’edilizia 109; Tribunal of Pistoia, 23 March 2007.

19

Article 117(1) of the Constitution, as amended by constitutional law 3/2001 published in the Gazzetta Ufficiale No. 248 of October 24, 2001.

20

Constitutional Court, 27 October 2007, No. 348 (2008) Foro italiano I, 40; Constitutional Court, 27 October 2007, No. 349 (2008) Foro italiano I, 39. The questions of substantive law decided by the Constitutional Court are discussed in Chapter 6 of this book.

21

Constitutional Court, 24 October 2007, No. 348, at para. 4.3. English version available at: .

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the provisions in question supplement a constitutional principle, whilst always retaining a lower status’.22 In this regard, in judgment No. 349, the Constitutional Court pointed out that ‘no aspect of the structure and objectives of the ECHR, or character of particular provisions of it, makes it possible to conclude that the legal position of individuals could be directly and unconditionally dependent on it, irrespective of the traditional normative framework of the individual signatory states, to the point of enabling the courts to set aside conflicting national legislation’.23

The Court then reasserted the supremacy of the Constitution over the ECHR by affirming its competence to verify ‘the compatibility of the ECHR provisions, as interpreted by the court specifically charged with this task by the member states [i.e. the ECtHR], with the relevant constitutional provisions. In this way, a correct balance is struck between the need to guarantee respect for international obligations required by the Constitution and to prevent this also resulting in a breach of the Constitution itself’.24

Finally, the Constitutional Court acknowledged the res interpretata authority of the ECtHR judgments by affirming that national judges have a duty to take ECtHR jurisprudence into account. Referring to Article 32(1) ECHR, which states that the ECtHR has jurisdiction to interpret the Convention, the Constitutional Court stated that ‘since legal norms live through the interpretation which is given to them by legal practitioners, and in the first place the courts, the natural consequence of Article 32(1) of the Convention is that the international law obligations undertaken by Italy in signing and ratifying the ECHR include the duty to bring its own legislation into line with the Convention, in line with the meaning attributed by the court specifically charged with its interpretation and application. It is therefore not possible to speak of the jurisdiction of a court overlapping with that of the Italian courts, but of a pre-eminent interpretative role which the signatory states have recognised in the European Court, thereby contributing to clarifying their international law obligations in that particular area’.25 22 23

 Ibidem, at para. 4.7.

Constitutional Court, 24 October 2007, no. 349. English version available on the website of the Constitutional Court, at: .

24 25

 Ibidem.

Para. 4.6. For some judgments in which national courts examine ECtHR case law, see I. Carlotto, ‘I giudici comuni e gli obblighi internazionali dopo le sentenze n. 348 e n. 349 del 2007 della Corte costituzionale: un’analisi sul seguito giurisprudenziale’ (2010) Politica del diritto 41-99.

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With the entry into force of the Treaty of Lisbon the question of the supremacy of the ECHR over domestic law and its immediate applicability in the national legal order was raised again. In particular, new – and few- attempts to comunitarize the ECHR have been made by the administrative courts on the basis of Art. 6(3) TEU, according to which ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’.26 In 2011, the Constitutional Court nonetheless reaffirmed its intent to avoid losing ground in favour of ordinary and administrative courts with regard to judicial review on the question of the compatibility between domestic laws and ECHR law.27 According to the Constitutional Court, the new wording of Art. 6(3) TEU does not imply that the ECHR, as well as the constitutional traditions common to Member States, have acquired a new status. Both of them play only an instrumental role in the individuation of the general principles of EU law, therefore the replacement of the expression ‘shall respect’ (used in the previous text of Art. 6(2) TEU) with the expression ‘are a part of’28 is not a decisive argument for changing the place of the ECHR under Italian law. Furthermore, the Court ruled out the possibility of indirectly conferring to the ECHR the status of the EU Treaty on the basis of the equivalence clause contained in Art. 52(3) of the Charter of Fundamental Rights of the European Union. The Court recalled that both Art. 6(1) TEU and Art. 51(1) of the Charter are evidently intended to exclude ‘that the Charter is an instrument of protection for fundamental rights beyond the competence of the European Union, as, indeed, the Court of Justice has consistently affirmed both before and after the entry into force of the Treaty of Lisbon’.29



1.1.1 The Circulation of the ECtHR Case Law in Italy

Some initiatives have recently been adopted at the institutional level to promote the circulation of the jurisprudence of the ECtHR. In January 26

See, for instance, Council of State, Sec. IV, 2 March 2010, judgment No. 1220/2010 (2010) 5 Rivista italiana di diritto pubblico comunitario 1346. The Council of State maintained that, with the entry into force of the Treaty of Lisbon, Art. 6 and 13 ECHR became directly applicable within the domestic legal order. Likewise, the Regional administrative tribunal of Lazio held that because of the recognition of the ECHR’s rights as principles of EU law, the ECHR became immediately applicable by ordinary courts (see judgment no. 11984/2010 of 18 May 2010 (2010) 4 Rivista giuridica dell’edilizia I, 1259.)

27

Constitutional Court 8 March 2011, judgment No. 80.

28

According to the Italian version of Art. 6 TEU, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, are a part of (in Italian ‘fanno parte del’; whereas the English version uses the terms ‘shall constitute’) general principles of the Union’s law.

29

Constitutional Court 8 March 2011, judgment No. 80, Conclusions on points of law § 5.5.

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2006, the Parliament adopted a law with the aim of ensuring that the legislature is promptly informed of ECtHR judgments against Italy.30 In 2008, the Osservatorio Permanente della Giurisprudenza della Corte Europea dei Diritti dell’Uomo was set up to improve the accessibility of ECtHR jurisprudence by providing the translation into Italian and publication of the decisions of the Court of Strasbourg.31 The Observatory also translates the resolutions and recommendations adopted by the Committee of Ministers of the Council of Europe, as well as judgments of national courts that apply or refer to the ECHR, and the regulatory measures taken to comply with the obligations deriving from the Convention. Moreover, a translation of some of the most significant judgments delivered by the ECtHR against Italy are now available on the website of the Ministry of Justice; the website of the Court of Cassation also publishes a list of abstracts of the judgments concerning Italy, which is regularly updated. In academic circles, international law professors were usually among the first to take an interest in the topic.32 The Rivista Internazionale dei Diritti dell’Uomo published from 1988 to 2003, was the first Italian law journal to provide a systematic review of ECtHR case law.33 It was then followed, in 1990, by I diritti dell’uomo. Cronache e Battaglie, a quartely review edited by the Unione forense per la tutela dei diritti dell’uomo.34 Over the last fifteen years, interest in the ECHR has grown steadily among the members of the national legal community, alongside the growth of ECtHR jurisprudence on issues concerning almost all fields of law. Some periodicals, such as Il Corriere Giuridico,35 that have a wide readership regularly publish an annotated summary of judgments delivered by the ECtHR. In 2007, the review Diritti umani e diritto internazionale was launched by a group of international law scholars to offer an interdisciplinary approach to human rights law.



1.2 The Reception of the ECHR in France

France was one of the Council of Europe’s founding States, together with Italy. Although France signed the text of the ECHR on Novem30

Law No. 12 of 9 January 2006, published in Gazzetta Ufficiale of 19 January 2006 No. 15. Also see D.P.C.M. 1 February 2007 containing measures for the execution of Law 12/2006.

31

. The Observatory was created on the initiative of the Unione forense per la tutela dei diritti dell’uomo and funded by the Department for Equal Opportunities of the Presidency of the Council of Ministers. The director of the Observatory is Anton Giulio Lana.

32

For an early publication dealing with ECHR from a criminal law perspective, see M. Chiavario, La Convenzione europea dei diritti dell’uomo nel sistema delle fonti normative in materia penale (Milano: Giuffrè, 1969).

33

This was published by Università Cattolica del Sacro Cuore of Milano. Michele De Salvia – a former registrar of the ECtHR – was one of the most active contributors to the journal.

34 35

The review has a circulation of about 3.000 copies per issue. The editor is Mario Lana.

This review is published monthly and treats civil law and procedure.

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ber 4, 1950, it did not ratify the Convention until 1974,36 and until 1981 it also excluded individual petitions before the ECtHR.37 Various reasons have been suggested to explain this delay38 Divergences between national law and the ECHR were first presented as obstacles to its ratification and had at the time been at the root of French reservations about the Convention.39 The main reason against ratification, however, was probably a widespread hostility towards a supranational control mechanism in the area of libertés publiques. 40 The Government affirmed that it did not believe that the ratification of the Convention was necessary to secure the liberties that national law already guaranteed for its citizens. The day after the decision to ratify the Convention, government spokesman Jean-Philippe Lecat stated that France did not have much to learn in the field of human rights, but that the Government considered the ratification of the Convention to be a European gesture. 41 With the ratification, the ECHR acquired supra-legislative but infra-constitutional status. 42 The French Constitution reflects a monistic view of the operation of international agreements in the national legal order. Therefore, international treaties that are ratified acquire an authority superior to that of ordinary laws after publication in the official gazette, as long as the other contracting parties 36 37

Decree 74-36.

Decree 81-917.

38

See R. Errera, ‘La Convention et les problèmes de la laïcité de l’enseignement’ (1970) Revue des droits de l’homme 593-594; Errera observes that ‘lorsq’en 1957-1958 les organes parlementaires débattent de la ratification, c’est, du moins publiquement, le problème scolaire qui est invoqué comme obstacle principal’; he wonders whether ‘les événements d’Algérie et les pratiques dénoncées dans nombre de rapport officiels n’ont-ils pas été de nature à faire souhaiter, ici et là, que la Convention ne soit pas rapidement ratifié, par crainte des recours qui auraient pu être introduits’. See also E. Lambert Abdelgawad and A. Weber, ‘The Reception Process in France and Germany’, in H. Keller and A. Stone Sweet (eds.), A Europe of Rights. The Impacts of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008), p. 108.

39

France made two reservations in 1974. The first, concerning Articles 5 and 6 ECHR, prevented the ECommHR from examining the length of proceedings pending before administrative jurisdictions. The second concerned Article 15 ECHR (Derogation in time of emergency), which was seen as opening the way to the control by the organs of the Convention over the acts of the President of the Republic during a state of emergency (Article 16 of the Constitution).

40

L. Heuschling, ‘Comparative Law and the European Convention on Human Rights in French Human Rights Cases’, in E. Örücü (ed.), Judicial Comparativism in Human Rights Cases (London: BIICL, 2003), p. 26. Heuschling emphasises that French ‘nationalist pride was one of the arguments used by French governments to delay the ratification of the ECHR’. Also see P. Wachsmann, ‘L’importation en France de la notion de “droits fondamentaux”’ (2004) Revue universelle des droits de l’Homme 40-49.

41

Quoted by B. Pacteau, ‘Le juge administratif français et l’interprétation européenne’ in F. Sudre (ed.), L’interprétation de la Convention européenne des droits de l’homme (Brussels: Bruylant, 1998), p. 256, footnote 8. See also the Explanatory Report on the bill concerning the ratification of the ECHR.

42

Council of State, 30 October 1998, decision No. 200286, 200287. See also Court of Cassation, 2 June 2000, No. 99-60274.

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are also bound to apply them. 43 However, all academic commentators agree that the reciprocity rule does not apply to human rights treaties. 44 Since the Convention is not part of the bloc de constitutionnalité (i.e., the rules of reference for the review of constitutionality), the supremacy of the ECHR law in the internal legal order of France is entrusted to the ordinary courts. In other words, the conformity of the domestic law to the ECHR is provided by means of the contrôle de conventionalité instead of those of constitutionnalité. Even so, the Constitutional Council has taken the ECHR into account in its decisions several times. With respect to this approach, Mitchel De S.-O.-I’E. Lasser rightly observed that France is trying to ‘recover independence and leadership relative to the European judicial orders’ by ‘domesticating’ fundamental rights. 45 The new mode of constitutional judicial review established in 2011 is a clear signal in that direction since ‘the constitutional reform grants to domestic courts—and the Constitutional Council in particular—a certain measure of independent normative authority in the fundamental rights field. But this independent authority only grants a major leadership role to the extent that French fundamental rights norms exceed their European equivalents’. 46 Moreover, the procedure for the constitutional review of legislation established in 2011 does not allow a direct constitutional complaint lodged by individual petitioners before the Constitutional Council, but it only provides them with the right to have one’s case examined for an eventual referral to the Constitutional Council. If the question of constitutionality that is raised before the lower courts meets the admissibility criteria, 47 it will thus be referred either to the Council of State or to the Court of Cassation—for a priority preliminary ruling on the issue of constitutionality. 48 43

Article 55 of the Constitution of 1958.

44

F. Sudre, Droit européen et international des droits de l’homme (Paris: Presses Universitaires de France, 9th ed., 2008), p. 62; G. Cohen-Jonathan, Droits de l’homme en France, dix ans d’application de la Convention européenne des droits de l’homme devant les juridictions judiciaires françaises (Strasbourg: N.P. Engel, 1985), p. 169.

45

M. De S.-O.-I’E. Lasser, Judicial Transformations. The Rights Revolution in the Courts of Europe (Oxford and New York: Oxford University Press, 2009), p. 303. See also M. Hunter-Henin, ‘Constitutional Developments and Human Rights in France: One Step Forward, Two Steps Back’ (2011) 60(1) International and Comparative Law Quarterly 167-188. Lasser argues that the main goal of the reform is to nationalize the protection of human rights and ensure the supremacy of the Constitution.

46 47

M. De S.-O.-I’E. Lasser, Judicial Transformations, cit., p. 303.

The conditions of admissibility, set out in Article 61-1 of the Constitution, are the following: a) the challenged statutory provision must apply to the litigation or proceedings involved, or be the basis of such proceedings; b) the challenged statutory provision has not previously been found to be constitutional by the Constitutional Council; c) the issue raised is a new one or is of a serious nature.

48

Refusal by a court of first instance or a court of appeal to transmit an application for a priority preliminary ruling on the issue of constitutionality may be challenged when lodging an appeal (before a court of appeal, the Council of State or the Court of Cassation) against the decision on the merits handed

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This mechanism has allowed the Court of Cassation an opportunity to manifest hostility towards a reform that, to all intents and purposes, subordinates its authority in interpreting the law to that of the Constitutional Council. The Court thus took some steps that originated tensions with the Parliament. One of such steps was a reference for a preliminary ruling under Art. 267 TFEU concerning the organic Law No 2009‑1523 of 10 December 2009 on the application of Article 61‑1 of the Constitution 49 to clarify the case where an individual raises a question relating to both the constitutionality and conventionality of a legislative provision. In that case, the national court or tribunal must rule as a matter of priority on whether to submit the question on constitutionality to the Council of State or the Court of Cassation. The ECJ confirmed that the priority nature of that procedure shall not prevent ‘—both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question—all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling’.50 Accordingly, the French Court of Cassation held that ‘dans l’hypothèse particulière où le juge est saisi d’une question portant à la fois sur la constitutionnalité et la conventionnalité d’une disposition législative, il lui appartient de mettre en oeuvre, le cas échéant, les mesures provisoires ou conservatoires propres à assurer la protection juridictionnelle des droits conférés par l’ordre juridique européen; qu’en cas d’impossibilité de satisfaire à cette exigence, comme c’est le cas de la Cour de cassation, devant laquelle la procédure ne permet pas de recourir à de telles mesures, le juge doit se prononcer sur la conformité de la disposition critiquée au regard du droit de l’Union en laissant alors inappliquées les dispositions de l’ordonnance du 7 novembre 1958 modifiée prévoyant une priorité d’examen de la question de constitutionnalité’.51

For the sake of completeness, one should also mention that in 1984 France established the Commission nationale consultative des droits de l’Homme (CNCDH).52 This is a specialised body set up to foster compliance of domestic law with human rights law standards. Its mandate is the promotion and monitoring of the compliance of national norms and practices with international human rights instruments such as the ECHR. The Commission has an advisory role to the Government and can, of its own initiative, draw attention to measures that should favour the promotion and the protection of human rights. In down by the court hearing the case. On the other hand no appeal may be lodged against a refusal by the Council of State or the Court of Cassation to refer the application to the Constitutional Council. 49 50

JORF of 11 December 2009, p. 21379.

Judgment of the Court (Grand Chamber) of 22 June 2010. Case C-188/10 and C-189/10, Aziz Melki and Sélim Abdeli [2010] ECR I-5667, para 57.

51

Court of Cassation 29 June 2010, No. 10-40001.

52

Décret n°84-72 du 30 janvier 1984 relatif à la commission consultative des droits de l’homme.

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a circular dated October 22, 1999, the Prime Minister urged the Government to consult the CNCDH on bills having an impact in the field of human rights.53 Legislative bills of individual members of parliament are not subject to any advisory procedure concerning their compatibility with the ECHR, however.



1.2.1 The Circulation of the ECtHR Case Law in France

Since the 1960s, French scholars have considered the study of human rights law a separate subject, falling under the label of libertés publiques,54 which involves both international law and domestic law specialists.55 The first scholars who acknowledged and developed the literature on ECHR law were those who contributed to the establishment of the Convention system; they included René Cassin, Louis-Edmond Pettiti, Jean-Paul Costa, and MarcAndré Eissen. Cassin, together with Polys Modinos and Karel Vasak,56 launched the Revue des droits de l’homme. This was not the first law journal to pay attention to the ECHR. Other periodicals, such as the Annuaire français de droit international and the Journal de droit international also covered the Convention system and the resulting jurisprudence. Later, in the 1990s, chronicles on ECHR began to appear in the Revue française du droit administratif, the Revue universelle des droits de l’homme, in La semaine juridique, and the Revue du droit public. Generally speaking, the circulation of the ECtHR case law in France is facilitated by the fact that French is one of the official languages of the Court. At the institutional level, the dissemination of the ECtHR’s major rulings to the administration is ensured by the Ministry of Justice’s Department of European and International Affairs and by the legal arm of the Foreign Office. Moreover, an Observatoire du droit européen has been set up at the Court of Cassation with the task of informing judges of the Court when a major judgment is delivered by the ECtHR, or by the ECJ.



2 The Direct Effect and Primacy of EU Law

It is well known that individuals originally had no standing to raise State violations of EC law before domestic courts, and that in the early years of the Community the Member States and the Commission were reluctant 53

Circulaire du 22 octobre 1999 relative à l’association de la Commission nationale consultative des droits de l’homme aux initiatives gouvernementales.

54 55

The teaching of libertés publiques became mandatory in French law faculties in 1962.

Among the leading French experts of the ECHR are Gérard Cohen-Jonathan, Frédéric Sudre, and Paul Tavernier, who are international law scholars, and Paul Rolland, Mireille Delmas-Marty, and Jean-François Flauss, who have a different background.

56

Polys Modinos was Human Rights Director at the Council of Europe and then the ECtHR’s registrar and the deputy secretary general of the Council of Europe. Karel Vasak served as secretary at the Human Rights Directorate of the Council of Europe.

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to raise infringement cases before the ECJ.57 It is also well know, however, that treaty provisions and directives can now, under certain conditions, create rights that individuals can invoke before national courts. This principle was established in 1963 by the ECJ in the Van Gend en Loos decision, which stated that ‘the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only Member States, but also their nationals. Independent of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’.58

Granting individuals legal standing to demand State compliance with EU law changed how ECJ decisions were enforced. This major jurisprudential innovation was not however, sufficient to bring into being the proclaimed new legal order of international law. The principle that the effect of international treaties in national legal orders depends upon domestic law posed a peril for the correct functioning of the system and threatened the creation of a common market. To be viable, the economic regime set out by the EC Treaty required that the rules governing the internal market have the same meaning and effect in all Member States. To be sure, the original EC Treaty did not clearly state that Community law should take precedence over national law. The primacy doctrine has thus been coined by the ECJ to ensure that EC law is recognised by all Member States as outweighing national law. In the renowned Costa judgment the ECJ affirmed that ‘the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the right and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’.59

The implications of the primacy doctrine have been clarified in subsequent cases. In the Simmenthal case, the ECJ stated that ‘every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights of individuals and must accordingly set aside any provision of national 57

K.J. Alter, Establishing the Supremacy of European Law: The Making of a International Rule of Law in Europe (Oxford: Oxford University Press, 2001), pp. 11 ff..

58

Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963] ECR 1.

59

Case 6/64, Flaminio Costa v. E.N.E.L. [1964] ECR 585.

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law which may conflict with it, whether prior or subsequent to the Community rule’.60 This means that provisions of national law that conflict with the Treaty, or with directly relevant provisions of EU legislation, are automatically inapplicable. In other words, inconsistent rules of national law can continue to exist and have effect in the domestic legal order of the State, but national courts are obliged to disapply them when they conflict with the European source.61 Although the primacy principle is a core principle of the EU legal order, it has never been inserted in the EC/EU founding treaties, despite their many revisions. The only clear reference to the principle is a declaration annexed to the final act of the intergovernmental Conference that adopted the Treaty of Lisbon. The Conference quoted on this point the opinion of the Council Legal Service delivered on June 22, 2007, according to which ‘it results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice’.62

Throughout the years, the doctrine of primacy has gradually been accepted by all Member States, and it is regularly applied by their lower domestic courts. Even so, some national supreme and constitutional courts have developed a critical attitude towards the doctrine and have shown some resistance to its application.63



2.1 The Reception of the Direct Effect and Primacy Doctrines by Italian Courts

The Italian Constitutional Court has recognised EU law as a supranational law provided with primacy and direct effect.64 This recognition, 60 61

Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECJ 00629.

Joined Cases C-10/97 to C-22/97, Ministero delle Finanze v. IN.CO.GE.’90 Srl, Idelgard Srl, Iris’90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl [1998] ECR I-6307.

62 63

.

On this point see A. Arnull, The European Union and its Court of Justice (Oxford: Oxford University Press, 2nd ed., 2006), especially p. 253.

64

M. Cartabia, ‘The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Union’, in A.-M. Slaughter, A. Stone Sweet, and J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence. Legal Change in Its Social Context (Oxford: Hart

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which did not come about immediately, is grounded on Article 11 of the Constitution, according to which Italy ‘agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations’.65 Accepting EU law as international law, the Constitutional Court applied the general rule under which the rank of an international treaty in the domestic legal order is the same as the rank of the law of ratification. Accordingly, the Court stated that since Community and national norms have the same legal force, their relationship should be regulated by the principle lex posterior derogat priori. During the 1970s, before the Simmenthal case, the Constitutional Court came to grant EC law supremacy over more recent national norms by means of constitutionality review. The Court held that in practice, national law that conflicted with EC law indirectly infringed Article 11 of the Constitution.66 Therefore, only the Constitutional Court could uphold the supremacy of EC law because it was the only Court that could invalidate national norms on the basis that they infringed EC law. Finally, in the Granital case, the Constitutional Court held that all national judges have a duty to set aside domestic law when it conflicts with EC law, unless it is contrary to a fundamental principle of the Italian constitutional system, or a fundamental right.67 In such a case, it is for the Constitutional Court to decide which rule should prevail (on the basis of the so-called counter-limits doctrine).68 The Court reasserted the counter-limits doctrine in its judgment No. 348/2007, although to date the Court never declared a Union act unconstitutional on this ground.69



2.2 The Reception of the Direct Effect and Primacy Doctrines by French Courts

Article 55 of the French Constitution clearly establishes the supremacy of international law, and therefore ‘the main legal issue in France was not really whether European law was supreme to French law but rather whether national judges had the authority to enforce the supreme European law over subsequent French law’.70 Publishing, 1998), p. 140; Cartabia, who has been a Constitutional Court judge since 2011, advances the point that ‘to some extent the Constitutional Court anticipated the Court of Justice in drawing some important consequences from the principle of direct effect’. 65

See Constitutional Court, 7 March 1964, judgment No. 14.

66

See, for instance, Constitutional Court, 30 October 1975, No. 232; 28 July 1976, No. 205 and 206; 29 December 1977, No. 163.

67

Constitutional Court, 8 June 1984, No. 170 (1984) Foro italiano I, 206.

68

See G. Martinico, O. Pollicino (eds.), The National Judicial Treatment of the ECHR and EU Law. A Comparative Constitutional Perspective (Groningen: Europa Law Publishing, 2010) pp. 275 ff.

69

A. Celotto and T. Groppi, ‘Diritto UE e diritto nazionale: primauté vs. controlimiti’ (2004) Rivista italiana diritto pubblico comparato 1309-1384 at 1347.

70

K.J. Alter, Establishing the Supremacy of European Law: The Making of a International Rule of Law in Europe (Oxford: Oxford University Press, 2001), at p. 135.

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The first to recognise the primacy of EU law over domestic law was the Court of Cassation in the Jacques Vabre case in May 1975.71 In the contested judgment, the lower courts enforced Article 95 of the EC Treaty [now Art. 114 TFEU] over a subsequent French fiscal law pursuant to Article 55 of the 1958 Constitution. The Advocate General of the Court of Cassation supported the decision of the lower courts but suggested modifications to the reasons for the decision, leaving the reference to Article 55 to follow the ECJ reasoning in the Costa judgment. The Court of Cassation finally opted to ground the enforcement of Article 95 EC Treaty in Article 55 of the French Constitution in addition to relying on the specificity of EC law. The formula, although criticized,72 has proven to be successful and is still in use today. Contrary to the Court of Cassation, the Council of State at first adopted a conservative approach. In the Semoules case of 1968,73 the Council clearly stated that the primacy of EC law over later domestic law was quite unacceptable.74 The Council changed its attitude about thirty years later with the Nicolo decision,75 in which it acknowledged that administrative judges could, by virtue of Article 55 Cost., examine the conformity of national laws with an international treaty. In an interesting analysis of the context against which the Court of Cassation and the Council of State acted, Jens Plötner traced the main social and legal differences between the judicial and administrative jurisdictions. First, the Courts faced a different litigation pattern. As far as ‘the steady growth of transnational economic exchanges brought along an internationalisation of civil and especially commercial law’,76 the judicial courts were confronted with actions founded upon international treaties earlier than the administrative ones. Second, the education and training of the judicial and administrative judges are very different. The members of the first group have generally studied law at the university and started their careers in the province. The members of the Council of State come instead from the prestigious Ecole nationale d’amnistration (ENA) and spend most of their working lives in Paris. Moreover, Plötner argued, ‘less centralised, the future magistrates simply didn’t learn anything about Community law whereas the ENA students were taught in an atmosphere of distrust towards European integration for a long time’.77 Third, the Council of State is in a more delicate position within France’s legal and institutional setting since ‘its existence has no constitutional guarantee whatsoever. Although – or because – it 71

Court of Cassation, Mixed Section, 24 May 1975, No. 73-13556.

72

F.C. Jeantet, ‘La Cour de Cassation et l’ordre juridique communautaire’ (1975) Juris-Classeur périodique 2743.

73

Conseil d’Etat, Syndicat général des fabricants de semoules de France, 1 March 1968, No. 62814.

74

J. Plötner, ‘Report on France’, in A.-M. Slaughter, A. Stone Sweet, and J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence. Legal Change in Its Social Context, cit., pp. 45-46.

75

Council of State, 20 October 1989, No. 108243.

76 77

J. Plötner, ‘Report on France’, cit., p. 55.

 Ibidem, at p. 56.

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is the oldest French court, it is not mentioned anywhere in any of the Constitutions’. Thus, considering that its judgments can have great political importance, it is important for it ‘to be on good terms with Parliament’.78 Fourth and last, the conservative approach adopted by the Council of State can be seen as an attempt at resisting the depreciation of its role. The first attack to its dominance came in 1958 with the creation of the Constitutional Council. The supremacy doctrine constituted ‘another threat to the status quo’.79 Finally, the French Constitutional Council, like the Italian Constitutional Court, developed the idea that certain essential domestic values override the EU law’s primacy. The Constitutional Council held that secondary law by the EU cannot be implemented in the national legal order if it is inconsistent with an ‘express provision of the French Constitution’80 or ‘rules and principles inherent to the French constitutional identity’.81



3 European Human Rights Law between Supremacy and Subsidiarity

The Italian Constitutional Court and the French Constitutional Council have generally accepted the principle of the primacy of EU law over domestic legislation and have entrusted its protection to ordinary judges; even so, they still assert their role as guardians of domestic constitutional principles. This stance is, however, to be understood against the background of an evolving European law. The counter-limits doctrine first developed by the Bundesverfassungsgericht in the Solange I case82 and later embraced by many constitutional courts has been, to some extent, Europeanized by the ECJ, when it affirmed its commitment to protect fundamental rights as they result from the constitutional traditions common to the Member States. The Luxembourg Court has even gone a step further in the Omega judgment of 2004.83 The case concerned the operation in Germany of a laserdrome for playing simulated killing games which were allowed in the United Kingdom. German administrative authorities issued an order prohibiting the operation of games involving firing at human targets on the grounds that such games constituted 78

 Ibidem, at p. 57. The author refers to the intention of General de Gaulle to dissolve the Council of State after the Canal decision of 1962, which invalidated an order given by him for the establishment of a special military court for crimes related to the ‘events’ in Algeria.

79

 Ibidem, at p. 58.

80 81

Constitutional Council, 10 June 2004, dec. No. 2004-496 DC, para. 7.

Constitutional Council, 27 July 2006, dec. No. 2006-540 DC, para. 19; 30 November 2006, dec. No. 2006-543 DC, para. 6.

82 83

BVerfGE 37, 271, of 29 May 1974.

Case C-36/02, Omega Spielhallen und Automatenaufstelungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609.

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an affront to human dignity as guaranteed in Article 1 (1) of the German Constitution. The ECJ had thus to decide whether fundamental values laid down by the national Constitution could always be invoked as grounds to restrict fundamental freedoms guaranteed by the Treaty, or whether a common legal conception in all Member States was a precondition for one of the States being enabled to restrict such basic freedoms.84 Claiming that respect for human dignity is a general principle of law, the ECJ considered immaterial the particular status of the same principle as an independent fundamental right under the national law. Having taken this position the Court then allowed a certain margin of discretion to the States in the field of fundamental rights by stating that ‘it is not indispensable in that respect [i.e., for considering measures which restrict the freedom to provide services justified on public policy grounds] for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected’.85

Accordingly, the ECJ ascertained the proportionality of the national measure at issue without considering whether the level of protection of human dignity granted by the German authorities corresponded to an accepted standard common to all Member States.86 Finally, Article 4(2) TEU took into account the counter-limits doctrine to a certain extent by proclaiming the intangibility of Member States’ ‘national identities, inherent in their fundamental structures, political and constitutional’. The ECHR system rests instead on the subsidiarity principle that places primary responsibility for the protection of human rights on national authorities,87 who have much choice in how to proceed. The ECtHR has nevertheless developed some interpretative tools ‘to draw the line between what is properly a matter for each community to decide at a local level and what is so fundamental that it entails the same requirement for all countries whatever the variations in traditions and culture.’88 84 85

 Ibidem, para. 23.

 Ibidem, para. 37.

86

The ECJ limited its considerations to the fact that ‘by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus ‘play at killing’ people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities’ (Ibidem, para. 39).

87

On the origin and development of the subsidiarity principle, see D. Shelton, ‘Subsidiarity and Human Rights Law’ (2006) 27 Human Rights Law Journal 4-11.

88

P. Mahoney, ‘Marvellous Richness or Diversity or Invidious Cultural Relativism?’ (1998) Human Rights Law Journal 1-6.

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In particular, the doctrine of the margin of appreciation, on one hand, and the res interpretata authority89 of the ECtHR’s judgments, on the other, serve the specific function of restricting and guiding the discretion allowed to national authorities. The doctrine of the margin of appreciation, as an expression of the subsidiarity principle, reflects the tension inherent in the task of developing and implementing the ECHR’s standards while taking into account the particular national circumstances and conditions. In practical terms, it indicates the measure of discretion that Contracting States enjoy in applying the provisions of the Convention. The doctrine is thus a tool for the identification of the areas of competence of the ECtHR and of domestic authorities in securing the Convention’s rights. The limits within which States may act are set by the ECtHR and depend on many factors, such as the nature of the right at stake, the particular interest pursued by the State, and so forth. Given the ECtHR’s reluctance to interfere in matters of general economic or social policy, it can be affirmed that the Court will allow States a broad margin of appreciation where social issues or the allocation of resources are concerned. The doctrine stands on the assumption that State authorities are in principle in a better position than an international judge to assess questions involving the balancing of interests. Yet, in every case, the ECtHR has the last word on interferences with Convention rights. As for the res interpretata authority, it is commonly recognised that, despite the fact that the ECtHR has not developed a binding doctrine of stare decisis, its judgments enjoy an erga omnes effect insofar as the interpretation of the Convention is concerned. Moreover, an obligation of consistent interpretation is taking shape in the ECtHR case law, which would grant the primacy of ECHR law.

Conclusion In the years following their establishment, both the Strasbourg and Luxembourg Courts were concerned with the issue of ensuring the effectiveness of the rights proclaimed by the ECHR and by the Community law. To achieve this objective in the respective systems, the ECJ and the ECtHR developed different principles reflecting the different purposes of EU law as compared with the ECHR. The first aims to unify or harmonise certain branches of the law relating to the establishment of the internal market; thus, the ECJ relied on the preliminary ruling procedure as its main tool to ensure and safeguard 89

The concept of autorité de la chose interpretée was formulated at first by J. Boulouis with reference to the ECJ jurisprudence. See ‘Remarques sur l’oeuvre jurisprudentielle de la Cour de Justice des Communautés Européennes’, in Mélanges Offerts à Marcel Waline: Le juge et le droit public, 2 vols. (Paris: L.G.D.J., 1974), vol. I, pp. 155 ff.

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the uniform application of EU law,90 and it further elaborated the direct effect and primacy doctrines to counteract rules of national law that hindered the uniform application of EU law. The purpose of the ECHR is, instead, to set a minimum threshold for the protection of human rights; consequently, the ECtHR relied on the margin of appreciation doctrine to grant a variable degree of deference to national authorities. Even so, the ECtHR managed to develop an authoritative ‘jurisprudence’,91 based on precedents that are not strictly binding,92 and to establish an obligation of consistent interpretation without openly affirming the supremacy of ECHR law. The Italian and French judicial systems are similar in many respects. In both countries the judicial function is exercised by a court system consisting of administrative and judicial (criminal and civil) courts. However, their respective systems of constitutional review are different, although recent developments show some degree of convergence. The Italian Constitutional Court was originally entrusted with the task of ex post control of the constitutionality of laws. This involved the review of the constitutional legitimacy of laws and other enactments having the force of law issued by the State and the Regions.93 Access to the Constitutional Court is restricted to the Government, the Regions,94 and the judicial authorities.95 Hence, individuals cannot challenge the constitutionality of laws by addressing a petition directly to the Constitutional Court. The competence to raise a question of constitutionality before the Constitutional Court belongs to the courts that may proceed ex officio, or under the impulse of litigants appearing before them. Any court in Italy can refer a question of constitutionality to the Constitutional Court. 90

See Case 166/73, Rheinmühlen-Düsseldorf v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33. At para. 2, the Court emphasized that article 234 EC Treaty [267 TFEU] ‘is essential for the preservation of the community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the Community’.

91

‘C’est-à-dire un ensemble de solutions abstraites et générales à des questions de droit, ayant “l’autorité de ce qui a été jugé constamment dans le même sens”’. Definition given by F. Sudre, Droit européen et international des droits de l’homme (Paris: PUF, 9th ed., 2008), p. 742.

92

See App. No. 27238/95, Chapman v. The United Kingdom [2001] ECtHR [G.C.], especially para. 70; App. No. 14939703, Sergey Zolotukhin v. Russia [2009] ECtHR [G.C.], especially para. 78.

93

Article 134 Cost. The Court reviews laws both for formal constitutionality by investigating whether legislative acts have been enacted in accordance with the procedures stipulated in the Constitution and for substantive constitutionality by investigating whether the content of laws is consistent with constitutional principles. By virtue of Article 136 Cost., ‘when the Court declares the constitutional illegitimacy of a law or enactment having force of law, the law ceases to have effect the day following the publication of the decision’.

94 95

Article 127 Cost.

Article 1 of Constitutional Law No. 1 of 9 February 1948, published in Gazzetta Ufficiale of 20 February 1948, No. 43, and Article 23 of Law No. 87 of 11 March 1953, published in Gazzetta Ufficiale of 14 March 1953, No. 62.

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In France, the Conseil Constitutionnel was conceived by the Constitution of 1958 as a watchdog that should have prevented Parliament from exceeding its powers. To avoid any imbalance in the distribution of powers in favour of the Constitutional Council, such control was introduced as a form of a priori constitutional review that was to be operated only by political authorities, and not by the courts. The first revolution in the French system of constitutional justice occurred in 1971, when the Constitutional Council invoked the Preamble of the Constitution of 1946 as a term of constitutional reference.96 The original system was fundamentally altered with the constitutional reform of 2008, which introduced the review of parliamentary acts a posteriori. Meanwhile, judicial and administrative courts had taken over the review of conventionality of statutory provisions and developed a rights-based jurisprudence to give full effect to the ECHR in the French legal order. The Italian Constitutional Court was conceived for carrying out an objective review of legislation, but from its beginning it established a fundamental rights dialogue with ordinary courts. This may help to explain the very different reaction of the Italian and French courts to the introduction of the ECHR in the domestic legal order. Overcoming an initial distrust towards the ECHR, the French courts adopted a proactive approach to that text that ultimately involved an expansion of the judicial power. The French ordinary and administrative courts soon asserted their authority to control the conventionality of all domestic acts and norms. This step gave them the opportunity to carry out a review of legislation that was quite similar to the constitutional review of legislation performed by the Italian Constitutional Court.97 In other words, even though there is no formal rule requiring French courts to take international law into account when interpreting and applying domestic law, national laws that do not comply with the ECHR would be set aside by ordinary courts. Italian courts proceeded on this ground much more cautiously. They urged that the ECHR be granted more than ordinary legislative normative status, but emphasized as well that the ECHR judgments should conform to the constitutional principles enshrined in the national Constitution. At present, therefore the ECHR can be appealed to for the purpose of the constitutional review of laws and acts, and domestic judiciary courts will enforce the ECHR so long as it does not infringe on the rights enshrined in the Italian Constitution. Finally, there is a different level of awareness about the ECHR system between the national courts in the two countries and in academic circles. In .

96

O. Pfersmann, ‘Concrete Review as Indirect Constitutional Complaint in French Constitutional Law. A Comparative Perspective’ (2010) 6(2) European Constitutional Law Review 223-248 at 224-225, footnote 5; the author points out that transforming the Declaration of 1789 and the Preamble of the Constitution of 1946 into formally constitutional documents, ‘the Constitutional Council modified the Constitution without having been empowered to do so’.

97

S. Santoli, ‘La disapplicazione di leggi ordinarie in contrasto con la CEDU in Italia e in Francia’ [2002] Giurisprudenza costituzionale 2227-2243.

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France, human rights law developed as an independent academic discipline in the early 1960s.98 This facilitated the emergence of an academic community of ECHR law experts that does not yet have a parallel in Italy, where ECHR law is taught in the framework of public international law courses. On the other hand, EU law has developed as distinct domain of scholarship since the end of the 1960s in both Italy and France. The first specialists had a public law or international law background because the Italian and French judiciary initially considered Community law a variety of international law, due to the lack of constitutional provisions dedicated to the relationship between the national and Community legal orders.99 Together with judges and the Advocates General of the ECJ, who often assumed the role of academic commentators, they formed ‘a sort of legal lobby in support of ECJ jurisprudence and ECJ authority’.100 As for the reception of EU law in the national legal order, despite the fact that France is a monist country and the French Constitution makes international law supreme to national law, the highest Courts were not friendly to the EU law supremacy principle. In Italy, the doctrine of dualism meant that EU law could not prevail over later legislative enactments. Even so, over the years, the Italian Constitutional Court has recognised the supremacy of EU law over subsequent national legislation, although the fundamental principles of the Italian constitutional order are proclaimed.

98

According to K. Vasak in ‘Tendances de l’enseignement des droits de l’homme dans les universités’ [1972] Revue des droits de l’homme 7, a course on domestic human rights was introduced under the name of liberté publique in 1948, and the first specific course on international human rights law was taught in 1963 in the University of Strasbourg.

99

Both Constitutions have since been amended. As mentioned above, the new Article 117 of the Italian Constitution establishes the respect of European Union law as requirement of legitimacy of legislative action, and Title XV on the European Communities and the European Union was introduced into the French Constitution by constitutional law No. 92-554 in order to enable the ratification of the Treaty on European Union.

100

K .J. Alter, Establishing the Supremacy of European Law: The Making of a International Rule of Law in Europe, cit., p. 58.

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Property in the Italian and French Legal Traditions

chapter 4

property in the italian and french legal traditions

Introduction The Italian and French institutions of property ownership have common historical and philosophical foundations. The concept of the right of property that became the cornerstone of the modern codifications in the two countries was developed through the Roman law notion of dominium, which symbolised the exclusive, perpetual, and sovereign right on a thing. In the late seventeenth century and in the eighteenth century, natural law scholars had completed the transition from the idea of a right-duty, which was so characteristic of medieval legal thinking, to that of a right-freedom.1 The individual thus became the centre du monde, and the right of property was aimed at satisfying his needs within a secular world.2 The markedly individualistic nature of the right of property, and of private law in general, that was written in the French codification of 1804, as well as in other codifications of the same period, such as the Italian civil code of 1865, was challenged at the end of the nineteenth century by socially oriented legal thinkers.3 The Austrian philosopher and jurist Anton Menger was one of the most distinguished exponents of the new wave of legal thought inspired by social ideas. He criticised the existing legal orders because they protected the interests of the ruling classes, and advanced a proposal for legislative reforms to allow the transition towards a democratic State founded on labour. 4 The historic development of social legal thought took place in two stages. In the first stage, scholars criticised existing laws and insisted on the need to improve the position of the working classes and to eliminate inequalities and inequities. In the second stage, they took a more positive stance, and advanced proposals on the criteria to be followed by the legislature to enact socially oriented legal reforms.5 Each author developed his own view of what changes 1

M.-F. Renoux-Zagame, ‘Du droit de Dieu au droit de l’homme: sur les origines théologiques du concept moderne de propriété’ (1985) Droits, especially at 31.

2 3

A.-M. Patault, Introduction historique au droit des biens (Paris: PUF, 1989), especially at p. 142.

According to D. Kennedy, ‘Three Globalizations of the Law and Legal Thought: 1850-2000’, in D. Trubek and A. Santos (eds.), The New Law and Economic Development. A Critical Appraisal (Cambridge: Cambridge University Press, 2006), pp. 19-73; the social as mode of thought dominated the years between 1900 and 1968.

4

His theories were criticised in particular by Friedrich Engels and Karl Kautsky in an article entitlted ‘Juristen-Sozialismus’, published in 1887 on Neu Zeit, namely the official periodical of the German social democracy. They objected that Menger was turning socialism into a legal philosophy. See G. Orrù, ‘‘Idealismo’ e ‘realismo’ nel socialismo giuridico di Menger’ (1974-75) Quaderni fiorentini per la storia del pensiero giuridico moderno.

5

F. Cosentini, La riforma della legislazione civile (Modena: Società tipografica modenese, 1911), pp. 278-279; Cosentini quotes Fichte, Ogilvie, Proudhon, Stuart Mill, Toullier, and Lassalle as the promoters of the movement and then refers to Stammler, Schröder, Grünhut, Stein, Wolf, Jellinek, Massow, Sombart, Lotmar, Vollmar, Herkner, Gierke, Schlossmann, Glasson, Duguit, Jaurès, Bourgeois, Gabba, Gianturco, Cimbali, Salvioli, Vivante, Tortori, D’Aguanno, and Abatelongo as a select group of authors

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were needed. Legal socialism thus included a broad range of reformist theories. The trait d’union between them was that each took a stance on the social question.6 However, legal socialism was a middle-class movement and thus was not a vehicle for the social expectations of the working classes. Accordingly, social thinkers did not look for reforms that would have produced fundamental social and economic changes. An emblematic figure of French legal socialism, whose theories were echoed in Italy, was Léon Duguit. Following Auguste Comte’s social philosophy and Émile Durkheim’s doctrines, Duguit postulated the social nature of individuals and considered social interdependence to be the foundation of legal norms.7 He maintained that the law derived its legitimacy not from the State, but from the factual interdependence that connects individuals with each other, on the basis of community needs and the division of labour. Social solidarity as the place of integration of individual interests became the condition of development and satisfaction of each individual interest. The purpose of the legal order was no longer understood in terms of protection of individual wills, but in terms of safeguarding and encouraging the public interest, namely through the social function pursued by each individual will. The criticism levelled towards the notion of subjective right also affected the notion of the right of property. In Duguit’s words: ‘la propriété individuelle cesse d’être un droit de l’individu pour devenir une fonction sociale’.8 In Italy, the influence of social legal thought, broadly interpreted, can be found in both the Constitution of 1948 and in the Civil Code of 1942. Since the Christian Democrats were the strongest group in the Constituent Assembly of 1947, the Constitution reflects some of the principles of Christian social doctrine, as well as social notions advanced by leftists parties. The preparatory works for a new civil code in Italy began at the end of World War I, but they entered into a crucial phase only during the last years of the with regard to the second stage of development of legal socialism. For an extensive bibliography of the Italian literature on legal socialism, see M. Sbriccoli, Elementi per una bibliografia del socialismo giuridico italiano (Milano: Giuffrè, 1976); E. Bruni, Socialismo e diritto privato (Palermo: Sandron, 1907); P. Ungari, ‘In memoria del socialismo giuridico. II-Crisi e tramonto del movimento’ (1970) Politica del diritto 387-403. It has to be stressed that legal socialism was criticised by both renowned rightist and leftist jurists including, for instance, F. Filomusi-Guelfi, C. Nani, C. Treves, S. Panunzio, A. Loria, and A. Labriola. 6

For more details see, M. Cascavilla, Il socialismo giuridico italiano. Sui fondamenti del riformismo sociale (Urbino: Quattro Venti, 1987).

7

L. Duguit, Les transformations générales du droit privé depuis le code Napoléon, (Paris: Memoire Du Droit, 2nd ed., 1920), p. 18, according to whom ‘l’homme est un être social; il ne peut vivre qu’en société; il a toujours vécu en société’.

8

 Ibidem, pp. 148-149. For an analysis of the genesis of Duguit’s social function doctrine and how this doctrine eventually migrated into contemporary legal systems around the world, see M.C. Mirow, ‘The Social-Obligation Norm of Property: Duguit, Hayem and Others’ (2010) 22 Florida Journal of International Law 191-226.

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fascist regime. Fascism did not have any faith in the individual, and rejected liberalism, in the name of corporativism and conservative as well as authoritarian social doctrines. Although several articles of the civil code reflected fascist politics and ideology, the formalist trends that distinguished the Italian legal culture of the time prevented fascist legal doctrines from having a pervasive influence over the entire codification process.9 After the fall of the fascist regime, racial and corporative norms included in the civil code of 1942 were thus abrogated, and the codice civile remained in force. This code, as it will be seen, shows traces of socially oriented doctrines with respect to property too, which tend to overcome the classical idea of property as an individual right. In France the Civil Code was already well-established by the time social legal movements began to unfold. Therefore the socialization of French private law occurred mainly through judicial doctrines developed by courts in alliance with progressive scholars who rejected the individualistic doctrines of the Civil Code.10 The influence of social legal thought in France is also attested in the legislation11 and in the text of the Constitution approved by the French Constituent Assembly on April 19, 1946. That constitutional text proposed to subordinate the right of property to social utility. Moving away from the principle of the sacredness of the right of property proclaimed in the Declaration of 1789, Article 35 of that constitutional document provided that ‘La propriété est le droit inviolable d’user, de jouir et de disposer des biens garantis a chacun par la loi. Tout homme doit pouvoir y accéder par le travail et par l’épargne. Nul ne saurait en être privé si ce n’est pour cause d’utilité publique légalement constatée et sous la condition d’une juste indemnité fixée conformément à la loi’. 9

See, F. Cammisa, Unificazione italiana e formalismo giuridico (Napoli: Jovene, 1996). Also see R. Teti, Codice civile e regime fascista: Sull’unificazione del diritto privato (Milano: Giuffrè, 1990). After stressing the political will to write a fascist code, Teti suggests two main reasons for the failure of that project. The first was the hostility of the majority of the jurists, especially of those expert in private law, towards fascist ideology. The second goes back to the political nature of the fascist revolution. The fascist regime did not realize a social revolution, but only a political one. Accordingly, fascist ideology affected mostly public law, while its influence on the structure of private law was much more limited.

10

G. Solari, Socialismo e diritto privato. Influenza delle odierne dottrine socialiste sul diritto privato (1906), Posthumous ed. (Milano: Giuffrè, 1980), especially at pp. 251 ff.

11

As John Bell remarks, even though ‘much of the conceptual language in which property is described stems from Roman law’, ‘[c]ontemporary French property law is the product of a number of influences’. In particular, the Author points out that social thought gave policy direction to property law during the social welfare reforms of the 1930s onwards. Furthermore, nationalization had an impact in creating new categories of publicly owned property. Cfr. J. Bell, S. Boyron and S. Whittaker (eds.), Principles of French Law (Oxford: Oxford University Press, 2nd ed., 2008), pp. 269-270. For an overview of the legislation adopted at the beginning of the 1900s on the basis of the principle of social or national solidarity, see M. Borgetto, La notion de fraternité en droit public français: Le passé, le présent et l’avenir de la solidarité (Paris: L.G.D.J., 1993), especially at pp. 380-382.

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Article 36 of the same text recited: ‘Le droit de propriété ne saurait être exercé contrairement à l’utilité sociale ou de manière à porter préjudice à la sûreté, à la liberté, à l’existence ou à la propriété d’autrui. Tout bien, toute entreprise dont l’exploitation a ou acquiert les caractères d’un service public national ou d’un monopole de fait doit devenir la propriété de la collectivité’.

This Constitution, however, never came into force because it was rejected by a referendum which was won by a narrow margin by the political parties opposing a people’s democracy. During the draft of the Constitution of 1958, the proposal to include in the Preamble a provision stating that restrictions to property rights could be imposed only for imperative reasons when required by the common good was revived. In the end, however, this proposal was rejected too, because the reference to common good as both foundation and limit of the regulatory power of the State was considered to be inappropriate.12 Social legal thought thus contributed to the profound transformation of French public law and private law that took place in the first decades of the 1900s, especially through the popularisation of the concepts of solidarity and social risk. Without any ambition to provide an exhaustive analysis of the right of property in the Italian and French legal orders, the following paragraphs outline the main issues raised by the protection of the right of property, to provide the legal and cultural framework against which the modern concept of property has been developed by judges and scholars.



1 The Right of Property as a Social-Economic Institution in the Italian Legal System

In this section, the focus will be on the basic sources of property law in the Italian legal order, namely the civil code enacted in 1942 and the Constitution of 1948. This is not to deny the importance and the practical impact of the so called leggi speciali, namely of statutes that regulate specific property issues. On the contrary, it is clear that it is mostly through this type of legislation that property is regulated today. But it is true that they are unrelated to the civil code insofar as they fall within the broad discretion left to the legislature in economic matters. In other words, it is difficult to find a logical connection between constitutional provisions, the civil code and this legislation, which is rather pointillist, and defies coherent treatment.13 12

G. Merland, L’intérêt général dans la jurisprudence du Conseil Constitutionnel (Paris: L.G.D.J., 2004), at pp. 57-58; Merland argues that the notion of general interest, to which the concept of common good is related, is unsuitable to serve as a limit for the legislature.

13

See on this point: A. Gambaro, Il diritto di proprietà (Milano: Giuffrè, 1995), especially at pp. 6-10.

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Despite their very different political inspiration, both the civil code of 1942 and the constitution of 1948 have been influenced by the debate on the social dimension of law that was coming to an end in the historical period during which they were drafted. However, the idea that legal institutions play a social function was still in the minds of the early interpreters of those texts. The civil code of 1942 broke with the individualistic approach that permeated the previous code of 1865 by considering the individual as an organic part of a social body, and as such must pursue the general interest.14 The drafters of the Code stressed that all rights granted to individuals must pursue social purposes. According to this political view, the protection that the legal order affords to the individual’s interest is not to advance the self-serving interest of the individual alone, but provides instead a direct or indirect protection of the national interest. This is because there is to be harmony instead of conflict between private and public interests.15 The regulation of property rights within the civil code was thus fashioned under the influence of the corporative concept of solidarity, which finds its fulfilment in the coordination and sacrifice of individual interests to the superior interest of the nation. The drafters maintained, in particular, that the principle of solidarity between private parties led to specific duties and obligations linked to the exercise of the right of property, such as the prohibition against carrying out activities having the sole purpose of inflicting harm to others (i.e., the so-called emulative acts).16 The ideological emphasis on the functional link between the individual and the community to which he belongs explains the social nature of law, and the subordination of individual interests to the greater social interest. Accordingly, the right of property was considered to have a social purpose as all other rights did.17 The clear implication of this approach is that the public interest sets out not only the limits, but also the content of the right of property.18 The idea of property supported by this approach is that, although property remains a unitary right,19 it is a right that is differently shaped by (and depen14

Indeed, the drafters of the Civil Code rejected the notion of citizen as outlined by the doctrine of the French Revolution (namely as the holder of innate, inviolable, and inalienable rights) because they considered it as already replaced by the emerging figure of the producer, namely a person who takes an active part in promoting the strengthening and economic growth of the country. See Relazione al Re (hereafter R.R.), in Commissione Ministeriale per la Riforma del Codice Civile, Disposizioni per l’attuazione del libro del codice civile “Della proprietà” e disposizioni transitorie: illustrate con la relazione al Re Imperatore (Milano: Giuffrè, 1941), pp. 42-43, point No. 13.

15

 R .R., point No. 6.

16

 R .R., point No. 408. The prohibition of an emulative act is set out in Art. 833 c.c. The doctrine repressing this act was not new, of course. It antedated the civil code of 1942, having its roots in the mediaeval period.

17

 R .R., p. 69, point No. 21.

18

See R.R., pp. 70-71, point No. 24.

19

See R.R., p. 72, point No. 27, where the drafters clarify that there is only one concept of the right of property by explaining that the notions of limits and obligations, which vary according to the nature of the assets concerned, are inherent to the very concept of property.

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dant on) the requirements of the public interest, which are different with respect to the different categories of assets.20 Accordingly, Article 832 of the Civil Code defines the right of property by reference to the powers of the owner, rather that to the content of the right itself. More precisely, the article in question provides that ‘the owner has the right to use and dispose of his assets fully and exclusively within the limits and with the observance of the duties established by the legal order’. The notion of duty gave a new connotation to the right of property. Unlike the concept of limit, duty entails a positive requirement for the owner. To gain a better understanding of the scope of the concept of duty with regard to the notion of property of the Civil Code of 1942 one should consider Articles 81121 and 838 c.c. The former required the owner to use his property according to the needs of national production22, whereas Article 838 carries the fascist ideology of property under which the State reserves to itself the right to interfere with, and to expropriate, private properties that are abandoned, or unsatisfactorily used.23 This article grounds the duty imposed to an owner to use his property efficiently, to satisfy the general interest and to meet his correlative responsibility towards the State. Even though this provision is still in force, it is virtually dead letter, because it has not been invoked in practice.24 The idea that property is justified as an institution insofar as it is conducive to the realisation of the public interest does not disappear in the aftermath of the adoption of the Republican Constitution. In the 1950s, Salvatore Pugliatti, one of the towering figures in the field of private law in Italy, analysed the structure of the modern right of property in the following terms. Considering that law is the basis of each right, and that the law advances the general interest, the inner limit that defines the right of property lies in the balance point between the private interest, to which the law affords protection, and the public interest that grounds the protection itself.25 In practical terms, the right of each individual 20

A. Gambaro, ‘Salvatore Pugliatti e la proprietà moderna’ (2003) Rivista di diritto civile 6; Gambaro points out that ‘è in relazione alle cose infatti che si manifesta il punto di equilibrio tra interesse pubblico ed interesse individuale, poiché se il rapporto tra i due è una costante non si tratta tuttavia di un rapporto tra valori costanti, ma eminentemente variabili in funzione, appunto, delle diverse categoria di beni’.

21

Article 811 c.c. was repealed by d.lgs.lgt. No. 287 of September 14, 1944.

22 23

In the R.R., point No. 386, it was stressed that the owners of those properties had positive obligations.

Fascist ideology and the corporative idea of State were especially concerned with property productivity and economic solidarity in the superior interest of the Nation. Accordingly, Article 838 c.c. allows for properties affecting the national production to be expropriated from owners who abandon the maintenance, cultivation, or running of those properties. The same provision applies if the deterioration of the property has the effect of seriously prejudicing the appearance of cities or considerations of art, history, or public health.

24

The idea that the right of property has a social function consisting in the growth of national production is also featuring in other articles of the civil code. For a close examination, see A. Donati, La concezione della giustizia nella vigente costituzione (Napoli: Edizioni scientifiche italiane, 1998), pp. 334-341.

25

S. Pugliatti, La proprietà nel nuovo diritto (Milano: Giuffrè, 1954), p. 4.

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to enjoy and to use his own property is thus regulated by norms that foster interests that are not those of the right holder. The Italian Constitutional Court was sympathetic with this approach when it subscribed to the notion that the legal concept of the right of property is founded in the idea of its adaptation to social needs, so the relative nature of the right itself is established by the respect to those needs. It follows that proprietary interests must not override the public interest.26 However, the Court clarified that the right of property had not become a public function 27 even though it has a social function for the protection of social or public interests. 28 In the same vein the right of property is considered to be a ‘subjective right that can be lawfully restricted only when so required by the “social function”’; this notion ‘indicates, besides the ensemble of the powers afforded to the owner, the duty to contribute to the fulfilment of general interests’.29 The constitutional protection of the right of property is contained in Title III of the Constitution of 1948, concerning economic relations. In particular, Article 42 protects both public and private property, as well as the right of succession. Unlike the Statuto Albertino of 1848, which was the constitution of the Kingdom of Italy, the Republican Constitution of 1947 does not proclaim the inviolability of private property.30 On the contrary, Article 42 of the present Constitution provides that restrictions to the right of property may be imposed to achieve its social function, which is a point of contact between the individual and general interest. Alongside the general principles set out in this article, other constitutional provisions lay out specific property rules with regard to particular social interests attached to certain categories of property. Art. 41 proclaims the freedom of enterprise; Art. 43 of the Constitution states that the property of enterprises operating in the field of essential public services, such as energy sources or monopolies that are of general public interest, may be reserved or compulsorily transferred by the legislature to the 26 27

Constitutional Court, 21 April 1971, judgment No. 79.

Constitutional Court, 15 July 1983, judgment No. 252, (1983) Foro italiano I, 2628. The question of constitutionality brought before the Court concerned legislation on tenancy according to which the landlord had the right not to renew the contract at the end of the four-year period provided by law. According to the referral judges, the provision was contrary to the principle of the social function of property. Rejecting the question of constitutionality, the Constitutional Court held that the right of property had not become a public function.

28

Constitutional Court, 13 July 1990, judgment No. 328.

29

Constitutional Court, 23 April 1986, judgment No. 108, (1986) Foro italiano I, 1145. This judgment declared that legislation providing for the compulsory prolongation of non residential leases was contrary to Articles 3 and 42 Cost.

30

The Statuto Albertino was the common name of the constitution in force in the Kingdom of Sardinia, and then in the Kingdom of Italy. Article 29 of that text provided that all properties were inviolable; yet, despite that solemn proclamation, legislation interfering with property rights could be subject to judicial review.

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State, or a public agency, or a workers’ or users’ association, with the provision of compensation. Article 44, on landed property, grants to the legislature a broad regulatory power that includes the power to impose on the owner obligations to act.31 Furthermore, Article 47 proclaims that the Republic promotes house and farm ownership. The collocation of these provisions under the title of the Constitution devoted to economic relations – highlights the importance of the right of property in the production and the allocation of resources, but also severs every link between property and liberty or personhood.32 The rationale for the constitutional protection of the right of property can then be found in the guarantee of the functionality of the national socio-economic system. Generally speaking, the rules under Title III of the Constitution are governed by the principles of solidarity and subsidiarity. Solidarity regards the relationships between individuals, and implies that the individual’s rights can be potentially restricted by another individual’s rights or interests. Thus, under Art. 41 Cost., the right to pursue an economic activity ‘may not be carried out against the common good or in such a manner that could prejudice safety, liberty and human dignity’.33 Private property rights can therefore be restricted to ensure the social function of property, and to make it accessible to all, and property can also be expropriated for reasons of general interest.34 Moreover, obligations and constraints can be imposed upon private owners of land to advance ‘the rational use of land and equitable social relationships’.35 Subsidiarity confers to the public power an active role for the purpose of achieving social cohesion. For instance, with regard to private economic initiatives, ‘the law shall provide for appropriate programs and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes’.36 Furthermore, according to Article 47, the State ‘regulates, co-ordinates and oversees the operation of credit’ and ‘promotes house and farm ownership and direct and indirect shareholding in the main national enterprises through the use of private savings’. 31

The inclusion of such a provision in the text of the Constitution was questioned by the drafters because the possibility of imposing obligations on private owners and restricting the exercise of the right of property when so required by the general interest was already implied in the social function clause stated in Article 42. Article 44 is thus to be read as political commitment to the implementation of agrarian reforms that had been debated by the political class since the end of World War I.

32

The opportunity to link the protection of private property to the safeguarding of personal freedom was discussed during the drafting of the Constitution. However, it was stressed that establishing such a link could have been interpreted as a return to a strictly individualistic concept of property and, moreover, would have prevented the legislature from establishing different property regimes. On that debate, see S. Rodotà, ‘La proprietà all’assemblea costituente’ (1979) Politica del diritto 395-440.

33

Article 41(2).

34 35

Article 42(2) and (3).

Article 44.

36

Article 41(3).

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In short, as far as the right of property is concerned, the principle of solidarity allows legislation that restricts the exercise of property rights, while the principle of subsidiarity calls for positive actions to achieve social cohesion.37 Solidarity is also a foundational principle of the ownership regime of the civil code but, as Pietro Perlingeri points out, the concept of solidarity that inspired the regulation of property ownership within the Civil Code of 1942 is related to economic and production needs; on the contrary, the notion of solidarity enshrined in art 3 of the Constitution is related primarily to the fulfilment of the person and to the respect of human dignity.38 On this point, the Christian Democratic group played a major role in the drafting process of the Constitution, so the Christian social notion of solidarity influenced the shaping of these constitutional economic principles.39 Nevertheless, Article 42 Cost. does not subscribe to an idea of property as a natural right closely connected with the human characteristic of being endowed with reason and the ethical principle of freedom, such as that traditionally defended by Catholic doctrine. 40 On the contrary, in the Italian Constitution the right of property is not grounded or connected to the guarantee of individual freedom at all. Article 1 Cost. proclaims that labour is the foundational value of the ethical-social system of the Republic. As a reflection of this, the issue of the minimum of subsistence for a ‘free and dignified existence’ is posed by Article 36 Cost. in terms of ‘sufficient wages’ rather than sufficient property. As it has been observed by Luca Perfetti, in the Italian legal order the guarantee of liberty depends on the inviolableness of the individual by the political power and on the citizens’ participation in the decision making process. The economic guarantee of liberty depends on the right to work. 41 Nonetheless, it is also true that Art. 42 Cost. recognises and guarantees the right to private property. The use of that verb is considered by some authors as concession to the idea that the right of property is a natural right. 42 37

For an overview of how these two principles have been implemented, see F. Lucarelli, ‘Il diritto di proprietà, valori costituzionali e valori condivisibili’, in M. Comporti (ed.), La proprietà nella Carta europea dei diritti fondamentali: Atti del convegno di studi organizzato presso l’Università degli studi di Siena: Siena 18-19 ottobre 2002 (Milano: Giuffrè, 2005).

38

P. Perlingeri, Introduzione alla problematica della ‘proprietà’ (Napoli: Jovene, 1971), p. 65.

39

The origins of the social doctrine of the Church date back to the thought of Saint Thomas of Aquinas. On the social and economic doctrine of the Church, see especially the encyclicals Rerum Novarum by Pope Leo XIII and Quadragesimo Anno by Pope Pius XI, available at .

40 41

See Rerum Novarum, especially para. 6-8.

L. Perfetti, ‘Libertà economiche e loro funzione sociale nel disegno della Carta costituzionale’ (1989) Iustitia 170-194 at 175.

42

U. Coli, Commentario sistematico alla Costituzione Italiana (Firenze: G. Barbera, 1950), especially at p. 360; P. Rescigno, ‘Per uno studio sulla proprietà’ (1972) Rivista di diritto civile 1-67, especially at pp. 36-38; A. Lener’s comment in F. Santoro-Passarelli (ed.), Proprietà privata e funzione sociale (Padova: Cedam, 1976), p. 18.

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1.1 The Concept of Property

The scope of Article 42 Cost. covers both tangible and intangible property43 to the exclusion of pecuniary claims. Accordingly, in a case concerning the constitutionality of rules governing the calculation of the amount of a war pension, the Constitutional Court declared irrelevant a reference to Article 42 Cost. because ‘the constitutional concept of property, although wider than the private law ones, does not include claims’. 44 Likewise, in a case concerning the constitutionality of legislation conferring contractual discretion to public authorities, the Constitutional Court held that Article 42 Cost. concerns only the protection of property rights, and does not protect contractual rights. 45 Some obligational rights have nevertheless been considered as property by the Court of Cassation, such as company shares. These are classified as intangible property since they have economic value and may be an object of rights. 46



2 The Right of Property as a Fundamental Right and Freedom in the French Legal System

The Preamble of the Constitution of 1958 solemnly proclaims the attachment of the French people to the Declaration of the Rights of Man and the Citizen of 1789 (hereafter, the Declaration of 1789). Art. 2 of that famous text lists the right of property side by side with liberty among ‘the natural and imprescriptible rights of man’ that every political association aims to preserve. Then, Article 17 of the Declaration guarantees the right of property in the following terms: ‘since the right to Property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid’. 47 For a long time, the principles enshrined in the Declaration of 1789 did not really bite, however, given the theory that Parliamentary legislation is the authentic expression of the general will. Throughout the nineteenth century, and well into the twentieth century, legislation could not be invalidated in France on the grounds that it infringed a fundamental right. In the light of this remark, one can say that the recognition of a constitutional right of property, as well as the recognition of a category of fundamental rights that are constitutionally protected, is much more recent in the France. 43

See Constitutional, Court 7 May 2002, judgment No. 155, (2002) Foro italiano I, 2237, concerning broadcasting rights; and judgment No. 108 of 6 April 1995, (1995) Foro italiano I, 1724, concerning intellectual property rights.

44 45

Constitutional Court, 29 June 1995, judgment No. 288, (1995) Cons. Stato II, 1011.

Constitutional Court, 17 March 2000, judgment No. 70, (2000) Foro italiano I, 2389.

46

Court of Cassation, Civil Section I, 26 May 2000, judgment No. 6957, (2000) Giurisprudenza italiana 2309.

47

My translation.

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The first decision rendered by the Constitutional Council holding that an act of Parliament violated a constitutionally guaranteed freedom dates to 1971. 48 The recognition of the right of property as a constitutional right came about ten years later. Ruling on the Nationalisation Act of 1982 the Constitutional Council affirmed both the constitutional value and fundamental nature of the right of property, which required the transfer to the State of the entire privately owned stock of nationalised companies. The constitutionality of the act was disputed on many grounds, including the infringement of the right of property. The Constitutional Council considered that the right at issue, as proclaimed by Article 17 of the Declaration of 1789, enjoyed constitutional protection under the Constitution of 1958. 49 In the words of the Constitutional Council: ‘the very principles stated by the Declaration of the Rights of Man and the Citizen have full constitutional value. This is true for both the fundamental character of the right of property, the preservation of which is one of the aim of political society and which has the same rank as liberty, security and resistance to oppression and for the guarantees to be given to the holders of these rights and for the prerogatives of public authorities’.50

Once the constitutional protection of the right of property was established, the Constitutional Council started to develop principles aiming at protecting property rights against both positive and negative arbitrary interferences. With regards to the latter, since Art. 34 Cost. reserves to Parliament the task of establishing the basic principles of property ownership, the Constitutional Council held that the omission of legislative measures providing for guarantees suitable to prevent acts impairing property rights was contrary to the Constitution. The Constitutional Council applied this principle to decide over the constitutionality of Art. L. 332-6-1,2°, e) of the town planning code (Code de l’urbanisme), which granted the local authorities the power to subordinate the issue of a 48

Constitutional Council, 16 July 1971, decision No. 71-44 DC, Rec. 29. The Senate challenged the constitutionality of a law allowing prefects to withhold recognition from associations that appeared to have an immoral or illicit purpose, or that attempted to reconstitute an illegal association. The Constitutional Council held that this provision was unconstitutional, being contrary to the freedom of association.

49

Constitutional Council, 16 January 1982, decision No. 81-132 DC, Rec. 18. The Council held that the right of property was protected under the Constitution by drawing arguments from the debates on the constitutional reform project of 1946. In particular, the Council stressed that a first draft including a new Declaration of the Rights of Man containing principles different from those affirmed in 1789 had been rejected by a referendum. Then, it disagree with the view of some commentators who held that Art. 17 of the 1789 Declaration was obsolete in the light of the historical evolution since the nineteenth century. The Council held instead that by two referendums of 1946 and 1958, the French people had approved texts giving full constitutional value to the principles and rights proclaimed in 1789, as shown by the 1946 and 1958 Preambles to both Constitutions (para 16).

50

Ibidem, para 16.

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permit to build to the free transfer, by the applicant, of a portion of his land. Even though this provision had once passed the contrôle de conventionnalité of the Council of State,51 the Court of Cassation referred on it a question of constitutionality to the Constitutional Council. The Constitutional Council declared that the legislator failed in its duty by allowing local authorities broad discretion in the application of the challenged provision of law, without providing the appropriate guarantees for the right of property.52 As for positive interferences, Art. 17 of the Declaration of 1789 sets down the conditions for deprivation of property, namely the existence of a reason of legally ascertained public necessity and the prior payment of a just indemnity. The public necessity requirement was soon replaced by the requirement of public utility.53 This can be ascertained without a direct intervention of the legislature; it is sufficient that the latter provides for the administrative procedure to assess the public utility.54 The requirement of just indemnity is met when the amount paid covers all the direct, material, and certain losses arising from expropriation.55 It follows that, in principle, non-pecuniary damages cannot be compensated because of the special significance that the expropriated property had for its owner. On the basis of this principle, judiciary courts exclude the compensation of the distress deriving, for instance, from being forced to leave a house owned for over fifty years,56 the loss of the ability to enjoy an archaeological treasure located on the property,57 or the breaking of the family unity after the expropriation of several buildings in which the members of the family lived.58 The principle under discussion is now written in a legislative text. Art. L13-13 of the Code on expropriation provides that compensation must cover the entire direct, material, and certain losses arising from expropriation. The Constitutional Council has recently ruled that this provision is constitutional because the Constitution does not require the State to repair the distress suffered by the owner for the loss of the expropriated property.59 51

Council of State, 11 February 2001, no. 2111510.

52

Constitutional Council, 22 September 2010, decision no. 2010-33 QPC, in J.O. of 23 September 2010, p. 17292.

53

J.-F. Couzinet, ‘De la nécessité publique à l’utilité publique: les évolutions du fait justificatif de l’expropriation’, in G. Koubi (ed.) Révolution et propriété. Actes du colloque de Toulose, 12 et 14 octobre 1989 (Paris : Éditions du Centre national de la recherche scientifique, 1990), p. 197.

54

For a detailed analysis of the case law on this point, see C.-S. Marchiani, Le monopole de l’État sur l’expropriation (Paris: L.G.D.J., 2008) pp. 119 ff.

55

Constitutional Council 25 July 1989, decision no. 89-256 DC, in Rec. p. 9501. As remarked by John Bell, the assessment of compensation lays with the civil judge, which has always been looked upon as ‘the guardian of the rights of property-owners’. Cfr. L.N. Brown and J.S. Bell (eds.), French Administrative Law (Oxford: Clarendon Press, 5th ed., 1998), p. 144.

56 57

Court of Cassation, 30 May 1972, No. 71-70206, in Bull. civ. III, n° 335.

Court of Appeal of Toulouse, 26 March 2001, (2001) Les petites affiches, 13 août 2001 n° 160, p. 10.

58

Court of Cassation, expropriation temporary section, 29 October 1965, No. 70239, in Bull. civ V, n° 118.

59

Constitutional Council 20 January 2011, decision No. 2010-87 QPC, in J.O. of 22 January 2011, p. 1384, especially para. 5.

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Nevertheless, the case law of the ordinary courts shows that the interpretation of this principle is relative to the exclusion of the possibility of compensating non-economic losses. According to the courts, compensation must be calculated taking into account the market value of the expropriated property, as well as all the negative consequences directly arising from the expropriation. This means that compensation is allowed, for example, for the loss of economic value of the remaining property,60 the severance pay for dismissals which were a direct consequence of the expropriation,61 the loss of goodwill,62 and the loss of value of a castle due to the construction of a railway line on the nearby expropriated property.63 More generally, even though the loss of aesthetic value of a property is not, as such, eligible for compensation, the owner can obtain compensation for material damages if the loss of the amenity of his property is likely to cause a loss of the economic value of the property itself.64 To conclude, an owner can claim compensation for a wide range of incidental losses that are likely to affect his assets. The only losses that are not compensated are those relating to assets having idiosyncratic value, and those deriving from the loss of amenities with no impact on either the economic value of the expropriated property, or on that of the remaining property. Concerning the prior payment of an indemnity, the Constitutional Council accepts that where there are overriding reasons of general interest, and the law provides for adequate procedural guarantees, a interim payment is sufficient.65 To qualify as expropriation, the transfer of property must occur against the will of the owner66 and must deprive him of all ability to dispose of and use the

60 61

Court of Cassation, civil section III, 8 March 1995, No. 93-70312.

Court of Cassation, civil section III, 25 June 1997, No. 96-70030.

62 63

Court of Cassation, civil section III, 25 June 1997, No. 95-70257.

Court of Cassation, civil section III, 2 February 1999, No. 98-70011.

64

See M. Sousse, ‘Fasc. 400-16: Expropriation.- Indemnisation des personnes expropriées’, (2008) JurisClasseur administratif n° 64.

65

Constitutional Council 17 September 2010, decision No. 2010-26 QPC, in J.O. of 18 September 2010, p. 16951; concerning the law on expropriation of housing considered as irretrievably unhealthy by public authorities.

66

Constitutional Council 6 October 2010, decision No. 2010-43 QPC, in J.O. of 7 October 2010, p. 18155. To declare the constitutionality of Art. L 318-3 of the town planning code, which establishes that the transfer to State’s property of private roads open to the public do not require compensation, the Constitutional Council advanced the following arguments: the opening of the road to the public use as free choice of the owner is indicative of the latter’s will to waive his exclusive right to use the property; it follows that public authorities merely recognize to private roads open to public the ownership regime corresponding to their use; to the transfer follows that the works and costs of maintenance are at charge of the community; compensation may however be due if the transfer imposes special and excessive burdens on the owner of the road.

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property.67 Positive interferences with the exercise of the right of property that do not amount to deprivation of property must meet the requirements developed by the Constitutional Council on the basis of Art. 2 of the Declaration of 1789; namely, they must pursue an aim of general interest, be proportionate to the purpose, and not be so serious to denaturate the scope and meaning of the right of property. In addition to the status of a constitutional fundamental right, the right of property enjoys the status of a fundamental freedom that is conferred on it by the jurisprudence of the Council of State. The idea of the right of property in terms of the individual freedom to dispose of property is attested by the Declaration of 1789. Even though the Declaration portrays property and liberty as two distinct notions, the travaux préparatoires show that the drafters thought of the right of property as the freedom of the person to use and dispose of his property, and they considered its protection connected to that of individual liberty. Accordingly, during the drafting of the Declaration, the right of property was defined as the right of every individual to use and dispose of certain assets in an exclusive way, and to have access to property for his preservation and the satisfaction of his needs.68 The revival of the theory of property as a fundamental freedom in the jurisprudence of administrative courts is mainly linked to the introduction of the so-called référé-liberté proceeding from law No. 2000-597. Proceedings under this law aim to protect fundamental freedoms against serious and manifestly unlawful interferences by a public‑law entity, or an organisation acting under private law, but responsible for managing a public service.69 As it was perhaps inevitable, the new procedure originated a debate on the scope of the notion of fundamental freedoms.70 Such debate led to the conclusion that fundamental 67

The question of constitutionality concerned Art. 661 of the Civil Code on compulsory joint ownership of a boundary wall. The Constitutional Council held that though the said article brings about a change in the ownership regime of the wall, it does not deprive the original owner of the power of alienation and use of it. Therefore, Art. 17 of the Declaration of 1789 was not applicable as a parameter of constitutionality to this provision.

68

J.-L. Mestre, ‘La propriété, liberté fondamentale pour les Constituants de 1789’ (2004) Revue française de droit administratif 1-6.

69

Article L521-2, added to the Code of Administrative Justice by law No. 2000-597, states that ‘saisi d’une demande en ce sens justifiée par l’urgence, le juge des référés peut ordonner toutes mesures nécessaires à la sauvegarde d’une liberté fondamentale à laquelle une personne morale de droit public ou un organisme de droit privé chargé de la gestion d’un service public aurait porté, dans l’exercice d’un de ses pouvoirs, une atteinte grave et manifestement illégale. Le juge des référés se prononce dans un délai de quarante-huit heures’.

70

L. Favoreau, ‘La notion de liberté fondamentale devant le juge administratif des référés’ (2001) Dalloz chron., pp. 1739-1744; F. Brenet, ‘La notion de liberté fondamentale au sens de l’article L 521-2 du CJA’ (2003) Revue du droit public et de la science politique en France et à l’étranger 1535-1580 ; G. Glenard, ‘Les critères d’identification d’une liberté fondamentale au sens de l’article L 521-2 du CJA’ (2003) Actualité juridique de droit administratif 2008-2015.

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freedoms under Article L521-2 of the Code of Administrative Justice are to be defined in a functional way, and that the courts have a broad discretion to exercise in this respect.71 With regard to the right of property, academic commentators supported the idea of using the new procedure even though the right of property is not, stricto sensu, a freedom.72 Eventually, the Council of State, following the early jurisprudence under the new rule, affirmed the applicability of the procedure of référé-liberté to cases in which the contested interference concerned the ‘free disposal by an owner of his property’.73 The formula used by the Council of State attracted the attention of the scholars. Michel Verpeaux critically remarked that ‘un lien est ainsi directement opéré entre la situation d’un “propriétaire” et la libre disposition des biens, comme si être propriétaire signifiait principalement avoir la libre disposition de ses biens. Si l’affirmation paraît évidente, il faut se demander si le droit de propriété ne signifie que cela. Autrement dit, ce droit de propriété se résume-t-il à une seule et “simple” liberté ? Il est évident qu’une réponse positive va à l’encontre des conceptions sociales et utilitaristes de la propriété’.74

Finally, in 2003, the Council of State expressly held that the right of property is a fundamental freedom under Article L521-2 of the Code of Administrative Justice.75 The basis for an assimilation between the individual freedom to use and dispose of property and the right of property is also established by the jurisprudence of the Constitutional Council. In decision No. 98-403, the Constitutional Council considered that a procedure whereby a creditor could be obliged to purchase a property for a price determined by a judge was contrary to the right of property.76 To ground this finding, the Constitutional Council invoked the principle of freedom that should govern the acquisition and disposal of property.77 The value of liberty enshrined in the Declaration of 1789 underpins the concept of the right of property within both the constitutional and administrative jurisprudence. As it will now be explained, the philosophical principles extolled by the French Revolution influenced also the private law concept of ownership. 71

S. Platon, La coexistence des droits fondamentaux constitutionnels et européens dans l’ordre juridique français (Paris: L.G.D.J., 2008), p. 23.

72

R. Vandermeeren, ‘La réforme des procédures d’urgence devant le juge administratif’ (2000) Actualité juridique de droit administratif 706-721, especially at 713.

73

Council of States, Order No. 232208-232210, 9 April 2001; Order No. 234321, 1 June 2001.

74

M. Verpeaux, ‘Le juge administratif, gardien du droit de propriété’ (2003) Revue française de droit administratif 1096-1103 at 1100.

75

Council of State, 2 July 2003, decision No. 254536.

76 77

Constitutional Council, 29 July 1998, decision No. 98-403 DC, Rec., p. 276.

See especially para. 40 of the decision.

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From the Révolution of 1789, the drafters of the Civil Code inherited the idea that the right of property is one of the foundations of the social order, this is why they made it a core notion of French civil law.78 Jeanne Etienne Marie Portalis, who was Napoleon’s closest advisor during the drafting of the Civil Code, indicated the right of property as the universal soul of all legislation.79 As it defines the right of ownership as in plena re potestas, Article 544 of the French Civil Code is usually cited as the most complete expression of the individualistic conception of the right of property.80 However, the drafters of the Code intended as well to reconciliate the owner’s rights and the general interest.81 Thus, Article 544 allows the government to adopt regulations that restrict the exercise of property rights when it states that ‘ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations’. Moreover, considering the increasing number of restrictions to proprietary rights by means of public regulation of social and economic activities, modern scholars agree in affirming that the institution is undergoing a sort of regression.82 Even so, François Terré, using the words of Adolphe Thiers, describes property in terms of ‘a general, universal fact, which is increasing rather than decreasing’, and yet ‘the concept of ownership seems to have lost in intensity what it gained in scope’ since ‘the progress has promoted the renovation of the forms of ownership as well as the creation of new properties’.83 Recently, a new definition of the right of property was proposed in the draft reform project of Book II of the Civil Code proposed by the Association Henri Capitant.84 Following the tripartite formula that is reminiscent of the legacy of the Roman law, this text recites that property ‘is the exclusive and perpetual right to use, enjoy and dispose of goods and rights’, which ‘confers to the owner an absolute power subject to the laws that regulate it’. The reference to the absolute and perpetual nature of property ownership has been criticised by some scholars, who pointed out that these are no longer essential features of the right of property, as is exemplified by the case of intellectual property rights.85 78

See F. Zenati-Castaing, ‘La propriété, mécanisme fondamental du droit’ (2006) Revue trimestrielle de droit civil 445-466.

79

Portalis, ‘Présentation du titre “De la propriété” devant le Corps législatif’, in P.A. Fenet, Recueil complet des travaux préparatoires du Code Civil, 15 vols. (repr. Osnabrück: Zeller, 1968), vol. XI, p. 133.

80

R. Savatier, Les métamorphoses économiques et sociales du droit privé d’aujourd’hui (Paris: Dalloz, 2nd ed., 1959), pp. 5-6, for whom the freedom of the owner to do as he likes with his property is one of the three pillars that supports the entire construction of the Civil Code.

81

Portalis, ‘Présentation du titre “De la propriété” devant le Corps législatif’, cit., p. 117; Portalis stresses the need to regulate the exercise of the right of property in order to protect true freedom, which consists in a wise reconciliation between the rights of individuals and the common good.

82 83

F. Terré, ‘L’évolution du droit de propriété depuis le Code civil’ (1985) Droits 33 [my translation].

 Ibidem, p. 44 [my translation].

84

The Association drafted the proposed reform on its own initiative looking forward to the reform of the civil code.

85

W. Dross and B. Mallet-Bricout, ‘L’avant projet de réforme du droit des biens’ (2009) Recueil Dalloz chron. 508.

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2.1 An Evolutive Concept of Property

Recognising the constitutional status of the principles enshrined in Article 17 of the Declaration of 1789, the Constitutional Council highlighted that property rights have undergone major changes since 1789, such as the extension of their scope of application or, alternatively, repeated restrictions on their scope as required by public interest.86 In this way, the Council clarified that the guarantees of Article 17 also cover forms of property that the drafters of the Declaration did not mention, such as shares (which were the property at issue in that case), industrial and commercial property, 87 as well as intellectual property rights.88 Accordingly, intangible property and claims enjoy constitutional protection. For instance, the Constitutional Council considered that a creditor had a right of property in his claim in decision No. 99-425. Asked to review the constitutionality of the financial act of 1999, especially with regard to the compensation of holders of securities issued or guaranteed before November 1917 by the Russian Empire, the Council ruled that the legislation at issue was consistent with the ‘right of property of the claims holders’.89 In line with this jurisprudence, the French Court of Cassation decided that legislation rendering a pension available to the claims of a certain class of creditors only, was a discriminatory measure that impaired the rights of property of other creditors.90 However, some claims are not protected as property. For instance, the Constitutional Council upheld legislation depriving retired civil servants of the payment of their pension without providing for the payment of just and prior indemnity. The Council considered that that the right to pension benefits had statutory nature, and that it could be extinguished without infringing Article 17 of the Declaration.91 Likewise, the Council did not consider as property the 86 87

Constitutional Council, 16 January 1982, decision No. 81-132 DC, para. 16.

The Constitutional Council found that the constitutional protection for property rights applies to cases involving legislative measures that restrict the use of a brand by its owner, or that allow competing business firms to mention the brand of third parties for purposes of comparative advertising. See, respectively, Constitutional Council, 8 January 1991, decision 90-283 DC, Rec. p. 11, and 15 January 1992, decision 91-303 DC, Rec. p. 15.

88

Constitutional Council, 27 July 2006, decision No. 2006-504 DC, Rec. p. 11541. At para. 15, the Council affirms that ‘[t]he purposes and conditions for exercising the right to property have since 1789 undergone changes in the form of an extension of the scope thereof to new fields; among the latter are to be found intellectual property rights and related rights in the information society’.

89

Constitutional Council, 29 December 1999, decision No. 99-425 DC, para. 23, Rec. p. 168. Claims enjoy to some extent the constitutional protection afforded to property rights, but this does not entail that they can be regarded as property. See J.-F. de Montgolfier, ‘Le Conseil constitutionnel et la propriété privée des personnes privées’, in Les nouveaux cahier du Conseil constitutionnel 2011, p. 39. Nevertheless, measures restricting or preventing the recovery of claims could impair the exercise of the right of property: Constitutional Council, 10 June 2010 decision no. 2010-607 DC, in J.O. of 16 June 2010, p. 10988.

90 91

Court of Cassation, Second Civil Chamber, 3 May 2007, appeal No. 05-19439, (2007) Bulletin II, No. 121.

Constitutional Council, 16 January 1986, decision No. 85-200 DC, Rec. p. 9.

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authorisation to operate public transport services granted to private companies92 or hydroelectric concessions.93 On the other hand, the notion of possessions developed by the ECtHR has exerted influence on the French administrative jurisprudence. The Council of State thus held that the concept of property included various economic claims, such as pensions and other individual welfare benefits.94 Moreover, as the right to peaceful enjoyment of possessions under Article P1-1 ECHR, the freedom to dispose of property can be invoked not only by the owner, but also by the user of the property. The Council of State thus ruled that the right of the tenant to dispose of the rented house is the corollary of the right of property, so it has the nature of a fundamental freedom within the scope of the référé-liberté procedure.95 Furthermore, when Article P1-1 ECHR is invoked as a parameter for the contrôle de conventionnalité before domestic judicial courts, those courts applies the concept of property developed by the ECtHR. A recent decision concerning the transfer of assets from a municipal district (section de communes) to the main municipality highlights the different approaches of the Constitutional Council and of the ordinary courts. The question of constitutionality arose because the legislature had failed to indemnify the inhabitants of the municipal district, who enjoyed the transferred properties. The Constitutional Council held that the question was badly formulated: only the municipal district could claim to own the transferred properties; the residents had a mere right to use that did not amount to a property right, although it had pecuniary value.96 This finding of the Constitutional Council is in marked contrast with the jurisprudence of the ECtHR. That jurisprudence extends the protection afforded by Art. P1-1 to a wide range of pecuniary interests, even though they derive from rights over common lands.97 Applying the ECtHR’s case law, the administrative courts of appeal of Bordeaux98 and 92 93

Constitutional Council, 30 December 1982, decision No. 82-150 DC, Rec. p. 4033.

Constitutional Council, 24 June 2011, decision No. 2011-141 QPC.

94

See R. Granjon, ‘L’effectivité de la protection: réflexion sur l’évolution jurisprudentielle’ (2003) Revue française de droit administratif 1104-1105.

95

Council of State, 29 March 2002, decision No. 243338. The Council observed that ‘le droit de propriété a, comme son corollaire qu’est le droit pour le locataire de disposer librement des biens pris à bail, le caractère d’une liberté fondamentale au sens de l’article L. 521-2 précité du code de justice administrative’.

96 97

Constitutional Council, 8 April 2011, decision No. 2011-118 QPC, J.O. of 9 April 2011, p. 6363.

App. No. 8803-8811/02, 8813/02 and 8815-8819/02, Dogan and Others v. Turkey [2004] ECtHR. The applicants complained about their forced eviction from their homes and the Turkish authorities’ refusal to allow them to return. The ECtHR considered that the economic resources and the revenue the applicants derived from their unchallenged rights over the common lands in the village were possessions for the purposes of Article P1-1.

98

Administrative Court of Appeal of Bordeaux, 2 June 2009, No. 08BX00816, (200) Actualité juridique de droit administratif, 1659.

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of Lyon99 had, before the Constitutional Council decision mentioned above, declared that the procedure of transfer of assets under discussion was contrary to the ECHR. According to the administrative courts, by depriving the residents of the municipal district of their pecuniary interests without paying them any indemnity, the national legislator failed to strike a just balance between the demands of the general interest of the community and the requirements of the protection of the individual’s property rights.



3 The Fundamental Nature of the Right of Property in Domestic Law

As mentioned above, the right of property enjoys constitutional protection in both Italy and France. Nevertheless, the Italian Constitutional Court and the French Constitutional Council approach the fundamental nature of the right in question from different perspectives. France considers the right of property as a fundamental constitutional right.100 In Italy, the category of fundamental rights, which has its basis on Article 2 Cost., includes those rights that protect values inherent to the person, and property is not one of such values.101 The opinion that the right of property is not included in the catalogue of the fundamental rights of the Italian Constitution received a first endorsement in an obiter dictum of the Constitutional Court in 1971.102 The question before the Court concerned the constitutionality of the penalties for theft established by the criminal code. The Court affirmed obiter that the protection of certain values is to be considered, unlike that of property, as a fundamental right under the Constitution; this denied the inclusion of the right of property among the constitutionally protected fundamental rights. However, the Constitutional Court has never taken up the issue of the right of property as a fundamental right directly. Through the years, the Italian Constitutional Court has recognised various rights that protect interests closely 99

Administrative Court of Appeal of Lyon, 24 November 2009, No. 07LY02310, (2010) Actualité juridique de droit administratif 559.

100

T his definition was also acknowledged by the Court of Cassation. See Court of Cassation, Civil Section, 4 January 1995, appeal No. 92-20013; 28 November 2006, appeal No. 04-19134.

101

A rticle 2 Cost. expresses the commitment to the respect of human rights, stating that ‘The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled’. The interpretation of this provision raises the issue of the nature of the article, namely whether it should be considered as a general clause that allows for the recognition of new rights or whether the Constitution protects only those rights specifically mentioned therein. For the interpretation adopted by the majority of the authors, see A.M. Sandulli, ‘Profili costituzionali della proprietà privata’ (1972) Rivista trimestrale di diritto e procedura civile 465-490.

102

Constitutional Court, 17 February 1971, judgment No. 22.

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related to personhood as a fundamental right of the person; these include, for instance, the right to health, the right of privacy, the right to family unity, and the right to personal identity. The circumstance that, after the Italian constitutional reform of 2001, the ECHR and the ECtHR’s case law have become parameters of constitutionality under Art. 117 Cost. does not seem to have radically altered the characterisation of the right of property under domestic law in the opinion of many. Indeed, the Court of Cassation recently stated that the Contracting States recognised the rights proclaimed by the Convention as fundamental rights within the domestic legal order with the ratification of the ECHR, except for those rights for which the State already provided a legal framework.103 Such is the case for the right of property. Referring to it, Paolo Maddalena, a judge of the Constitutional Court, suggested that if the ECtHR should rule that the right of property is an individual’s fundamental and inviolable right, the Constitutional Court would declare such a principle contrary to the Italian Constitution.104 To sum up, Italian courts deny that property is a fundamental right on the basis of a substantive approach by which they recognise as fundamental only those rights that protect interests and values consubstantial to the person. This case law is in line with the ideology of the drafters of the Constitution, whose text does not mention any link between values inherent to the person and the right of property. In their eyes, the function of property as a means to acquire the material basis necessary for the development of the person was vanishing within the transition from the liberal to the social State. The role of property as economic support for a free and dignified life faded away with the evolution of the Constitution.105 Accordingly, the Italian Constitution places the right of property within the framework of economic relations only. On the other hand the Constitutional Court now favours a broader interpretation of the notion of fundamental right by considering freedom of contract as a fundamental right of the person ‘instrumental to the freedom of economic activity’.106 The reasoning of the Court suggests that the freedom of contract derives its fundamental nature from the freedom of economic activity guaranteed by Article 41 Cost., which protects interests of a purely economic nature. This fresh line of thinking about constitutional fundamental rights may in the future bring about a new appraisal of the right of property in constitutional perspective. 103

Court of Cassation, 19 October 2006, order No. 22357, (2006) 44 Guida al diritto 16.

104

See the paper presented by P. Maddalena at the conference on the right of property in the jurisprudence of the Constitutional Court, held October 8-10, 2009 in Lisbon, available on the website of the Constitutional Court, http://www.cortecostituzionale.it/convegniSeminari.do.

105

See further on this issue, L. Mengoni, ‘Proprietà e libertà’ (1988) Rivista critica del diritto privato 427-447.

106

Constitutional Court, 25 November 2008, order No. 389, (2009) Foro italiano I, 1; 9 April 2009, order No. 110.

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To conclude, it can be said that the different approaches to the right of property by French and Italian courts reflects different approaches to the relations between individual values and the institution of property. Decision No. 81-132 of the French Constitutional Council, relates the fundamental nature of the right of property to the constitutional nature of the text in which it was proclaimed, but more recent constitutional and administrative decisions characterise the right of property as a fundamental right rather by linking individual liberty and property. So far, one would look in vain for such connection either in the text of the Italian Constitution or in the case law of the Italian Constitutional Court.

Conclusion Under the influence of social legal thought, both France and Italy began to develop an idea of property deeply intertwined with the social context, so public interest needs have become the first source of limits to the right of property. Therefore, both in Italy and France, the evolution of property law is closely related to the development of social policies that should advance the general interest. However, in the 1930s, legal socialism began to lose prestige, and the Italian constitutional doctrine of property’s social function proved to be more suitable for academic dissertations than for concrete applications.107 Even though the Italian Constitution provided the foundations for State intervention in the economy, politics played a minor role in economic governance up until the 1960s. That can also be seen through the constitutional case law. The Constitutional Court was, in those years, asked to decide the constitutionality of legislation concerning pools and government monopolies in the distribution of necessaries that had been adopted before the entry into force of the Constitution; its judgments clearly show its desire to leave radical choices in economic matters to the government.108 As a matter of fact, the reconstruction of the country and the economic recovery after the Second World War were entrusted mainly to the private sector, while economic planning became part of the political agenda only in the 1960’s, during the economic boom. The main example of this public intervention in the 107

Cf. S. Rodotà, Il terribile diritto: Studi sulla proprietà privata (Bologna: Il Mulino, 2nd ed., 1990), p. 269. Rodotà analysed the legislation implemented by governments and the case law developed by courts since the entry into force of the Constitution of 1947. He noted that the social function of property has been a topic for scholarly discussions, rather than a feature of discussions by judges and politicians.

108

Commenting upon the early case law concerning private property, Giovanni Bognetti remarks: ‘[o]ne is under the impression that at times the Court, when it sets aside statutory norms infringing upon the rights of property and economic freedom, does so because it tacitly assumes the legislature is no longer really interested in maintaining them”, see G. Bognetti, ‘The Political Role of the Italian Constitutional Court’ (1974) 49 Notre Dame Law Review 981-999 at 986.

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economy dates back to 1962 when the legislature passed a bill on the nationalization of companies and enterprises operating in the production, marketing, and distribution of electricity,109 which is a key sector for any productive activity. This is the only case of nationalization in the history of the Italian Republic.110 Then, to face the recession of the late 1960s, the Italian government had recourse to public expenditures to support welfare and absorb social conflicts. This choice of economic policy became radicalised as a typical feature of the Italian economic policy – so much so that in the 1990s the national debt reached unsustainable levels. In those years, the Treaties of Maastricht and Amsterdam transferred competence in monetary policy to the EU, banned state aids, and required Member States to restrain inflation and national debt. Thus, a radical reform of the national economy was inevitable. The season of privatization and liberalization then began, and the public regulation of private enterprise became preferred to public enterprise.111 As a result, the role of the State in the economy reduced so much that the mixed economic system laid down by the Italian Constitution surrendered to a market economy, and the social function clause attached to the right of property came to be used, ultimately, as political corrective for market failure.112 Despite the common cultural roots of the modern concept of the right of property, French property law developed along a different path. In the French legal tradition, the Civil Code has long been considered as the true constitution of the State. Accordingly, the Court of Cassation was for a long time the main guardian of the right of property, and the proclamation of the absolute nature of the right of property contained in Article 544 c.c. entailed a specific limit for the legislature. However, the absoluteness of the right of property soon had to be reconciled with the protection of conflicting interests and rights. Thus, even in the absence of an explicit assertion of the social function of the right of property, the existence of restrictions intrinsic to the nature of the right of property was affirmed.113 Furthermore, in 1982 the Constitutional Council proclaimed the constitutional nature of the right of property on the basis of a joint read109

L aw No.1643 of December 6, 1962, which established E.N.E.L. In judgment No. 14 of March 7, 1964, the Constitutional Court declared that this law was constitutional, clarifying that it rested with the Court to review the existence of the purposes of general public interest pursued by the law, but it was the sole discretion of the legislature to decide the measures to adopt to achieve those purposes.

110

Certain categories of assets or enterprises were originally reserved to the State already in the 1920s (sea and air transportation, mines, telephony, and broadcasting). In the same years, access to entrepreneurial activities was developed. See S. Cassese (ed.), La nuova costituzione economica (Bari: Editori Laterza, 4th ed., 2007), pp. 15 ff.

111

E. Freni, ‘Le privatizzazioni’, in S. Cassese (ed.), La nuova costituzione economica, cit., pp. 217-264; Freni observes that EU law played a significant role in the process of the transformation of public utilities and privatization.

112 113

Cf. P. Barcellona, Diritto privato e società moderna (Napoli: Jovene, 1996), p. 283.

Vareilles-Sommieres, ‘La définition et la notion juridique de la propriété’ (1905) Revue trimestrielle de droit civil 443-495.

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ing of Articles 2 and 17 of the Declaration of 1789 with the Preamble of the Constitution of 1958. Since then, the Constitutional Council has developed a constitutional doctrine of the right of property by making sure in advance that restrictions on the right of property imposed by the legislature would not have impaired the meaning and the scope of the right itself. On the other hand, the role of the administrative courts in protecting the right of property has been strengthened due to the procedural reforms started in the middle of the 1990s that led to the introduction of the référé-liberté proceeding. Within this new procedure, the Council of State has developed a far reaching protection of the individual right to dispose of property by relying, in particular, on Article P1-1 ECHR as well as on the ECtHR case law. Although social legal thought did not make an inroad in the French Constitution, due to the rejection of the Constitution of 1946 through referendum,114 French governments were more active than Italian ones in enacting social policies. For instance, nationalizations that took place in France between 1944 and 1946 entailed the transfer of important industries, such as coal, electricity, and automobiles, to authorities who ran these industries according to the so-called criterion of tripartisme represented by consumers, workers, and the State. In Italy, on the contrary, the nationalization of the electric industry through the establishment of the E.N.E.L. amounted to the mere expropriation of the electric industries in order to give E.N.E.L. the original reserve in carrying out any enterprises in that sector.

114

T he rejection by referendum of the first draft of the Constitution of 1946 depended mainly on the aversion to it shown by De Gaulle, and yet the Constitutional Council seized the occasion to interpret the results of the referendum of 1946 as the explicit refusal of a concept of property subordinate to social utility. See decision No. 81-132 DC, the Constitutional Council (above).

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European and National Courts’ Approaches to Interferences with Property Rights

chapter 5

european and national courts’ approaches to interferences with property rights

Introduction The Council of Europe and the European Communities were established on the assumption that regional integration through the institutionalization of common values was the best way to ensure that western European countries, especially Germany, France, and the United Kingdom, would cooperate for peace. Accordingly, the founding States of the Council of Europe committed themselves and future member States to respect ‘the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’.1 As Norberto Bobbio remarked, the protection of human rights by the Council of Europe strengthens the unity of the member States insofar as it is intended to preserve this common heritage.2 Considering these values and their significance in the different legal orders, it is essential to understand the development of the standards of judicial review and their implementation by the courts in property cases. Therefore, in this Chapter, I first summarise the common values that underlie the regional instruments on human rights and national constitutions. I then consider the standards that different courts have adopted in interpreting and applying the provisions protecting property rights. Some of those standards are written in the texts of the constitutions and conventions, whereas other have been created by the courts. Generally speaking, they are developed by taking into account the lawfulness, the aim, and the significance of interferences with the exercise of property rights.



1 The Rule of Law: The Hallmark of Modern Democracies

Liberal forms of government were established in Europe between the end of the nineteenth century and the first two decades of the twentieth century. In particular, in Victorian England and in Germany under the Second Reich the law was no longer considered to be the mere expression of the absolute will of the sovereign, but was rather conceived as a guarantee for the citizens against arbitrary acts of the State. Accordingly, the legal order was expected to protect individuals from the arbitrary exercise of power by the State’s authorities, as it subjected governments to the law and granted individuals access to courts to defend their rights against unlawful actions of the executive power.

1

Preamble of the Statute of the Council of Europe.

2

N. Bobbio, ‘Il preambolo della Convenzione europea dei diritti dell’uomo’ (1974) Rivista di diritto internazionale 437-445 at 440.

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These basic ideas developed into the doctrines of the rule of law,3 Rechtstaat, 4 Stato di diritto, and Etat de droit. Considering the French scene, Article 16 of the Declaration of 1789 foreshadows the notion of Etat de droit by subordinating the existence of a constitutional government to two essential requisites, namely the separation of powers and the protection of human rights.5 The notion of Etat de droit was first discussed as such by Léon Duguit in the early twentieth century,6 and in the last quarter of the same century it was given prominence by a famous speech given by Valéry Giscard d’Esteing on November 8, 1977 at the Constitutional Council. In this speech the former President of the Republic affirmed that the Etat de droit is that in which each authority, from the lowest to the highest, acts under the control of a judge who ensures respects of all the formal and substantive rules to which that authority is subjected.7 France gradually abandoned the principle of parliamentary supremacy during the second half of the twentieth century. The widening of the scope of constitutional review by the Constitutional Council finally put an end to the traditional conception of Parliamentary sovereignty by establishing that all organs of government, including the legislature, are bound to respect constitutional values and principles.8 Therefore, Article 6 of the Declaration of 1789, according to which ‘the Law is the expression of the general will’, has been reinterpreted by the Constitutional Council in the sense that ‘the law express[es] the general will as far as it respects the Constitution’.9 On the other hand, the Constitutional Council has developed a case law aiming at strengthening the rule of law throughout the years. It has, for instance, recognized the right of defence as fundamental consti-

3

This notion of rule of law was first elaborated by A.V. Dicey in Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th ed., 1915).

4

The expression Rechtstaat was coined by J.W. Placidus (a pseudonym of J.W. Petersen) in the Literatur der Staatslehere. Ein Versuch (Strasbourg, 1798), with reference to the philosophy of Kant, who is commonly considered to be the spiritual father of the Rechtstaat doctrine. See L. Heuscling, État de droit, Rechtstaat, Rule of Law (Paris: Dalloz, 2002), p. 40.

5

The article reads: ‘Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution’.

6

L. Duguit, Manuel de droit constitutionnel. Théorie générale de l’État – Organisation politique (Paris: Fontemoing, 1st ed., 1907).

7

Speech quoted by L. Favoreu, ‘L’achèvement de l’Etat de droit sous la Ve République’, in Mélanges Patrice Gélard (Paris: Montchrestien, 1999), p. 168.

8

On the evolution of the role of the Constitutional Council, see J.-L. Debré, ‘Le Conseil Constitutionnel: une réussite inattendue de la V République’, in B. Mathieu (ed.), 1958-2008 Cinquantième anniversaire de la Constitution française (Paris: Dalloz, 2008), p. 309.

9

Constitutional Council, 23 August 1985, decision No. 85-197 DC, para. 27, Rec. 70.

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tutional right10 as well as the accessibility and intelligibility of law as a constitutional objective.11 In Italy, the Constitution of 1947 did not expressly refer to the new legal order as Stato di diritto. However, Article 1 provided that ‘sovereignty belongs to the people and it is exercised by the people in the forms and within the limits of the Constitution’. Furthermore, Article 2 aims to protect the ‘inviolable rights of the person’ whereas Articles 24, 111, and 113 of the Constitution give the individual the right to judicial protection against third parties and the State. In particular, Article 24 states that anyone may bring a case before a court in order to protect his rights under civil and administrative law, and it proclaims the right of defence as an inviolable right that shall be granted at every stage and instance of legal proceedings. Article 111 rules that jurisdiction is implemented through due process regulated by law, and Article 113 provides that the judicial safeguarding of rights and legitimate interests before the bodies of ordinary or administrative justice is always permitted against acts of the public administration. An examination of constitutional case law shows that, until the 1990s, the Constitutional Court made sporadic use of the term Stato di diritto, although the notion was thoroughly familiar to Italian legal doctrine. Lately, it invoked the notion under discussion more often to stress, in particular, the central importance of the principles of legality, legal certainty, and the judicial guarantee of individual rights by an independent judiciary.12 Respect for the rule of law principle is vindicated as a hallmark of modern democracies by the Council of Europe,13 which requires member States to accept it.14 The Preamble of the ECHR also refers to the rule of law principle by characterising the States of Europe as sharing ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Insofar as human rights protection is aimed at providing protection against arbitrary actions by the State, the need for governments to be subject to the law and for the State’s powers to be exercised in accordance with the law acquires a central importance. Accordingly, the ECHR requires that a State’s conduct that interferes with protected rights must, first of all, be lawful (see below § 5). Furthermore, important components of the rule of law are recognised as fundamental rights within the Convention. Thus, for instance, Article 5 is intended to provide a guarantee against arbitrary deprivation of liberty by imposing the 10 11

Constitutional Council, 2 December 1976, decision No. 76-70 DC, para. 2, Rec. 39.

Constitutional Council, 16 December 1999, decision No. 99-421 DC, para. 13, Rec. 136; 26 January 2003, decision No. 2003-473 DC, para. 5, Rec. 382.

12

E. Gianfrancesco, ‘Il principio dello Stato di diritto e l’ordinamento europeo’, in S. Mangiameli (ed.), L’ordinamento Europeo. I principi dell’Unione (Milano: Giuffrè, 2006), pp. 242 ff.

13

The Preamble of the Statute of the Council of Europe expressly mentions the rule of law (preéeminence du droit, in the French version) among the ‘principles which form the basis of all genuine democracies’.

14

Article 3 of the Statute of the Council of Europe states that ‘every member of the Council of Europe must accept the principles of the rule of law’.

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judicial control of the lawfulness of arrest and detention; Article 6 proclaims the right to a court adjudication in respect of criminal charges and civil disputes; and Article 7 safeguards the right not be charged with an offence that was not prescribed by law at the time it was committed. Moreover, the ECHR obligates States to provide an effective remedy before national authorities in respect to an allegation of the violation of Convention rights (Article 13), and it requires that the content of domestic laws must not unjustifiably discriminate on the grounds set out in Article 14.15 The ECtHR first used the rule of law principle as a source of interpretation of the Convention in the Golder case. Stressing that it has much more than merely rhetorical significance, the Court relied on the rule of law to allow protection for unenumerated rights. In solving the specific case brought before it, the ECtHR had to decide whether Article 6 ECHR was to be interpreted as protecting the right to access courts. The Court gave an affirmative answer and observed that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts’.16 Since then, the ECtHR has consistently affirmed that the rule of law is ‘one of the fundamental principles of a democratic society’ and is ‘inherent in all Articles of the Convention’.17 As developed by the ECtHR, the rule of law offers a protection against the arbitrary use of State power through implied procedural safeguards attached to substantive Convention rights and through the imposition of a specific quality of justice (see Chapter 6, § 1.1) and quality of law (see below §5). Finally, respect for the rule of law principle is also among the criteria that a State must meet in order to apply for and enjoy the status of a member of the EU.18 Actually, the European Council may suspend certain of the rights deriving from the application of the Treaties to Member States that seriously and persistently breach the rule of law principle or other values on which the Union is founded.19 Although the original European Community Treaties did not mention the rule of law, this principle has always been of paramount importance to the development of the legal system of the Union. As observed by Armin von Bogdandy, from a national constitutional perspective the rule of law principle is generally associated with the restriction of authority whereas the ECJ relied on the principle at issue in order to foster the obedience of Member States to EU law and, thus, to constitute authority.20 15

The ECtHR expressly stated that ‘the rule of law means that all human beings are equal before the law, in their rights as in their duties’ (App. No. 41340/98, 41342/98, 41343/98, and 41344/98, Refah Partisi (The Welfare Party) and Others v. Turkey [2001] ECtHR, para. 43).

16

App. No. 4451/70, Golder v. The United Kingdom [1975] ECtHR, para. 34. For more details on the case, see above Chapter 1, §2.1.

17

 E x plurimis, see App. No. 30985/96, Hasan and Chaush v. Bulgaria [2000] ECtHR [G.C.], para. 87.

18

See Article 49 TEU.

19

See Article 7 TEU.

20

A. Von Bogdandy, ‘Founding Principles’, in A. Von Bogdandy and J. Bast (eds.), Principles of European Constitutional Law (Oxford and Munchen: Hart/Beck, 2nd ed., 2010), pp. 29-30.

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The principle of conferred or attributed powers, upon which the EU legal order is built, entails the need to establish an appropriate system of legal remedies to ensure that EU institutions act within their powers and that the rules they lay down are respected. Since the 1980s, the ECJ has therefore affirmed that the European Community was a community based on the rule of law, which translates into German as Rechtsgemeinschaft, into French as Communauté de droit, and into Italian as Comunità di diritto.21 As has been observed, ‘the most likely explanation for the Court of Justice’s reluctance to rely on the more classic national concepts of Rechtsstaat or Etat de droit – a reluctance which is difficult for English speakers to note as the English phrase does not refer to a state or government – is that the Court of Justice judges may have been reluctant to use terms which could give ammunition to those who have constantly feared and denounced the emergence of a European “superstate”’.22

When amending the EU Treaty in 1997, however, the Member States preferred the traditional concepts of Rechtsstaatlichkeit, Etat de droit, and Stato di diritto to the ECJ formula. Therefore, those concepts are now enshrined in Article 2 TEU, which, however, does not provide any formal definition for them. Thus, their exact scope within EU law remains unclear. The ECJ first relied on the principle of the rule of law as the foundation for judicial review. In particular, since the Les verts judgment,23 the ECJ has consistently emphasized that neither Member States nor EU institutions can avoid review of the conformity of their acts with Treaty law, which establishes a complete system of legal remedies and procedures designed to enable the ECJ to review the legality of the acts of the institutions. From the rule of law, the ECJ derived also some important general principles of EU law, such as the protection of fundamental rights, equality, proportionality, legal certainty, the protection of legitimate expectations, and the rights of defence. As developed by the ECJ, therefore, the rule of law requires public powers to be exercised in compliance with formal and procedural requirements, and it demands judicial remedies to protect individuals’ procedural as well as substantive rights.

21

Case 294/83, Parti écologiste ‘Les Verts’ v. European Parliament [1986] ECR 1339, para. 23.

22

L. Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as Constitutional Principle of EU Law’ (2010) 6(3) European Constitutional Law Review 359-396 at 364.

23

 ‘Les Verts’, supra footnote 21.

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2 Human Dignity: The Founding Value of Modern Human Rights Law

In modern human rights law discourse, human dignity is usually invoked as the foundation of the very idea of human rights. The World Conference on Human Rights recognized and affirmed that ‘all human rights derive from the dignity and worth inherent in the human person’.24 Since the aftermath of the Second World War, dignity has been consecrated by many national constitutions and international conventions; nevertheless, there is no definite and commonly accepted definition of the notion of human dignity as a legal concept.25 As it has been pointed out by Maria Rosaria Marella, the notion of dignity can be defined in two different ways: ‘on the one hand there is the concept of social dignity, conceived of as the right to a honourable life in terms of satisfactory material conditions – mainly an obligation or commitment of the state to policies redistributing wealth; and on the other hand, there is a transcendent notion of human dignity, which is currently the dominant definition, derived from a natural law core. It aims to represent the irreducible human essence and in so doing expresses a “universalistic” value’.26

The Italian Constitution contains references to both notions of dignity. In particular, Article 3 recognizes the equal social dignity of all citizens, and Article 36 enshrines the right to receive a remuneration for work so as to ensure a dignified existence for workers and their families. On the other hand, the concern for the protection of human worth underpins, among other articles, Article 2, which recognises and guarantees the inviolable rights of the person, Article 27, which bans inhuman punishments, Article 32, according to which in regulating health treatments the law must respect the human person, and Article 41, which establishes that human dignity, together with safety and freedom, limits private economic enterprise. As interpreted by the Italian Constitutional Court, the concept of human dignity is closely linked with that of liberty. Interpreting Article 2 Cost., for instance, the Constitutional Court affirmed that the Republic must recognize the rights constituting the inviolable heritage of the human person, namely those rights that belong to the individual as a free human being.27 On the basis 24

Vienna Declaration and Programme of Action adopted in 1993 by the Second World Conference on Human Rights.

25

On the different understandings of the concept, see C. Dupre, ‘Unlocking Human Dignity: Towards a Theory for the 21st Century’ (2009) 2 European Human Rights Law Review 190-205.

26

M.R. Marella, ‘Human Dignity in a Different Light: European Contract Law, Social Dignity and the Retreat of the Welfare State’, in S. Grundmann (ed.), Constitutional Values and European Contract Law (Alphen aan den Rijn: Kluwer Law International, 2008), p. 126.

27

Constitutional Court, 3 July 1956, judgment No. 11.

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of Articles 2, 3(2), and 38 Cost., the Court thus asserted an individual’s right to enjoy specific benefits necessary to relieve poverty or extreme need. Such a right is, according to the Constitutional Court, ‘closely related to the protection of the inalienable core of human dignity’.28 Accordingly, it is a fundamental duty of the Republic to create or maintain the basic requirements of the welfare State, so that the everyday life of all individuals will reflect the value of human dignity.29 From this perspective, the Constitutional Court attached particular weight to the right to housing, that is specifically protected under Art. 47 Cost. Contrary to the Italian Constitution, no reference to dignity can be found in the text of the French Constitution of 1958. Even so, the concept of dignity is not neglected in French constitutional history. The first draft of the Constitution of the Fourth Republic adopted on April 19, 1946, established a direct link between dignity and the full development of the person30 and laid down the principle of respect for dignity as limit to the action of the State and of private parties.31 Finally, in the report delivered to the Senate on March 10, 1993 (the so-called rapport Vedel), the Comité consultatif pour la revision de la Constitution emphasized the need to include the right to respect for private life and human dignity in Article 66 Cost. However, that project of revising the Constitution, whose main goal was to strengthen the power of Parliament against the supremacy of the government, was never carried out. Since the first draft of the Constitution of 1946 did not enter into force, the Constitutional Council established the principle of respect for human dignity by means of a creative interpretation of the Preamble of the Constitution of 1946, whose opening paragraph reads: ‘[i]n the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights’. From this paragraph, the French Constitutional Council derived the constitutional principle of ‘the protection of human dignity against all forms of enslavement or degradation’.32 Then, adopting a broad interpretation of the terms ‘all forms of enslavement or degradation’, the Constitutional Council affirmed that the principle of protection of human dignity applied to threats coming from scientific progress. It thus introduced a new criterion to review the constitutionality of bio-ethical laws. 28

Constitutional Court, 15 January 2010, judgment No. 10, (2010) Giurisprudenza costituzionale 1, 135.

29 30

Constitutional Court, 11 February 1988, judgment No. 217, (1988) Cons. Stato II, 263.

Article 22 provided that ‘Tout être humain possède, à l’égard de la Société, les droits qui garantissent, dans l’intégrité et la dignité de sa personne, son plein développement physique, intellectuel et moral’.

31

In particular, Article 38 stated that ‘Nul ne saurait être placé dans une situation d’infériorité économique, sociale ou politique contraire à sa dignité et permettant son exploitation en raison de son sexe, de son âge, de sa couleur, de sa nationalité, de sa religion, de ses opinions, de ses origines ethniques ou autres’.

32

Constitutional Council, 27 July 1994, decision No. 94-343/344 DC, para. 2, Rec. 100. The decision was taken in the context of draft legislation regarding medically assisted procreation and prenatal diagnosis.

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Shortly after, the Council of State affirmed that human dignity is a component of the concept of public order and, accordingly, that preventive administrative police measures can legally be adopted when required to protect human dignity.33 Like the French Constitution of 1958, the text of the ECHR does not expressly refer to human dignity. However, a link between the Convention and human dignity can be established through its Preamble, which refers to the Universal Declaration of Human Rights.34 The latter affirms, in its Preamble, ‘faith in fundamental human rights, in the dignity and worth of the human person’, and it states in Article 1 that ‘all human beings are born free and equal in dignity and rights’.35 The ECtHR has referred to human dignity since its early jurisprudence. The principle of respect for human dignity is prima facie related to the right to life (Art. 2) as well as to prohibitions against torture, inhuman or degrading treatment or punishment (Art. 3), slavery, and forced labour (Art. 4). Nevertheless, considering that ‘the very essence of the Convention is respect for human dignity and human freedom’,36 the ECtHR made use of it with regard to the other provisions of the Convention. For instance, respect for human dignity is one of the criteria developed by the Court in the case law under Article 5 on conditions of detention.37 Finally, human dignity is mentioned in the Preamble of the EU Charter of Fundamental Rights as the first of the indivisible, universal values on which the European Union is founded. Accordingly, Article 1 consecrates dignity as the real basis of fundamental rights, stating that ‘Human dignity is inviolable. It must be respected and protected’. It follows, as illustrated in the Praesidium’s explanations, that ‘none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is 33

Council of State, 27 October 1995, decisions No. 136727 and 143578. The cases concerned the prohibition against the so called dwarf-throwing shows forbidden by some mayors. The first instance judges ruled that there was no valid legal grounds for prohibiting such shows, whereas the Council of State held that these bans could be said to be motivated by the need to preserve human dignity, which is a component of the public order.

34

Even though the idea of an European convention on human rights had arisen during the conference promoted by the European Movement that took place in The Hague in May 1948, and thus before the proclamation of the Universal Declaration on Human Rights, once the latter passed, it became a constant point of reference for the drafters of the ECHR.

35

Dignity is mentioned also in Articles 22 and 23 of the Declaration. The first mention provides that everyone, as a member of society, has the right to social security and is entitled to the realization of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality. Article 23 states that everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity.

36 37

App. No. 28957/95, Christine Goodwin v. The United Kingdom [2002] ECtHR [G.C.] para. 90.

See the leading case, App. No. 30210/96, Kudla v. Poland [2000] ECtHR [G.C.], especially para. 94.

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part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted’.38 Before the adoption of the Charter, the ECJ had already used the notion of human dignity to extend the scope of the anti-discrimination clause to protect transsexuals.39 Moreover, it openly confronted the human dignity issue in decision C-377/98 regarding the Directive on the Legal Protection of Biotechnical Inventions. 40 In this occasion, the Court recognized that its competence included the obligation to ensure that acts of EU institutions comply with the ‘fundamental right to human dignity and integrity’ as a general principle of EU law. 41 Then, in the Omega case, 42 the ECJ reaffirmed that the respect for human dignity is a general principle of law and accepted that, even lacking a concept of dignity common to all Member States, 43 it can justify restrictions to fundamental freedoms guaranteed by the Treaty.



3 The Ever Evolving Concept of Equality

Equality as a legal concept is a product of the Enlightenment that evolved with the evolution of legal-political ideologies. Proclaimed in the Declaration of Human and Civic Rights of 1789 to repudiate the inequalities upon which the Ancien Régime stood, the principle of equality before the law was one of the core values of liberalism. Then, in the nineteenth century, equality served laissez faire thought while by the early twentieth century it had taken on social connotations and became the basis for the State’s intervention in many aspects of social and economic life.

38

See Updated Explanations relating to the text of the Charter of Fundamental Rights, CONV 828/03, p. 4.

39

Case C-13/94, P. v. S. and Cornwall County Council [1996] ECR I-2143. At para. 22, the Court stated that to tolerate discrimination on the grounds of sexual identity ‘would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard’.

40

Directive 98/44/EC of 6 July 1996 of the European Parliament and of the Council on the legal protection of biotechnological inventions, OJ L 213 of 30 July 1998, 13.

41

Case C-377/98, Kingdom of the Netherlands v. European Parliament and Council of the European Union [2001] ECR I-7079, especially at para. 70.

42 43

See above Chapter 3, § 3.

The General Advocate pointed out that the concept of human dignity enjoys full recognition in the constitutional systems of the Member States, even though it is expressed in different ways. In particular, she observed that it ‘seems to appear in the national legal systems of the Member States primarily as a general article of faith or – often in the case‑law – as a fundamental, evaluation or constitutional principle, rather than as an independent justiciable rule of law’. See Opinion of Advocate General StixHackl delivered on 18 March 2004, ECR I-9609, especially at para. 83-84.

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The Italian Constitution of 1947, outlining a project of society that hinged on the centrality of person, 44 set the equality principle among the fundamental principles of the Republic, affirming in Article 3 that ‘All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country’.

The Constitutional Court interpreted this article as emphasising the inviolable nature of the principle of equality and pointed out that it grants both formal and substantive equality. 45 Moreover, the Court derived from Article 3 Cost. the reasonableness principle, which requires the intrinsic consistency of the laws and legal order. 46 However, this does not by itself mean that the Constitutional Court is allowed to review the fairness of a law since that would amount to an undue interference with the legislative power. 47 On the other side of the Alps, the value of equality has been consistently reaffirmed over the entire French constitutional history. 48 It was proclaimed by the Declaration of 1789 as well as by the Constitutions of 1946 and 1958. In particular, Article 2 of the latter adopts the slogan of the Révolution, i.e.: Liberté, égalité, fraternité, as a maxim of the Republic. The French Constitutional Council first referred to equality as parameter of constitutionality in a decision of 1973 to declare a law unconstitutional because it introduced a different treatment of procedural guarantees for taxpayers depend-

44

From the earliest records of the works of the Constituent Assembly, there are indications of the political goodwill to restore the value of the person as a reaction to the fascist experience. See N. Occhiocupo, Liberazione e promozione umana nella Costituzione: unità di valori nella pluralità di posizioni (Milano: Giuffrè, 1984), pp. 30ff.

45

Constitutional Court, 15 April 1993, judgment No. 163, (1964) Foro italiano I, 696.

46

Constitutional Court, 30 November 1982, judgment No. 204, (1983) Foro italiano I, 854. There is a large literature on the genesis and evolution of the principle of reasonableness in the case law of the Constitutional Court, among the most recent titles see G. Scaccia, Gli “strumenti” della ragionevolezza nel giudizio costituzionale (Milano: Giuffrè, 2000); A. Morrone, Il custode della ragionevolezza (Milano: Giuffrè, 2001); F. Modugno, La ragionevolezza nella giustizia costituzionale (Napoli: Edizioni scientifiche, 2007).

47

 E x plurimis, Constitutional Court, 12 January 2000, judgment No. 5, (2001) Foro italiano I,1494; 7 July 2005, judgment No. 264, (2006) Foro italiano I, 2666.

48

See F. Mélin-Soucramanien, Le principe d’égalité dans la jurisprudence du Conseil constitutionnel (Paris: Economica, 1997), pp. 29 ff.

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ing on the amount of their incomes. 49 Since then, equality has become one of the core parameters used by the Constitutional Council to review legislation.50 A free-standing right to equality cannot be found in the ECHR; however, Article 14 provides a guarantee against discrimination, by stating that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. The Article thus provides protection for individuals against discrimination in the enjoyment of the rights and freedoms set forth in the Convention. As pointed out by the ECtHR, Article 14 ‘complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions’.51 Nevertheless, Article 14 is an autonomous provision because it can be violated even when there is no breach of the Convention right invoked to establish its applicability. A further guarantee for equality within the ECHR law is found in Article 1 of the 12th Protocol to the ECHR that lays down a general prohibition of discrimination to apply to ‘any rights set forth by law’.52 Within ECtHR case law, equality is a distinct value closely linked to the other Convention values, namely dignity, democracy, and the rule of law. Accordingly, the ECtHR held that discrimination can amount to degrading treatment under Article 3 ECHR insofar as the difference of treatment denotes lack of respect for the personality of the victim, or is designed to humiliate or debase him.53 Furthermore, the conception of democracy adopted by the ECtHR requires that, even when implementing a policy adopted by the majority, ‘a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position’.54 49 50

See Constitutional Council, 27 December 1973, decision No. 73-51 DC, Rec. 25.

According to F. Mélin-Soucramanien and H. Moutouh in ‘Les deux faces du principe d’égalité’, in B. Mathieu (ed.), 1958-2008: Cinquantième anniversaire de la Constitution française (Paris: Dalloz, 2008), p. 205, the Constitutional Council refers to the equality principle on the average of once every two decisions.

51

App. No. 8777/79, Rasmussen v. Danemark [1984] ECtHR, para. 29.

52

The Protocol was signed on November 4, 2000 and entered into force on April 1, 2005. Up until January 2013, neither Italy nor France has ratified the Protocol under discussion.

53

See, mutatis mutandis, App. No. 9214/80, 9473/81, and 9474/81, Abdulaziz, Cabales and Balkandali v. The United Kingdom [1985] ECtHR, especially at para. 90-92. The case concerned the government’s refusal, in accordance with the immigration rules, to grant the applicants’ husbands permission to remain with them in the United Kingdom. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race, and birth, and that there had been violations of Articles 3 and 8, taken alone or in conjunction with Article 14. The Court held that there had been no violation of Article 3 but that the applicants had been victims of discrimination on the grounds of sex in violation of Article 14 taken together with Article 8.

54

App. No. 25088/94, 28331/95, and 28443/95, Chassagnou and others v. France [1999] ECtHR [G.C.] para. 112.

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Finally, from the principles of fairness and rationality that underpin the rule of law, it follows that when a State lays down differences in treatment with regard to the enjoyment of Convention rights, it must be able to justify them as not arbitrary. Not every difference in treatment is thus per se contrary to Article 14. According to the ECtHR’s standard formulation concerning the scope of the Article at issue, ‘For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment’.55

The Court thus considers whether there is a difference in treatment between analogous situations and, in that case, whether there is an objective justification for the difference of treatment. However, some authors have remarked that the ECtHR tends to focus primarily on the question of justification.56 Yet different approaches can lead to the same result, as was shown by the judgments delivered by the Court in the Burden case. The applicants in this case were two unmarried sisters who lived together for thirty years in a house built on land they inherited from their parents. Each sister made a will leaving all her property to the other sister, but they were aware that when one of them died the other would be forced to sell the house to pay inheritance tax. They complained to be victims of a violation of Article P1-1 taken in conjunction with Article 14 since, unlike married couples or civil partners, they could not benefit from an exemption from inheritance tax. The case was first decided by the Chamber and then referred to the Grand Chamber. In both judgments, the ECtHR found that there had been no violation of Article 14 taken in conjunction with Article P1-1, but did so on different grounds. The Chamber stated that the Court did not need to consider whether the applicants were in an analogous position to married and civil partnership couples because the difference in treatment was not inconsistent with Article 14 insofar as it was reasonably and objectively justified by the legitimate aim of promoting stable, committed heterosexual and homosexual relationships.57 The Grand Chamber instead based its reasoning on the fundamentally different situation of the applicants from that of a married or civil partnership couple. In particular, it remarked that

55

See, most recently, App. No. 77782/01, Luczak v. Poland [2007] ECtHR, para. 47.

56

R. O’Connell, ‘Cinderella comes to the Ball: Art. 14 and the Right to Non-Discrimination in the ECHR’ (2009) 29(2) Legal Studies 211-229 at 218.

57

App. No. 13378/85, Burden and Burden v. The United Kingdom [2006] ECtHR, para. 58-61.

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‘the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom’s Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members’.58

According to the Grand Chamber, the absence of a ‘legally binding agreement between the applicants rendere[d] their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple’.59 All things being considered, the Grand Chamber concluded that the situation of the applicants could not be compared, on the basis of Article 14, to a married or Civil Partnership Act couple. Finally, it should be remarked that the ECtHR interprets Article 14 very widely to include unenumerated grounds upon which discrimination is prohibited. Thus, Convention equality law may apply also to cases that would not necessarily be considered as discrimination cases under national laws. Within the EU, equality and non-discrimination are topical issues in the legal, sociological, and political discussions about the development of a more integrated polity in the Union.60 These are complex concepts, and considerable debate on their meaning and justification exists; even so, non-discrimination law is now a well developed body of EU law. The EEC Treaty offered a minimal framework for developing equality under EC law. On one hand, it required Member States to ensure the application of the principle that men and women should receive equal pay for equal work, and, on the other hand, it prohibited any discrimination on the grounds of nationality. But again, the ECJ referred to the international system of the protection of human rights and to the national legal orders of Member States to identify the principles of equality and non-discrimination as general principles of Community law. The Rückdeschel case is usually considered to be the first case in which the ECJ referred to a general principle of equality beyond the prohibition of discrimination stated in the EEC Treaty.61 In the Defrenne case, it later accorded 58

App. No. 13378/85, Burden v. The United Kingdom [2008] ECtHR [G.C.] para. 62.

59

 Ibidem, para. 65.

60

For an extensive and detailed analysis of case law on equality and non-discrimination, see D. Martin, Égalité et non-discrimination dans la jurisprudence communautaire: étude critique à la lumière d’une approche comparatiste (Brussels: Bruylant, 2006); D. Schiek, L. Waddington, and M. Bell, Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Oxford: Hart, 2007). On March 3, 2011, the European Union Agency for Fundamental Rights (FRA) and the ECtHR jointly published a comprehensive guide to European non-discrimination law. See Handbook on European nondiscrimination law available on the website of the FRA: http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_handbook_caselaw_en.htm

61

Cases 117/76 and 16/77, Albert Ruckdeschel & Co. and Hansa-Lagerhaus Ströh & Co. v. Hauptzollamt Hamburg-St. Annen; Diamalt AG v. Hauptzollamt Itzehoe [1977] ECR 1753, at para. 7; the Court stated

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the status of a fundamental human right to the right not to be discriminated against on the grounds of sex.62 Subsequent case law and EU policy show that the goal of the equality principle has shifted from market integration to human rights protection. To describe its scope, the ECJ developed the standard formula according to which equality requires that ‘comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified’.63 Therefore, the principle of equality as general principle of EU law works mainly as a protection against arbitrary actions of EU institutions. In more recent years, equality has become one of the fundamental values proclaimed by both the TFEU and the EU Charter of Fundamental Rights as a founding value of the Union. In particular, the latter devotes a specific title to equality that includes a general statement on formal equality (Art. 20) and an all-embracing prohibition of discrimination (Art. 21).



4 Solidarity as Ratio Fundamentalis of Social Duties and Rights

The development of the concept of solidarity as a legal concept is commonly attributed to the French philosopher Pierre Leroux. He derived a general duty of solidarity from social interdependence, to replace the Christian notion of charity in philosophical and political discourse.64 The concept of solidarity has thus played a central role in the development of solidarist and social legal thought. In particular, toward the end of the nineteenth century, the concept of solidarity provided the foundation of a new legal-political doctrine that was developed in a comprehensive form by Léon Bourgeois. At the very core of his thought are the ideas that each individual has a debt that derives from the mere fact of living in society and that the need of justice requires individuals to pay off their debts. However, due to the impossibility of accurately establishing each individual’s debt, these debts must be fulfilled through progressive taxation and pooling of social risks. In short, to be realized, the doctrine formulated by Bourgeois requires the establishment of a comprehensive system of insurance that aims to prevent and redress, through the discharge of the duty of solidarity, that ‘the prohibition of discrimination laid down in the aforesaid provision [i.e., Article 40(3) EEC Treaty] is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law’. 62

Case 149/77, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena [1978] ECR 1365, para. 26-7. The Court, after having reaffirmed its duty to protect ‘fundamental personal human rights’, considered that ‘there can be no doubt that the elimination of discrimination based on sex forms part of those fundamental rights’.

63

Case 106/83, Sermide SpA v. Cassa Conguaglio Zucchero and others [1984] ECR 4209, para. 28.

64

See M. Borgetto, La notion de fraternité en droit public français: le passé, le présent et l’avenir de la solidarité (Paris: L.G.D.J., 1993), pp. 350 ff.

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the negative consequences that derive from social risks. Thus, starting from the concepts of solidarity and social risk, the government has to set firm obligations in the field of welfare services and is liable for damages that have no other source than the mere fact of living in society.65 In modern constitutionalism, the principle of solidarity underpins the organization of social cohesion and mutual assistance between individuals. Accordingly, the legal concept of solidarity developed alongside the ideas of social rights and the welfare state. The drafters of the Italian Constitution of 1947 emphasized the central role of solidarity in the reorganization of society to achieve the transition from a society based on liberal individualism to one founded on the personalist principle proclaimed by Article 2 Cost. According to the personalist principle, social organization is intended to promote the full development of each person,66 for he or she is seen as an active member of society. Individuals are thus required to fulfil fundamental duties of political, economic, and social solidarity. Some of these duties are explicitly stated by the Constitution, such as the duty to contribute to the material or spiritual progress of society (Art. 4), the duty to vote (Art. 48), the duty to defend the country (Art. 52), and the duty to be loyal to the Republic and to uphold its Constitution and laws (Art. 54). Others that can be derived through interpretation include, for example, the duty of the community through the State to provide fair compensation for those who suffer damages as result of mandatory health treatments,67 or who contract hepatitis because of blood transfusions.68 In current French constitutional texts, the only express reference to solidarity is found at paragraph 12 of the Preamble to the Constitution of October 27, 1946, whose scope is limited to the case of national calamities.69 Article 1 of the Constitution of 1958 proclaims that France shall be a social Republic, and the Preamble of the Constitution of 1946 – which, it is reminded, is part of the bloc de constitutionnalité – lays down the basis for the recognition of social rights.70 The principle of solidarity is not expressly mentioned by the text of the ECHR, nor are social security rights. However, social security matters are gain65

L. Bourgeois, Solidarité (Paris: Armand Colin, 2nd ed., 1896).

66 67

Constitutional Court, 10 May 1999, judgment No. 167, (1999) Foro italiano I, 2164.

Constitutional Court, 26 February 1998, judgment No. 27, (1998) Foro italiano I, 1370; 22 June 1990, judgment No. 307, (1990) Foro italiano I, 2694.

68

Constitutional Court, 27 October 2006, judgment No. 342, (2006) Foro italiano I, 3273.

69

Paragraph 12 reads: ‘The Nation proclaims the solidarity and equality of all French people in bearing the burden resulting from national calamities’.

70

In particular, paragraph 5 states that ‘Each person has the duty to work and the right to employment’ whereas paragraph 10 provides that ‘The Nation shall provide the individual and the family with the conditions necessary to their development’. Finally, paragraph 11 rules that ‘It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure. All people who, by virtue of their age, physical or mental condition, or economic situation, are incapable of working, shall have the right to receive suitable means of existence from society’.

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ing increasing importance within the ECtHR’s case law.71 In particular, the ECtHR considers issues related to the fairness of the distribution of social security benefits under Article P1-1 taken together with Article 14 ECHR. The Court is further developing a body of case law in the area of socio-economic rights on the basis of Articles 2, 3, and 6 of the Convention. The Court has consistently stated that the Convention does not guarantee the right to a certain living standard and, thus, applicants cannot claim a right to social benefits of a particular amount. Nevertheless, a complaint about a wholly insufficient amount of social benefits may, in principle, raise an issue under Article 3 if the applicant proves that he had to suffer physical or mental health damages attaining the minimum level of severity required by the provision at issue, or if, under Article 2, the applicant faced any real or immediate risk either to his physical integrity or his life. On the other hand, according to a well established jurisprudence, disputes over entitlement to social security and welfare benefits generally fall within the scope of Article 6(1).72 Finally, within EU law the development of a legal concept of solidarity is closely linked to the development of the European Social Model.73 Recently, the EU Commission emphasized that, even though the EU has limited competences in the area of social policy, EU policies have a strong social dimension and positively influence the implementation of social rights in national legal orders.74 Under Treaty law, solidarity is seen as both a value and a legal principle. After solidarity was named among the indivisible and universal values upon which the Union is founded, Chapter IV of the Charter of Fundamental Rights 71

The development of a protection for socio-economic rights through the ECHR has lately attracted the attention of scholars. See O. De Schutter, ‘The Protection of Social Rights by the European Court of Human Rights’, in J. Vande Lannotte, J. Sarkin, T. De Pelsmaeker, and P. Van Der Auweraert (eds.), Economic, Social and Cultural Rights: An Appraisal of Current International and European Development (Antwerp: Maklu, 2002); E. Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’, in D. Barak-Erez, and A.M. Gross (eds.), Exploring Social Rights: Between Theory and Practice (Oxford: Hart, 2007); A. Gomez Heredero, Social Security as a Human Right: The Protection afforded by the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, 2007); K. Kapuy, D. Pieters, and B. Zaglmayer (eds.), Social Security Cases in Europe: The European Court of Human Rights (Antwerp: Intersentia, 2007); M. Cousins, The European Convention on Human Rights and Social Security Law (Antwerp: Intersentia, 2008).

72

See, ex plurimis, App. No. 60860/00, Tsfayo v. The United Kingdom [2006] ECtHR, especially at para. 40. In the early case law, the public/private law dichotomy played a crucial role in ascertaining the meaning of civil rights and obligations under Article 6, whose scope was understood to be restricted to private law rights and obligations. However, the Court very soon adopted the idea that if a dispute over a public right concerns money, it is covered by Article 6. See, App. No. 26637/95, Huber v. France [1998] ECtHR, dissenting opinion of judge Foighel, especially para. 2-3.

73

This notion has been used in EU documents since the Nice European Council in 2000.

74

European Commission, Renewed Social Agenda: Opportunities, Access and Solidarity in 21st Century Europe (COM, 2008) 412 final.

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was devoted to it. The substantive content of the rights therein proclaimed relate to different aspects of employment, social security, and social protection. Explicit references to solidarity are also contained in the TEU and TFEU. In particular, the first reaffirms the attachment of the Union to solidarity as a value that the Union intends to promote,75 and the second refers to solidarity as a principle that shall shape the Union’s actions, especially in matters pertaining to energy supply,76 asylum, and immigration.77 Finally, Article 222 TFEU lays down the so-called solidarity clause, according to which ‘the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster’.



5 The Lawfulness Requirement: A Substantive Approach to the Legality Principle

Like other Convention provisions, Article P1-1 permits interferences with the rights it proclaims by allowing States to enforce laws controlling the use and deprivation of property. Restrictions to property rights are thus permitted by the ECHR if they have some basis in domestic law. As the ECtHR has consistently affirmed since the Iatridis case, ‘the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful’.78 The ECtHR interprets the concept of law according to the autonomous meaning doctrine in order to include statutes and subordinate legislations79 as well as regulatory measures not directly adopted by the Parliament, such as regulations emanated by professional regulatory bodies under independent rule-making powers delegated to them by the legislature80 or by other persons vested with public law functions.81 Moreover, as interpreted by the ECtHR, the concept of law also includes unwritten law,82 in particular judge-made law. Thus, in the 75

See especially Article 2, which refers to solidarity as one of the common values of the EU, and Article 3, which mentions ‘solidarity between generations’ and ‘solidarity among Member States’ as objectives that the Union will promote.

76 77

See Articles 122 and 194.

See Article 80.

78

App. No. 31107/96, Iatridis v. Greece [1999] ECtHR [G.C.] para. 58.

79

App. No. 2832/66, 2835/66, and 2899/66, De Wilde, Ooms and Versyp v. Belgium [1971] ECtHR.

80

App. No. 8734/79, Barthold v. Germany [1985] ECtHR 25; the case concerned a rule of professional conduct issued by the Veterinary Surgeons’ Council that prevented veterinary surgeons from advertising.

81

App. No. 44774/98, Leyla Şahin v. Turkey [2005] ECtHR [G.C.]; the case concerned a circular issued by the Vice-Chancellor of a university that forbade students from wearing Islamic head-scarves at the university.

82

See App. No. 11801/85, Kruslin v. France [1990] ECtHR, especially at para. 29.

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words of the Court, ‘the “law” is the provision in force as the competent courts have interpreted it’.83 At a national level, Article 42 of the Italian Constitution mandates that the legislature has the task of laying down the ways of acquisition and enjoyment of property as well as its limitations so as to ensure its social function and make it accessible to all. This means that interferences with the right of property should be established by statutes. On the contrary, Article 34 of the French Constitution of 1958 provides that statutes shall lay down, besides the rules governing the nationalisation of companies and the transfer of ownership of companies from the public to the private sector, only the basic principles of systems of ownership and property rights. Finally, within EU law, even though Article 345 TFEU reserves for Member States the power to establish and regulate property rights, the ECJ has recognized since the Hauer case that the EU legislator can lay down the basis for a restrictive regulation of the use of property within the pursuit of the EU general interest. Accordingly, Article 17 of the EU Charter of Fundamental Rights states that ‘the use of property may be regulated by law in so far as it is necessary for the general interest’, whereas Article 52 requires that ‘[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’. From the foregoing, it follows that the lawfulness requirement is common to all legal orders considered. I examine below how it is interpreted and applied by the different courts. As a guarantee against the arbitrary exercise of power, the lawfulness requirement entails the respect of a quality standard. The Convention’s legality principle is thus not limited to compliance with domestic law, but includes requirements of clarity and foreseeability. More precisely, to satisfy the requirement of lawfulness a norm must be publicly accessible and sufficiently precise to ensure that its application is foreseeable.84 The Court clarified that all laws shall be formulated with sufficient precision to enable citizens to regulate their conduct, foreseeing, to the degree that is reasonable in the circumstances, the consequences that a given action may entail. This does not imply, however, that those consequences need to be foreseeable with absolute certainty. In particular, the ECtHR stressed that ‘the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed [...]. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice

83

App. No. 44774/98, Leyla Şahin v. Turkey [2004] ECtHR, para. 77.

84

See App. No. 10465/83, Olsson v. Sweden [1988] ECtHR, especially at para. 61.

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to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.85

Moreover, acknowledging that the application of law involves an inevitable element of judicial interpretation, the Court requires that where a law allows discretion for the authorities in enacting its provisions, the scope and the manner of the exercise of such discretion must be indicated with sufficient clarity so as not to leave them with an unlimited and arbitrary power of appreciation.86 In other words, laws should contain adequate safeguards to ensure that the power may not be used in an arbitrary way. In the Hentrich case, for instance, the ECtHR found that a French law allowing the Revenue to exercise the right of pre-emption over property sold at a price it considered too low ‘did not sufficiently satisfy the requirements of precision and foreseeability implied by the concept of law within the meaning of the Convention’.87 In particular, the ECtHR observed that the right of pre-emption laid down by the contested legislation did not apply systematically to all cases where property was sold at an undervalue but was in fact only exercised on rare occasions, making its exercise scarcely foreseeable. Even though the Court stated that the provision at issue did not meet the lawfulness requirement, it decided to consider the case further under the fair balance principle. However, in order to assess whether the interference struck a fair balance between the competing interests, the ECtHR considered the degree of protection against arbitrariness afforded by national law. Considering that the pre-emption operated arbitrarily, selectively, and in the absence of adversarial proceedings that complied with the principle of the equality of arms, the Court decided that the applicant bore an individual and excessive burden which ‘could have been rendered legitimate only if she had had the possibility – which was refused to her – of effectively challenging the measure taken against her’.88 Therefore, the ECtHR found a breach of Article P1-1. Another example is provided by the Amat-G Ltd and Mebaghishvili case, in which the ECtHR had to consider whether a governmental ordinance introducing a mechanism for the staggered payment of outstanding debts, which prevented the applicant from recovering the sum awarded to him by domestic courts, complied with Article P1-1. The ECtHR observed that a governmental ordinance under national law was an individual legal act that should conform to a normative act and could only be issued on the grounds envisaged by such an act and within the limits prescribed by it. The ECtHR found that these requirements were not met in the case at issue, and it continued to consider the 85

App. No. 64915/01, Chauvy and others v. France [2004] ECtHR, para. 44; the case concerned an alleged violation of the freedom of expression due to a conviction for defamation. The Court affirmed that the applicants – a professional author, a publisher, and a publishing company – must at least have been familiar with the legislation on defamation and could have sought advice from specialist counsel.

86 87

See mutatis mutandis, App. No. 44158/98, Gorzelik and others v. Poland [2004] ECtHR [G.C.].

App. No. 13616/88, Hentrich v. France [1994] ECtHR, para. 42.

88

 Ibidem, at para. 49.

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lawfulness of the interference. It found that the ordinance did not enable the applicant company to foresee when it would be entitled to receive the payment due. Accordingly, the Court stated that there had been a breach of Article P1-1 since the interference could not be ‘regarded as based on legal provisions that meet the Convention requirements of lawfulness’.89 The ECtHR then clarified that a law that does not comply with domestic requirements for legality may nonetheless satisfy the Convention’s lawfulness requirement. Moreover, the ECtHR explicitly affirmed that ‘in cases where an applicant complains about the State’s failure to protect his or her Convention rights, domestic legality should be approached not as a separate and conclusive test, but rather as one of many aspects which should be taken into account in assessing whether the State has struck a “fair balance”’.90 The ECtHR also applies the lawfulness standard to domestic court decisions, as it happened in the above mentioned Belvedere Alberghiera and Carbonara and Ventura cases, which are the leading cases dealing with the systemic problem of constructive expropriation in Italy.91 In these cases, the ECtHR observed that ‘the case-law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently, a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and which, as a consequence, is inconsistent with the requirement of lawfulness’.92 Another example in point is the Vrbica case. The ECtHR stated that a national court judgment was incompatible with the principle of lawfulness and therefore contravened Article P1-1 due to the lack of foreseeability in the interpretation of the law by the national court. The case originated from the refusal of the Croatian courts to enforce a judgment of a court in Montenegro awarding damages for injuries that the applicant had sustained in a traffic accident. The applicant had instituted enforcement proceedings before the domestic courts to enforce the foreign judgment rendered in his favour, but the enforcement was declared time-barred and so inadmissible. The Croatian court held that the ten-year time-limit for seeking enforcement had expired, rejecting the applicant’s defence that the running of the statutory limitation period had been interrupted by the institution of proceedings for recognition of the foreign judgment. The ECtHR found ‘untenable the view of the domestic courts that instituting proceedings for recognition of a foreign judgment does not interrupt the running of a statutory limitation period’. If this view were to be accepted, it would create a situation of uncertainty where the right to enforce a foreign judgment could seriously be jeopardised by procrastination in the proceedings 89

App. No. 2507/03, Amat-G Ltd and Mebaghishvili v. Georgia [2005] ECtHR, para. 62.

90 91

App. No. 55723/00, Fadeyeva v. Russia [2005] ECtHR, para. 98.

See above Chapter 2, § 1.4.2.1.

92

App. No. 31524/96, Belvedere Alberghiera S.r.l. v. Italy [2000] ECtHR, para. 58; App. No. 24638/94, Carbonara and Ventura v. Italy [2000] ECtHR, para. 65.

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for its recognition.93 Therefore, the interference with Article P1-1 did not meet the lawfulness requirement because, although the domestic court’s refusal to enforce the judgment had a legal basis, the way that court interpreted and applied the relevant domestic law ‘was not foreseeable for the applicant, who could have reasonably expected that instituting proceedings for recognition of a foreign judgment would interrupt the running of the statutory limitation period’.94 The principles developed by the ECtHR with regard to the quality of law are ius receptum within EU law. In the Jungbunzlauer case, the CFI analysed the meaning of the concept of law within ECtHR case law and observed that ‘with regard to the constitutional traditions common to the Member States, there is nothing which would justify the Court of First Instance giving a different interpretation of the principle of legality, which is a general principle of Community law, from that resulting from the considerations set out above’.95 Since the case concerned a regulation that empowered the Commission to impose fines in the event of an infringement of EC competition law, the CFI first took into consideration Article 7 (No punishment without law) ECHR. However, it observed that ‘the concept of law used in Article 7 is the same as that found in other articles of the ECHR’. Then the CFI referred expressly to the ‘qualitative conditions, including accessibility and foreseeability’ as well as to the requirement of ‘adequate protection against arbitrary interference’ developed by the ECtHR.96 Like the European Courts, the French Constitutional Council conceived the legality principle in a substantive way, but relied on domestic constitutional texts to ground its jurisprudence. In particular, it developed the constitutional objective of accessibility and intelligibility of the law on the basis of Articles 6 and 16 of the Declaration of 1789. According to the Council, the principle of equality before the law established by Article 6, and the protection of rights required by Article 16, could require that citizens have sufficient knowledge of the rules applicable to them. Moreover, such knowledge is also necessary for the protection of both natural rights, whose exercise can be restricted only by law under Art. 4 of the Declaration, and liberty, insofar as, according to Article 5, ‘nothing that is not forbidden by law may be hindered, and no one may be compelled to do what the law does not ordain’.97 The constitutional objective of the intelligibility of the law, together with the principle of the clarity of the law, which derives from Article 34 Cost., requires the legislator to adopt provisions that are sufficiently precise and unambiguous to protect individuals against interpretations contrary to the Constitution and the risk of arbitrariness.98 93

App. No. 32540/05, Vrbica v. Croatia [2010] ECtHR, para. 55.

94 95

 Ibidem, para. 56.

Case T-43/02, Jungbunzlauer AG v. Commission of the European Communities [2006] ECR II-3435, par. 81.

96 97

Ibidem, para. 80.

Constitutional Council, 16 December 1999, decision No. 99-421 DC, para. 13, Rec. 136.

98

Constitutional Council, 12 January 2002, decision No. 2001-455 DC, para. 9, Rec. 49.

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The Italian Constitutional Court as well has stated that clarity and intelligibility of the law is a constitutional value.99 However, according to the case law of the Constitutional Court, the lack of clarity or intelligibility of the law can lead to a declaration of the unconstitutionality of legislation only if it entails the infringement of other constitutional principles or values.100



6 The Legitimate Aim Requirement and the Open-End Concept of General Interest

As pointed out during the drafting of the ECHR, the right of property was unanimously conceived as a relative right because all States allowed restrictions to it.101 Accordingly, in the final form of Article P1-1, everyone’s right to the peaceful enjoyment of his possessions is explicitly restricted by the second and third rules contained therein, which allow deprivations of property in the public interest and measures of control over the use of property in accordance with the general interest or in order to secure the payment of taxes or other contributions or penalties.102 As the ECtHR pointed out, since the three rules incorporated in this Article are not distinct in the sense of being unconnected, an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article P1-1 must also pursue an aim in the public interest.103 Likewise, Article 17 of the EU Charter of Fundamental Rights, which – as said – is expressly based on Article P1-1, provides that ‘the use of property may be regulated by law insofar as is necessary for the general interest’. Moreover, Article 52 recognises the possibility of limiting the exercise of fundamental rights, provided that such limitations ‘genuinely meet objectives of general interest recognised by the Union’. In the Italian Constitution, the legitimate aim requirement for interferences with a person’s property rights rests on the social function clause. In other words, to mediate the tensions between individual interests and collective goals, Article 42 Cost. affirms the social function of property. As interpreted by the Constitutional Court, the social function clause entails that the legislature can 99

Constitutional Court, 1 October 2003, judgment No. 303, (2003) Giurisprudenza costituzionale 5.

100

On this point see. P. Torretta, Qualità delle legge e informazione Parlamentare. Contributo allo studio dell’indagine conoscitiva nel procedimento legislativo (Napoli: Edizioni scientifiche italiane, 2007).

101

See Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, 8 vols. (The Hague: Martinus Nijhoff, 1975), vol. II, p. 63.

102

On the other hand, the recognition of the power of the States to enact substantial limitations on property protection was necessary in order to meet the concerns of a number of Contracting States about the possibility that their powers to nationalise industries or to adopt policies involving a redistribution of wealth for social justice purposes would be jeopardized.

103

App. No. 6518/04, Dokic v. Bosnia and Herzegovina [2010] ECtHR, para. 57.

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impose, after the appropriate assessments and the necessary balancing of different interests, limits to the right of property to ensure its social function.104 Considered a standard of constitutional review, the social function requires only that legislation restricting the right of property must pursue an aim of general interest. In most cases, such an aim mainly has an economic nature, such as the strengthening of firms in crisis, the good functioning of the market, or the development of economic relations.105 As for French law, Article 17 of the Declaration of 1789 refers only to public necessity as a legitimate ground for deprivation of property. Nevertheless, in the decision No. 81-132, the Constitutional Council referred to a dynamic concept of the right of property, whose scope depended both on the development of individual domains and the requirements of the general interest. Stressing that, since 1789, the development of property law has been characterized by restrictions required by the general interest,106 the Council opened the possibility of acknowledging the general interest as a requirement for the constitutional legitimacy of legislation interfering with property rights.107 In other words, faced with the ‘revenge of the collective over the individual’,108 the Constitutional Council had recourse to the notion of general interest to update the concept of property. General interest has thus become a requirement of constitutional legitimacy despite there being no reference to it in the texts that form the so-called bloc de constitutionnalité.109 104

Constitutional Court, 15 July 1983, judgment No. 252, (1983) Foro italiano I, 2628. The Court affirmed that under the Constitution the right of property is still considered as an individual right, but it lies with the legislature to set down, through the appropriate assessment and necessary balancing of conflicting interests, restrictions on the right of property to grant its social function. Thus, the reference to the social function is to be read as a general direction for future legislation.

105

See, for instance, Constitutional Court, 10 June 1966, judgment No. 65, concerning legislation imposing a fair rent for rural land. The Court stressed that the interests of the production, as well as the protection of the weaker contracting party, were to be considered as aims of social interest within the legislative framework of economic relations.

106

Decision No. 81-132, para. 16 reads: ‘postérieurement à 1789 et jusqu’à nos jours, les finalités et les conditions d’exercice du droit de propriété ont subi une évolution caractérisée à la fois par une notable extension de son champ d’application à des domaines individuels nouveaux et par des limitations exigées par l’intérêt général’.

107

For a precedent see decision No. 60-7 L, July 8, 1960, Rec. 35, where the Constitutional Council referred to the national interest to affirm the constitutional legitimacy of restrictions on an owner’s freedom to dispose of his property. In particular, the contested legislation required the purchaser of a property damaged during the war to rebuild a property similar to, and in the same place as, the one destroyed.

108

T his is how J. Nory in Le droit de propriété et l’intérêt général (Paris: Camille Robbe, 1923), p. 26, describes the transformation of the right to property starting from the second half of the nineteenth century when ideas about the general interest gained momentum.

109

G. Merland, L’intérêt général dans la jurisprudence du Conseil Constitutionnel (Paris: L.G.D.J., 2004), especially at pp. 38ff. The author points out that the idea of law as an expression of the general interest, on one hand, and of parliamentary sovereignty on the other, prevented the development of the general interest as a requirement of constitutional legitimacy. Then, although the Constitution of 1958 broke

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However, considering the political nature of the concept of general interest,110 the Constitutional Council confines itself to a superficial examination of the general interest requirement to avoid any accusation of upholding a gouvernement des juges.111 At the theoretical level, the notion of public interest is problematic. Aileen McHarg observes that ‘there are almost as many theories of the public interest as there are writers on the subject’.112 Moreover, according to this author, in the human rights field, ‘there are serious difficulties in developing an appropriate judicial methodology for dealing with public interest defences to human rights violations. The basic problem is that the most persuasive version of the public interest – a common interest theory – is impossible to reconcile with a meaningful conception of a right – as a trump over collective interests’.113 Aware of these difficulties, and understandably reluctant to question the purposes and motives of States’ legal policies, the ECtHR adopted a ‘necessarily extensive’114 interpretation of the notions of public interest and general interest that renders them interchangeable.115 In particular, the Court considered the public interest requirement satisfied even if the community at large derives no direct benefit from the contested measure, provided that it answers a purpose other than to confer a private benefit on a private party.116 Especially in matters of general policy, the ECtHR acknowledges that national authorities have direct democratic legitimation and are in principle better placed than an international court to evaluate local needs and conditions; hence, it ‘will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment is manifestly without reasonable foundation’.117 The Allard case provides a clear example of this approach. The applicant complained, under Article P1-1, that the demolition of her house had violated her right to the peaceful enjoyment of her possessions even though the house had with the legicentrisme of the previous Republics, the proposal to refer to the general interest to define the legislature’s power was rejected because of the elusiveness of the concept. 110

T he central role that the general interest plays in the legislative process is highlighted in the public report published by the Council of State in 1999 (see Réflexions sur l’intérêt général – Rapport public 1999 ).

111

G. Merland, L’intérêt général dans la jurisprudence du Conseil Constitutionnel, cit. pp. 339-340. According to Merland, the Constitutional Council chose to regard the general interest as a requirement of constitutional legitimacy because of the evocative power and ideological force of the concept, which stimulates the belief in a political power that cares about the common good.

112

A . McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62(5) The Modern Law Review 671-696 at 674.

113

Ibidem, 683.

114 115

App. No. 8793/79, James and others v. The United Kingdom [1986] ECtHR, para. 46.

Ibidem, para. 43.

116 117

Ibidem, para. 40 and 45.

Ex multis, App. No. 35014/97, Hutten-Czapska v. Poland [2006] ECtHR [G.C.] para. 166.

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been built without the consent of the other joint owners. Considering whether such a measure pursued a legitimate aim, the Court merely observed that ‘the demolition of a building erected without the necessary consent – can reasonably be said to further the legitimate ‘public interest’ of maintaining a functioning system of joint ownership’.118 Nonetheless, under the circumstances, the Court held that the order for demolition enforced by the Swedish authorities placed an excessive burden on the applicant and, thus, that there had been a violation of Article P1-1. In fact, the ECtHR has never found a violation because an interference was not in the public interest, although in some cases it cast doubt on the reasons of public interest raised by the respondent governments, as it did in the Lecarpentier case. The applicants complained about the retroactive application of legislation governing loans that had the effect of depriving them of their legitimate expectation of being able to recover a certain sum. The Court was in doubt whether the interference was in the public interest, as far as the legislation at issue was not plainly supported by overriding reasons of general interest.119 Nevertheless, the ECtHR maintained that there had been a violation of Article P1-1 on the grounds that the measure had placed an abnormal and excessive burden on the applicants and that the interference with their possessions had been disproportionate. In other cases, the ECtHR affirmed that a State’s interference was not required in the general interest and grounded its finding of a violation of Article P1-1 on a failure to meet the fair balance requirement. An example is provided by the Dangeville case. The applicant company was a creditor of the State because the VAT had been wrongly paid due to the legislature’s failure to bring domestic law into line with EC law. The applicant complained of having been prevented from recovering its credit since its claim had been dismissed by the Council of State on the basis of a domestic rule that prevented a party from bringing an action under general tort law for a remedy it had been refused under a special procedure. But the fact that the Council of State relied on a long-standing principle could not by itself justify a failure to comply with the present requirements of European law and, in particular, could not cause a substantive right created by an EC Directive to disappear. Therefore, the interference with the applicant’s possessions did not satisfy the requirements of the general interest. The ECtHR went on to consider whether the restriction of the applicant company’s rights struck a fair balance between the competing interests, and it found that such a balance was upset because the applicant company’s claim against the State had been rejected and there were no domestic procedures affording a sufficient remedy to protect its right to the peaceful enjoyment of its possessions.120 118

App. No. 35179/97, Allard v. Sweden [2003] ECtHR, para. 52.

119

App. No. 67847/01, Lecarpentier v. France [2006] ECtHR, especially para. 48-49.

120

App. No. 36677/97, S.A. Dangeville v. France [2002] ECtHR. Concerning identical complaints, also see App. No. 49217/99 and 49218/99, S.A. Cabinet Diot and SA Gras Savoye v. France [2003] ECtHR; and App. No. 70160/01, Aon Conseil et Courtage S.A. and Another v. France [2007] ECtHR.

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Within the EU legal order, the concept of general interest refers, prima facie, to economic interests. The general interest, for instance, includes measures aimed at reducing production surpluses,121 and dealing with difficulties created by monetary instability.122 However, the scope of the EU general interest goes beyond mere economic considerations to include the protection of the environment, or public health.123 With greater attention to national legal orders, the study of constitutional jurisprudence shows that the aims of general interest that can justify restrictions on the right of property are various. Thus, the concept of general interest in the French constitutional jurisprudence covers a broad range of interests, such as the protection of individuals’ health,124 fair trade practices, the interests of consumers,125 and commercial diversity of neighbourhoods.126 As for the Italian constitutional case law, the notion of general interest has essentially been developed by the Constitutional Court together with the concept of the social function which justifies the imposition of limits to the right of property. Indeed, as observed by the Court, Article 42 Cost. is intended to protect the right of property against interferences that are not justified in the general interest, which constitutes the limit to property expressed in the social function clause.127 The Constitutional Court first dealt with the social function issue in cases concerning the legislation of agricultural leases that pursued the public interest in the qualitative and quantitative development of agricultural production.128 It 121

App. No. 44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, para. 25.

122

Case 281/84, Zuckerfabrik Bedburg AG and others v. Council and Commission of the European Communities [1987] ECR 49.

123

See, for instance, Case C-293/97, The Queen v. Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex parte H.A. Standley and Others and D.G.D. Metson and Others [1999] ECR I-2603; the case concerned a regulation imposing certain conditions on the spreading of fertiliser. Also see Case C-210/03, The Queen, on the application of: Swedish Match AB and Swedish Match UK Ltd v. Secretary of State for Health [2003] ECR I-11893, concerning a prohibition on the marketing of tobacco products for oral use.

124 125

Constitutional Council, 8 January 1991, decision No. 90-283 DC, Rec. 11.

Constitutional Council, 15 January 1992, decision No. 91-303 DC, Rec. 15.

126 127

Constitutional Council, 7 December 2000, decision No. 2000-436 DC, Rec. 176.

Constitutional Court, 22 April 1986, judgment No. 108, (1986) Foro italiano I, 1145.

128

T he widespread economic depression in agriculture during the early part of the twentieth century gave rise to an accentuated social imbalance. Thus, the agrarian question was at the core of the political debate in the aftermath of World War I. During the war, the government promised the distribution of land to the farmers as reward for the sacrifices they were suffering as soldiers. Even though a special body was established to that end (the so-called Opera nazionale per i combattenti, set up by d.l.l. No. 1970 of December 1917), the hectares of land actually distributed to the farmers were less than 40,000. The fascist government then believed that the issue could be resolved by means of intensive land reclamation works that would have led to the redistribution of land because the large landowners would have to sell part of their land to make the investments imposed by reclamation plans. In practice, however,

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affirmed that legislation imposing a fair rent was to be considered constitutional in the case of tenants who farmed the land themselves, or with the help of their family, whereas it was unconstitutional if it applied to tenants who had other people farm the leased land for them.129 As the Court emphasized, in the conflict between the interests of the owner and those of the worker, the latter prevailed because of the special status that the Constitution grants to the worker. On the contrary, in the conflict between the owner and the tenant entrepreneur, the latter could only invoke the general guarantee of the freedom of enterprise enshrined in Article 41 Cost. and thus the owner’s interests prevailed.130 The Constitutional Court then developed its jurisprudence on the social function as imposing limits to property with regard to housing, an issue with major social implications. From the Second World War until the 1970s, the legislature imposed the compulsory extension of tenancy agreements. Therefore, an owner’s right to dispose of his property was severely restricted because he could neither terminate the contract, nor increase the rent. In the Constitutional Court’s opinion, the freezing of rent met the social function requirement and was legitimate as it was an interim measure. Accordingly, the Court stressed that it was not a measure necessary, in all cases and times, to implement the constitutional principle.131 Under the subsequent legislation, the so-called law on fair rent,132 the amount of the rent due, as well as the minimum duration of the contract, were established by the legislature. Reviewing the constitutional legitimacy of that legislation, the Constitutional Court considered that the interference with the landlord’s right of property was justified by the social aim pursued by the law, namely giving tenants access to the use of an asset of primary importance.133 Over the years, the Italian Constitutional Court has acknowledged several aims of general interest, such as the prevention of unsustainable urban the reclamation process did not have a redistributive function. In the years after World War II, governments adopted measures to stabilize agrarian contracts and control rents, and a general reform act was discussed but never enacted. However, the redistribution of land was eventually brought about by means of laws that applied to regions where the need to change the land system was very real. See G.E. Marciani, L’esperienza di riforma agraria in Italia (Roma: Giuffrè, 1966), pp. 30 ff.; E. Bernardi, La riforma agraria in Italia e gli Stati Uniti. Guerra fredda, Piano Marshall e interventi per il Mezzogiorno negli anni del centrismo degasperiano (Bologna: Il Mulino, 2006). 129

See, in particular, Constitutional Court, 27 July 1972, judgment No. 155, and 22 December 1977, judgment No. 153.

130 131

Ibidem, judgment No. 155, especially para. 2 of the conclusions on points of law.

Constitutional Court, 15 January 1976, judgments No. 3 and 4. See especially judgment No. 4, para. 5 of the conclusions on points of law.

132

L aw No. 392 of 1978. For more details on housing rent regulations, see V. Cuffaro (ed.), Le locazioni urbane: Vent’anni di disciplina speciale (Torino: Giappichelli, 1999).

133

Constitutional Court, 9 November 1988, judgment No. 1028, (1989) Foro italiano I, 614.

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development,134 the conservation of natural resources,135 and the protection of the landscape or historic buildings.136 In particular, in case law concerning landscape restrictions, the Court developed the concept of the environment, protected on the basis of Articles 9 and 32 Cost.137 Understood as the combination of natural and cultural resources that are necessary to the full development of the person, the environment was recognised by the Court as being of a ‘primary and absolute value’.138 Accordingly, public interest in environmental protection falls within the social function of property139, so that it works as a ‘shaping criterion of property land rights’.140



7 Standards of Justification for Interferences with Property Rights

The provisions on property protection considered in this study do not set out any standard of justification for interferences with the right of property. Courts have thus developed a range of standards to review the balance between the general and proprietary interests struck by legislators in setting down legislation that interferes with the exercise of property rights. Concerned with respect for the separation of powers principle, national courts tend not to question the stricto sensu fairness of laws. Accordingly, in its 134

Constitutional Court, 10 May 1963, judgment No. 64, concerning legislation that regulates the jus aedificandi.

135

Constitutional Court, 27 December 1996, judgment No. 419, (1996) Cons. Stato II, 2117, concerning water use regulations.

136

Constitutional Court, 7 November 1994, judgment No. 379, (1995) Foro italiano I, 2; and 23 July 1997, judgment No. 262, (1997) Cons. Stato II, 1128, concerning landscape restrictions; 4 June 2003, No. 185, (2003) Foro italiano I, 2253, concerning legislation imposing restrictions on the exercise of property rights on property of historic and cultural interest.

137

A rticle 9 states that the Republic ‘safeguards natural landscape and the historical and artistic heritage of the Nation’ whereas Article 32 proclaims that ‘the Republic safeguards health as a fundamental right of the individual and as a collective interest’.

138

Constitutional Court, 30 December 1987, judgment No. 641, (1988) Foro italiano I, 69.

139

Constitutional Court, 31 May 2000, judgment No. 164, (2000) Diritto e giurisprudenza agraria e dell’ambiente 667. The contested legislation provided for the compulsory inclusion of property in faunistic-hunting companies, enacting that the owners or lessees of the concerned land must be paid a compensation amounting to four times the land income. This was challenged before the Constitutional Court as disproportionate in comparison to the burden imposed on property. According to the Court, the question was unfounded on the mere consideration that the faunistic interest fell within the scope of property’s social function.

140

Constitutional Court, 11 July 1989, judgment No. 391, (1990) Foro italiano I, 1806. The Court upheld the constitutionality of legislation establishing a natural reserve that entailed restrictions on the exercise of civic rights of use on the land relying on the social function clause, together with the reasonableness standard.

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early jurisprudence, the Italian Constitutional Court clarified that the assessment of the appropriateness of laws lies outside its competence,141 as it is not allowed to take the place of the Parliament in implementing social and economic policies.142 Likewise, considering that the assessment of general interest lies with the legislature,143 the French Constitutional Council does not usually carry out a far-reaching control of the purpose and suitability of legislation referred to it. Thus, resorting to the manifest error standard, the Council essentially requires the legislature to be precise about the general interest aims pursued by each provision. Regarding standards of constitutional review, the Italian Constitutional Court has developed a reasonableness test on the basis of Article 3 Cost., which sets out the equality principle. Generally speaking, the Constitutional Court uses the reasonableness test to assess the appropriateness of restrictions imposed on the right of property by verifying whether such restrictions constitute a reasonable means to the fulfilment of the public interest or the property’s social function. In practice, the Constitutional Court first verifies whether the contested interference falls within the scope of property’s social function by determining whether the legislature is constitutionally authorized to adopt the contested legislation; then, it assesses whether the measures laid down in the legislation are rationally related to and suitable for the policy objectives pursued. This requirement is not satisfied if, for instance, the Court considers that the aim pursued has already been achieved through other means.144 To define the limits for restrictions that the legislature can impose on the right of property, the Italian Constitutional Court has also elaborated criteria for the scope of restrictions and the severity of interferences. The first criterion requires that legislation restricting property rights shall apply to whole categories of assets145 or shall be generally addressed.146 With regard to the severity of interference, the Constitutional Court stated that there is a breach of the constitutional guarantee for property whenever the right of property is cancelled or diminished without compensation, even though the owner has not been deprived of his title. The Court uses the terms to cancel (in Italian annullare) and to diminish (in Italian menomare) with regard to restrictions that have the effect of taking away the content of the right of property by affecting the enjoyment of 141

Constitutional Court, 26 January 1957, judgment No. 3.

142 143

Constitutional Court, 7 May 1984, judgment No. 139, (1984) Foro italiano I, 1153.

Constitutional Council, 20 July 1983, decision No. 83-162DC, at para. 81, Rec. 49.

144

Constitutional Court, 23 May 2003, judgment No. 185, (2003) Foro italiano I, 2253. The Constitutional Court considered the choice of the legislature unreasonable, and it subsequently declared the unconstitutionality of Article 52(1) of legislative decree No. 490/99, which had provided for the prohibition ad aeternitatem of eviction orders with regard to property of particular historic value. According to the Court, the goal of keeping such property intact was already reached through the obligation of the immutability of the designated use.

145

Constitutional Court, 13 July 1990, judgment No. 328, (1990) Foro italiano I, 3064.

146

Constitutional Court, 20 December 1976, judgment No. 245.

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the property so as to make it useless or to cause a significant loss of its market value. It follows that where a servitude or other restriction on property rights considerably impairs the content of the right of property, the legislation that imposes it cannot be regarded as a mere regulation of property.147 As for the French Constitutional Council, it has developed the so-called denaturation control (in French, contrôle de la dénaturation) that allows it to question the inherent seriousness of an interference by considering the impact of an interference on proprietary interests and the existing procedural guarantees. Even though the denaturation of the right of property can be analysed in terms of a disproportionate interference with the exercise of the right, the denaturation control cannot be assimilated to a proportionality test in literal terms. In the latter, the balance to be struck is between the means employed and the legitimate aim sought whereas in the first, the concern is with the seriousness of the interference and the guarantees provided by law. Moreover, before the constitutional reforms of 2008, the Constitutional Council lacked the jurisdiction to carry out a control of proportionality in concreto. Considering that the constitutional review could take place only prior to the enactment of legislation, the Constitutional Council could only review the law in abstracto, and thus it had no actual terms of reference against which to assess the impact of a measure on individuals’ situations. In practice, to be deemed constitutional an interference must be justified in terms of the balance between the seriousness of the interference and the guarantees provided by law. As pointed out by Stéphanie Pavageau,148 the Constitutional Council prefers to rely on objective data such as the lack of adequate procedural guarantees, instead of questioning the assessment of the intrinsic seriousness of the interference made by the legislature, which would inherently question the suitability of the intervention made by the referred law.149 With respect to the European context, contrary to other articles of the Convention,150 Article P1-1 is silent about standards of justification. Thus, the 147

Constitutional Court, 20 January 1966, judgment No. 6.

148

See S. Pavageau, Le droit de propriété dans les jurisprudences suprêmes françaises, européennes et internationales (Paris: L.G.D.J., 2006), pp. 289-290.

149

Similarly, L. Gay, ‘Propriété et logement. Réflexions à partir de la mise en oeuvre du référé-liberté’ (2003) Revue française de droit constitutionnel 309-333 at 318 observes that ‘La jurisprudence témoigne de ce qu’une atteinte, même grave, au droit de propriété peut être validée dès lors que le propriétaire dispose des moyens de protéger ses intérêts. Le contrôle de dénaturation se confond donc en partie avec celui de l’existence de garanties de fond et de procédure, permettant de faire valoir ces intérêts’.

150

See Articles 8, 9, 10, and 11, which require that limitations to protected rights shall be ‘necessary in a democratic society’; Article 2, which requires that deprivation of life is justified only when it results from a use of force that is no more than ‘absolutely necessary’; Article 6, which allows courts, in special circumstances, to depart from the principle according to which trials should be open to the extent ‘strictly necessary’ to safeguard the interests of justice; and Article 15, which states that, in time of war or other public emergency threatening the life of the nation, States may take measures derogating from their obligations under the Convention to the extent ‘strictly required’ by the exigencies of the situation.

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ECtHR has made use of the fair balance principle151 developed in the Belgian Linguistic case, which concerned the right to education proclaimed in Article 2 of the First Protocol to the Convention. The rationale of the principle is consistent with the concern of the ECtHR to secure the effectiveness of the Convention in a changing society, as the following dictum of the Court explains: ‘The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights, and this, without doubt not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter’.152

The extrapolation of a general balancing principle underlying the interpretation and application of the Convention was strongly opposed by Judge Terje Wold, who argued that it would have carried the Court ‘into the very middle of the internal political questions of each Member State, which it has never been the intention that the Court should deal with’.153 Judge Wold refused to consider the just and fair balance principle as a general standard of justification for interferences with Convention rights and feared a drift of the ECtHR toward judicial activism. However, this criticism did not prevent the ECtHR from developing and making extensive use of the fair balance principle. Indeed, in the Sporrong case, the Court affirmed that the search for a fair balance between the general interest of the community and the interest of the individual ‘is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (P1-1)’.154 Essentially, the search for this balance requires the ECtHR to assess whether there is a reasonable relationship of proportionality between the means employed and the aim pursued. In practical terms, in each case involving an alleged violation of Article P1-1, the Court has to ascertain whether the applicant had to bear a disproportionate and excessive burden because of the State’s interference by making an overall examination of the various interests at issue. Accordingly, within the ECtHR case law, the balancing test is not a mere 151

A. Mowbray, ‘A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights’ (2010) 10(2) Human Rights Law Review 289-317 at 292; Mowbray remarks that the ECtHR first used the term just balance and then altered it, without explanation, to fair balance.

152

App. No. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, and 2126/64, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium [1968] ECtHR.

153

Ibidem, partly dissenting opinion of Judge Terje Wold.

154

App. No. 7151/75 and 7152/75, Sporrong and Lönnroth v. Sweden [1982] ECtHR, para. 69.

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evaluative judgment between two conflicting interests in abstract terms. To comply with its task of providing individual justice and bearing in mind that the Convention is intended to safeguard rights that are practical and effective, the Court must take into consideration the actual situation created by the interference by looking behind appearances and investigating the realities of the situation that led to the complaint. To decide a case under Article P1-1, the ECtHR must thus consider the effects of a State’s interference with the right of property of the applicant against his actual and factual situation rather than against an abstract idea of property. An interference would amount to a violation of Article P1-1 if the applicant had to bear a disproportionate and excessive burden. On the other hand, a fair balance between the demands of the general interests of the community and the requirements for the protection of the individual’s fundamental rights could not said to be achieved if an excessive burden is imposed on the State. Thus, through the fair balance test, the ECtHR also assesses the proportionality of positive obligations that can be imposed on States. According to the Court, ‘In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities’.155

Generally speaking, the Court takes into account many concrete aspects surrounding alleged infringements of Article P1-1 without enumerating all the different factors it considers to assess the proportionality of an interference. The fact that the ECtHR enjoys full discretion in deciding which facts to bring in the fair balance test and how much weight they have, entails a certain unforeseeability in its decisions. For instance, it is difficult to establish, on the basis of the ECtHR case law, the significance of the applicant’s non-economic interests in property. In the Chassagnou case, for example, the ECtHR used the proportionality principle to protect the personal beliefs of the applicants. The alleged interference with Article P1-1 concerned the compulsory transfer of the applicants’ hunting rights over their land to municipal hunters’ associations and did not cause any economic harm to applicants. However, the ECtHR found that ‘compelling small landowners to transfer hunting rights over their land so that others [could] make use of them in a way which [was] totally incompatible with

155

App. No. 44306/98, Appleby and others v. The United Kingdom [2003] ECtHR, para. 40.

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their beliefs impose[d] a disproportionate burden which [was] not justified under the second paragraph of Article 1 of Protocol No. 1’.156 The Court considered that the statutory obligation to transfer hunting rights constitutes a disproportionate burden only for those landowners who oppose hunting. In other words, the interference was of special relevance for the applicants because they opposed hunting, and the ECtHR attached great significance to the applicants’ personal beliefs. Therefore, the scope of property protection under Article P1-1 in this case must be seen in relation to the full development of individual personality. Although there are no other cases comparable to Chassagnou v. France on Art. P1-1, there are other cases in which the ECtHR used the fair balance test to gauge the special significance that certain possessions had for the applicants. Accordingly, in the Lallement case,157 the ECtHR held that a compensation based on the general criterion of the market value of the expropriated property was not sufficient to comply with proportionality requirements because of the special relevance for the applicant of the property concerned. A part of the applicant’s farm was expropriated at market value, but the expropriation made it financially non-viable for the applicant to continue farming the remaining portion of his land, and thus led to the loss of his source of income. Since the compensation accorded to him by the national authorities had not covered that specific loss, the Court held that the applicant had to bear a special and excessive burden contrary to Article P1-1. Similarly, in the Azinas case,158 in which the applicant complained of the withdrawal of his pension as a penalty for fraud, the Court held that such interference did not strike a fair balance because it deprived the applicant and his family of any means of subsistence. In other words, the Court considered not just the economic value of the pension, but its role in securing the applicant’s economic security. The subjective value of property is, however, not always protected under Article P1-1. The Burden case is a telling example on this point. To briefly recall the facts, the applicants were two unmarried sisters who had lived together all their lives. They alleged that, when one of them would die, the survivor would have had to face a heavy inheritance tax bill, unlike the survivor of a marriage or the partner of a civil partnership. Grounding the application of Article P1-1 on the formula according to which ‘taxation is in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned of a possession, namely the amount of money which must be paid’,159 the ECtHR did not consider whether, in the case at issue, the applicants complained about a loss of a value different from money. Yet, 156 157

C hassagnou, supra footnote 54, para. 85; emphasis added.

App. No. 46044/99, Lallement v. France [2002] ECtHR.

158

App. No. 56679/00, Azinas v. Cyprus [2002] ECtHR.

159

Burden, supra footnote 57; Burden, supra footnote 58.

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in his dissenting opinion, Judge Stanislav Pavlovschi argued that the decision reached by the majority was legal, but unfair. The judge remarked that the case concerned ‘the applicants’ family house, in which they have spent all their lives and which they built on land inherited from their late parents. This house is not simply a piece of property – this house is something with which they have a special emotional bond, this house is their home. It strikes me as absolutely awful that, once one of the two sisters dies, the surviving sister’s sufferings on account of her closest relative’s death should be multiplied by the risk of losing her family home because she cannot afford to pay inheritance tax in respect of the deceased sister’s share of it. I find such a situation fundamentally unfair and unjust. It is impossible for me to agree with the majority that, as a matter of principle, such treatment can be considered reasonable and objectively justified. I am firmly convinced that in modern society there is no “pressing need” to cause people all this additional suffering’.160

As is apparent from the words of Judge Pavlovschi, the ECtHR did not accept that a family home may have a subjective value that has to be taken into consideration when assessing the proportionality of an interference with property rights under Article P1-1. On the contrary, the ECtHR acknowledged the special value of the home to its owner in the Ouzonoglou case161 when it rejected the Government’s argument, according to which the applicants’ house – which could no longer be used as home – had not suffered any loss in value because it could be used as a business premise, by referring to the sentimental value and economical costs of such a change of designated use. Importantly, the ECtHR’s principle of fair balance plays a direct role within French administrative and judicial case law since it is now commonly accepted that the ECHR, as interpreted by the ECtHR, is part of the bloc de légalité. French courts have thus developed the control of conventionality, which confers to the ECHR direct effect in the national legal order. On this basis in the Bitouzet case, for instance, the Supreme Administrative Court introduced a new exception to the principle of non-compensation for the establishment of public easements on private property by relying on the ECtHR’s case law. Borrowing the ECtHR’s language, the Council of State held that compensation is due when servitude amounts to a ‘special and extraordinary burden that is disproportionate to the public interest sought by the regulation’.162 With regard to judicial jurisprudence, the fair balance principle as interpreted by the ECtHR requires it to evaluate the actual facts of a case; thus, its implementation by the national judiciary rests primarily with first instance 160 161

Burden, supra footnote 58, dissenting opinion.

App. No. 32730/03, Ouzounoglou v. Greece [2005] ECtHR.

162

Council of State, 3 July 1998, decision No. 158592.

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courts and courts of appeal. Accordingly, within the Court of Cassation the control of conventionality is often limited to the consideration in abstracto of whether the national legislation governing the facts of a case is compatible with Article P1-1163 or whether restrictions on property rights imposed by domestic law do not constitute a disproportionate interference with the right of property.164 Thus, the Court of Cassation, when required to pronounce on the conformity of domestic law principles on nuisance with the ECHR, merely observed that the principle establishing that a owner shall not cause abnormal nuisance to neighbouring properties does not amount to a disproportionate interference with Article P1-1.165 In step with the ECtHR, the ECJ and EGC resort to the proportionality principle as a standard of justification for interferences with fundamental rights. The principle of proportionality was first incorporated into EU law as general principle by the ECJ and was finally embodied in Article 5 (1) and (4) TEU, which provide that ‘1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality [...]. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality’.

The Article thus reflects the nature of proportionality as a general principle controlling the exercise of power within the EU legal order. Furthermore, Article 52 of the EU Charter of Fundamental Rights provides expressly that any limitation on the exercise of the proclaimed rights and freedoms must comply with the proportionality requirement. As applied by the ECJ, the principle of proportionality as a standard of review of EU action entails, as a rule, three tests. It must be established, first, whether the concerned measure is suitable to achieve the intended aim, second, whether it is necessary, and third, whether there is reasonable proportion between the adverse consequences on individuals’ interests and the advantage for the public interest. Nevertheless, it can be said that the ECJ and EGC seldom go through all three questions. In practice, the approach of both courts to proportionality 163

See, for instance, Court of Cassation, Commercial Section, 24 November 1998, appeal No. 94-20447; 17 December 1996, judgment No. 94-17601; 3 May 1995, appeal No. 94-10778; 8 March 1994, appeal No. 92-14394.

164

Court of Cassation, Civil Section III, 18 May 2005, appeal No. 04-11349; 4 February 2009, appeal No. 08-11.433.

165

Court of Cassation, Civil Section II, 23 October 2003, appeal No. 02-16303.

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varies considerably depending on the context.166 For instance, the ECJ ruled that in matters concerning the common agricultural policy, the EU legislature has a discretionary power that corresponds to the political responsibilities imposed on it by the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate with regard to the objective that the competent institution intends to pursue.167 The same orientation is followed by the ECJ in cases concerning measures adopted in the sphere of the common commercial policy168 or concerning situations that require the evaluation of a complex economic situation.169 On the contrary, the Court is prepared to adopt a stricter approach to proportionality when it has to decide on issues that do not raise general questions of economic policy. In cases involving an alleged violation of individuals’ property rights, the EU courts generally use the proportionality test to grade the standard in the context of the measure contested, and they mainly use it as the control of whether the aim pursued by the measure affecting the right of property corresponded to a general interest. This was especially the case when the Court had already checked the validity of the measure under the proportionality principle because it had been presented as a separate head of argument170 or when the aim of the measure was considered to be very important. The Bosphorus case is illustrative on this point. The facts concerned the impounding of an aircraft owned by the Yugoslavian national airline but leased by Bosphorus Airways. The ECJ acknowledged that ‘any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation 166

G. De Burca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) Yearbook of European Law 105-150; J. Jans, ‘Proportionality Revisited’ (2000) Legal Issues of Economic Integration 239-265; X. Groussot, General Principles of Community Law (Groningen: Europa Law Publishing, 2006), pp. 146 ff.

167

Case 265/87, Hermann Schräder HS Kraftfutter GmbH & Co. KG v. Hauptzollamt Gronau [1989] ECR 2237; joined cases C-296 and 307/93, French Republic and Ireland v. Commission of the European Communities [1996] ECR I-795; case C-120/99, Italian Republic v. Council of the European Union [2001] ECR 7997; Case T-125/01, José Martí Peix, SA v. Commission of the European Communities [2003] ECR II-865.

168

Case T-162/94, NMB France SARL, NMB-Minebea-GmbH, NMB UK Ltd and NMB Italia Srl v. Commission of the European Communities [1996] ECR II-427; case C-150/94, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union [1998] ECR I-7235; case T-340/99, Arne Mathisen AS v. Council of the European Union [2002] ECR II-2905.

169

Case 138/79, SA Roquette Frères v. Council of the European Communities [1980] ECR 3333; case C-4/96, Northern Ireland Fish Producers’ Organisation Ltd (NIFPO) and Northern Ireland Fishermen’s Federation v. Department of Agriculture for Northern Ireland [1998] ECR I-681; case C-179/95, Kingdom of Spain v. Council of the European Union [1999] ECR I-6475.

170

Case C-44/94, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte National Federation of Fishermen’s Organisations and others and Federation of Highlands and Islands Fishermen and others [1995] ECR I-3115.

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which led to the adoption of the sanctions’.171 Speaking to the compatibility of such measures with Bosphorus’ right to peaceful enjoyment of its property, the ECJ merely observed that ‘As compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, cannot be regarded as inappropriate or disproportionate’.172

Generally speaking, it can be said that proportionality as a standard of review for interferences with individuals’ property rights is concerned more with the suitability of the contested measure to protect the public interest than with the consequences of the action of EU institutions on individuals’ rights. As a result, an interference would likely be deemed proportionate insofar as it does not impinge upon the very substance of the right to property. By way of example of the cryptic approach to proportionality in property cases, in the Hauer case the ECJ held that an EC regulation limiting the new planting of vines was justified by objectives of general interest and did not ‘therefore infringe the substance of right of property’.173 Likewise, the ECJ upheld a Council directive imposing certain conditions on the spreading of fertiliser by considering that, even though it was liable to restrict the exercise by the farmers concerned, it had foremost to meet ‘requirements relating to the protection of public health, and thus pursue[d] an objective of general interest without the substance of the right to property being impaired’.174



8 Interferences with the Right of Property in Conflict of Rights Cases

It has been observed that the continuing expansion of the scope of fundamental rights gives rise to an increasing number of cases involving a conflict between two or more of them. Often such a conflict remains hidden since fundamental rights cases are brought before courts by individuals who claim that a particular rule or practice infringes their rights. Thus, judges will examine whether the fundamental right invoked in the specific case has been 171

Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others [1996] ECR I-3953, para. 22.

172 173

Ibidem, para. 26.

Hauer, supra footnote 121, para. 6.

174

Case C-293/97, The Queen v. Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex parte H.A. Standley and Others and D.G.D. Metson and Others [1999] ECR I-2603, para. 56.

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violated by applying the criteria elaborated to assess the legitimacy of restrictions imposed on that right. As Eva Brems points out, when another conflicting human right is involved, its potential violation due to the granting of the applicant’s claim is not among the legal questions directly addressed to the judge. It follows that ‘conflicts between fundamental rights are frequently not recognized as such, resulting in judgments that examine only whether the right invoked by the plaintiff was violated, without even naming the competing right’.175 The text of the ECHR acknowledges the possibility of conflicts between rights through the exception clauses attached to Articles 8-11, which allow Contracting States to limit the exercise of the rights therein proclaimed in order to protect the rights and freedoms of others. As for Article P1-1, the protection of the rights of others falls within the scope of the notion of general interest that, as interpreted by the ECtHR, can justify legislation restricting property rights to protect third parties’ rights or interests. Likewise, Article 52 (1) of the EU Charter of Fundamental Rights states, as a general rule, that the exercise of the proclaimed rights and freedoms may be restricted ‘to protect the rights and freedoms of others’. The idea that the legitimate sphere of action of each individual is limited by the need to protect the rights of others is not new. It is found, for instance, in Article 4 of the Declaration of 1789, which states that: ‘Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law’. Once the existence of a conflict between fundamental rights is recognized, however, a court cannot draw any guidelines from the above mentioned articles regarding how to reconcile individuals’ conflicting rights. Thus, it rests with the courts to set the appropriate standards to apply to such kind of cases. As remarked by Advocate General Eleanor Sharpston, the ideal solution for solving conflicts between fundamental rights would be ‘one that avoids making an invidious choice between two such rights’.176 The general approach adopted by the ECJ to that kind of case is the fair balance. However, Advocate General Juliane Kokott observed that the Court must be very cautious when it comes to weighing conflicting fundamental rights, and it prefers to leave the task of striking a fair balance between them to national courts.177 The ECJ developed a similar attitude toward cases involving a 175

E . Brems (ed.), Conflicts between Fundamental Rights (Antwerp: Intersentia, 2008), especially at pp. 3-4.

176

Opinion delivered on October 15, 2009, Case C-28/08 P, European Commission v. The Bavarian Lager Co. Ltd, [2010] ECR I-6055, para. 95. The case concerned two Community regulations that were adopted near the same time; one protected the right to access to documents and the other protected the right to privacy.

177

Opinion delivered on May 8, 2008, Case C-73/07, Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, [2008] ECR I-9831, para. 46.

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conflict between one of the four fundamental freedoms and fundamental rights by allowing a wide margin of discretion to the States.178 Likewise, the ECtHR emphasized that the ‘constant search for a balance between the fundamental rights of each individual constitutes the foundation of a “democratic society”’.179 In the matter of a potential conflict between rights, the balancing process involves a significant element of policy, so the ECtHR tends to allow to the States a broad margin of appreciation. The discretion left to the States is narrower with regard to cases where Convention rights collide or where the conflict is between one of the rights guaranteed by the Convention and rights from another source.180 The most common critique of the balancing metaphor as a judicial technique concerns the incommensurability of rights. The idea of balancing assumes the existence of a generally accepted scale according to which the importance of each right can be measured.181 However, scholars and domestic courts are divided on the issue of the existence of a hierarchy between fundamental rights.182 French courts do not set out any hierarchy, although they do seem to grant greater protection to some fundamental rights.183 On the contrary, the Italian Constitutional Court and judicial courts agree in recognizing the existence of a hierarchy between constitutionally protected values184 but do not set out any criteria for precisely defining that hierarchy because they regard it as moving.185 Accordingly, the criteria to apply for solving conflicts between constitutionally protected interests vary depending on the circumstances of each case. 178

Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich [2003] ECR I-5659, especially at para. 89-93. The case, extensively commented on by scholars, concerned an interference with the free movement of goods that was justified by the need to protect the freedom of expression and assembly.

179

C hassagnou, supra footnote 54, para. 113.

180

P. Ducoulombier, ‘Conflicts between Fundamental Rights and the European Court of Human Rights: An Overview’, in E. Brems (ed.), Conflicts between Fundamental Rights, cit., pp. 217-247, especially at p. 232.

181

O. De Schutter and F. Tulkens, ‘Rights in Conflict: The European Court on Human Rights as a Pragmatic Institution’, in E. Brems (ed.), Conflicts between Fundamental Rights, cit., pp. 169-216, especially at p. 191.

182

A mong the authors who argue in favour of the creation of a hierarchy of human rights, see D. Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 American Journal of International Law 291-323; D. Breillat, ‘La hiérarchie des droits de l’homme’, in Droit et politique à la croisée des cultures: Mélanges Philippe Ardant (Paris: L.G.D.J., 1999), pp. 353-372; F. Sudre, ‘Droits intangibles et/ou droits fondamentaux: y a-t-il des droits préeminents dans la Convention européenne des droits de l’homme?’, in Liber Amicorum Marc-André Eissen (Brussels and Paris: Bruylant-L.G.D.J., 1995), pp. 381-398.

183

With regard to the case law of the French Constitutional Council, see B. Mathieu and M. Verpeaux, Contentieux constitutionnel des droits fondamentaux (Paris: L.G.D.J., 2002), p. 499.

184 185

See, for instance, Constitutional Court, 23 July 1987, judgment No. 278, (1988) Foro italiano I, 748.

F. Modugno, La ragionevolezza nella giustizia costituzionale (Napoli: Edizioni scientifiche, 2007), p. 34.

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In a recent judgment, the Constitutional Court held hat ‘the supplementary effect on constitutional law of Article 117(1) of the Constitution must not be regarded as a hierarchical subordination to the ECHR provisions – considered in themselves, and hence irrespective of their function as interposed sources – on the part of ordinary legislation and, no less, the Constitution’; but the reference to international law obligations must rather constitute ‘an effective instrument for the broadening of that protection’.186 However when the implementation of international law obligations calls for broadening the scope of protection of a certain fundamental right, a balance must be struck with other constitutionally protected fundamental rights, which could be affected by the expansion of the right guaranteed by the Convention. The duty to strike such a balance lies primarily with the legislature and then with the Constitutional Court when interpreting the Constitution. Within the French legal order, the concept of constitutional objectives developed by the Constitutional Council to justify legal restrictions to constitutionally protected rights and freedoms entails the reconciliation of fundamental rights by means of the proportionality principle.187 Such a reconciliation lies first with the Parliament and second with the Constitutional Council whose discretion is, however, narrower than that of the Parliament. On this point, the Constitutional Council has consistently ruled that ‘Article 61 of the Constitution does not vest the Constitutional Council with any general power of appraisal and decision-making similar to that vested in Parliament. It merely confers upon it jurisdiction to rule on the conformity with the Constitution of statutes referred for review’.188 On the other hand, the competence of the Parliament to reconcile competing fundamental rights and freedoms derives from Article 34 Cost., which states that statutes shall determine the rules concerning ‘civic rights and the fundamental guarantees granted to the citizens for the exercise of their civil liberties’; this is expressly recognised by the Constitutional Council,189 whose task is to ensure that the reconciliation implemented by the legislature is not patently disproportionate or unbalanced. 186

Constitutional Court, 4 December 2009, judgment No. 317, para. 7, (2010) Rivista di diritto internazionale 180.

187

G. Drago, ‘La conciliation entre principes constitutionnels’ (1991) Recueil Dalloz chron. 265 ff.

188

For a recent decision, see Constitutional Council, 22 October 2009, decision No. 2009-590 DC, Rec. 179.

189

See, for instance, Constitutional Council, 29 July 1994, decision No. 94-345 DC, Rec. 106. The referral concerned the Act on the use of the French language, which prescribes that the use of French is compulsory in a number of contexts. In a obiter dictum the Council observed that the Parliament is, under Article 34 Cost., ‘entitled to enact rules concerning the exercise of freedom to express ideas and opinions and of freedom to speak, write and print, but since this is a fundamental freedom, all the more precious for being one of the essential safeguards of other rights and freedoms, Parliament should do so only in order to make the exercise of these liberties more effective or to reconcile it with other rules or principles of constitutional status’.

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In the following paragraphs, I will analyse cases involving a conflict between the right of property and other fundamental rights and examine the standards of judicial review used by the courts to settle the cases.



8.1 Right of Property v. Freedom of Expression

As pointed out by the ECtHR, freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.190 It is proclaimed by Article 10 of the ECHR and Article 11 of the EU Charter of Fundamental Rights. At the national level, it is also covered by constitutional protections.191 The Appleby case,192 decided by the ECtHR, constitutes the classic example of the tension between property and freedom of expression. The applicants sought to collect signatures and distribute leaflets in a privately owned shopping mall to oppose local authorities’ plans to build on a local park. They were prevented from doing so by the private company that owned most of the shopping area. The ECtHR was asked to decide whether the State owed a positive obligation to secure the exercise of the applicants’ freedom of expression and of association within the shopping mall. The applicants argued that ‘access to the town centre was essential for the exercise of those rights as it was the most effective way of communicating their ideas to the population’, and they maintained the need ‘to put in place a legal framework which provided effective protection for their rights of freedom of expression and peaceful assembly by balancing those rights against the rights of the property owner’.193 The ECtHR agreed with the applicants that the effective exercise of the right of expression may require the State to take positive measures of protection even in the sphere of relations between individuals. However, the Court considered that whether or not the State’s positive obligation existed in the specific case depended on whether there was another possible way for the applicants to exercise their right of expression in a meaningful manner. According to the Court, ‘notwithstanding the acknowledged importance of freedom of expression, [Article 10 ECHR] does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right 190 191

App. No. 5493/72, Handyside v. The United Kingdom [1976] ECtHR, para. 49.

See Article 21 of the Italian Constitution and Article 11 of the French Declaration of 1789.

192 193

Appleby, supra footnote 155.

Ibidem, para. 34.

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has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights. A corporate town where the entire municipality is controlled by a private body might be an example’.194

The Court found that, in the case at issue, the refusal of access did not have the effect of destroying the essence of the freedom of expression due to the number of alternative forums at the applicants’ disposal. Thus, the United Kingdom was not in breach of its positive obligations under Article 10 ECHR. The choice of the majority to give priority to the property rights of the owners of the shopping mall over the applicants’ freedom of expression and assembly was criticised by Judge Rait Maruste. Adding to the fair balance test additional factors other than those considered by the majority, such as the functional nature of the area and the expectations of the applicants, he concluded that ‘The public authorities did not carry out a balancing exercise and did not regulate how the privately owned forum publicum was to be used in the public interest. The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society’.195

Appleby can be compared to the Women on Waves case,196 which questioned the refusal of access to State property for the purpose of expression. The application was brought before the ECtHR by three organisations (one Dutch, two Portuguese) that aimed to promote debate around reproductive rights on board a chartered ship by means of seminars and workshops concerning sexually transmitted diseases, family planning, and the decriminalisation of abortion. The ship was banned from entering Portuguese territorial waters on the grounds that the planned activities would have promoted unlawful practices and created a danger to public health. To block the ship, the Portuguese government employed two warships. As in Appleby, the applicants complained of a violation of Article 10 ECHR, but the defendant government could not invoke Article P1-1 in this case.197 The ECtHR considered that the aims pursued by namely the protection of public order and health were legitimate. As for the proportionality of the interference, the Court affirmed that, although the applicants could have organised their 194 195

Ibidem, para. 47.

Ibidem, partly dissenting opinion of Judge Maruste.

196 197

App. No. 31276/05, Women on waves and others v. Portugal [2009] ECtHR.

A s shown in Chapter 2, governmental bodies and public corporations under the State’s strict control are not entitled to bring an application before the ECtHR. It follows that public property falls, in principle, outside the scope of Article P1-1.

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meetings on land, it was not merely the content of the ideas but also the means of communication, on board a ship, that was important to the applicants.198 The Portuguese Government relied on the Appleby case to maintain the State’s right to the exclusion of the ship from the territorial waters. On this point, the ECtHR emphasized that the case at issue had to be distinguished from the cited case for two reasons. First, the facts in Appleby concerned the exercise of the freedom of expression on privately owned land whereas the present case concerned Portuguese territorial waters that are a public and open space. Second, a negative instead of a positive obligation was at issue in the Women on Waves case, so the State consequently enjoyed a narrower margin of appreciation.199 Accordingly, the ECtHR concluded that the interference did not respond to a pressing social need, was not necessary in a democratic society, and thus had violated Article 10 ECHR. Despite the differences pinpointed by the Court, I would argue that the decisive factor determining the different approaches taken by the ECtHR was the fact that Women on Waves was not a conflict of rights case. The ECtHR thus adopted a more restrictive approach toward interferences with the freedom of expression. In the Appleby case, the Court considered that the interference would have been disproportionate only if the applicants had not had other forums at their disposal since the restriction on the private owner’s right to exclude for the purpose of ensuring the exercise of the freedom of expression must be the extrema ratio. On the contrary, in the Women on waves case the ECtHR argued that the possibility for the applicants to use other forums did not justify the State’s refusal to let the applicants enter Portuguese territorial waters.



8.1.1 Intellectual Property Rights v. Freedom of Expression

According to the well established case law of the ECtHR, restrictions on forms of expression do in principle fall within the scope Article 10, for it ‘protects not only the substance of the ideas and information expressed but also the form in which they are conveyed’.200 It follows that a conflict between Article P1-1 and Article 10 could arise with intellectual property legislation that prevents individuals from using the exact form of the works of others. Currently, there are no cases on this issue in the case law of the ECtHR; we can, however, mutatis mutandis, examine the France 2 case decided by the Commission.201 The applicant alleged a violation of Article 10 due to a prohibition against shooting a work of art without the consent of those entitled. Assessing the proportionality of the interference, the Commission observed that it was not in principle incumbent on ECHR institutions to regulate conflicts between the right to impart information and the rights of the author of the work of art 198

Women on waves, supra footnote 196, especially para. 39.

199

Ibidem, especially para. 40.

200 201

App. No. 73797/01, Kyprianou v. Cyprus [2005] ECtHR [G.C.] para. 174.

App. No. 30262/96, Société nationale de programmes France 2 v. France [1997] ECommHR.

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used for that purpose. Finally, the ECommHR concluded that the interference complied with the requirements of Article 10 since it was necessary to protects the rights of others. Regulations on intellectual property rights may also interfere with the freedom of expression of the copyright holder himself, as was illustrated by the Laserdisken case decided by the ECJ.202 The Court was asked to interpret the Copyright Directive203 to assess, in particular, whether it precluded a Member State from adopting rules, other than the EC rule, on the exhaustion of the authors’ exclusive right to authorise or prohibit any form of distribution to the public. Among other things, the Court considered the compatibility between the principle of the Community exhaustion of intellectual property rights and the freedom of expression. Referring to Article 10 ECHR, the ECJ interpreted the freedom of expression as including the right both to receive and impart information and ideas. As for the freedom of expression of the copyright holder, the ECJ considered that he was in a position to exercise his control over the first placing on the market of the object covered by that right, and, therefore, freedom of expression could not be relied upon to have the rule of exhaustion invalidated. With regard to the right to receive information, the claimant submitted that the EC rule interfered with the right to receive information by preventing imports from third countries. The ECJ relied on the exception clause contained in Article 10 ECHR, according to which the proclaimed right can be restricted in the public interest insofar as the interference is in accordance with the law, pursues a legitimate aim, and is necessary in a democratic society, thus maintaining that ‘the alleged restriction on the freedom to receive information [was] justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property’.204 From the foregoing, it follows that the European institutions adopted a cautious approach that allows domestic legislators a wide and unfettered latitude in striking a balance between conflicting fundamental rights. On the contrary, the French Constitutional Council adopted a more stringent scrutiny when it did not uphold the balance between intellectual property rights and freedom of expression struck by the Parliament in the Act Furthering the Diffusion and Protection of Creation on the Internet.205 The most controversial aspect of the act at issue concerned procedural safeguards afforded to Internet users who infringed copyright. Particularly contested was the possibility for the High Authority for the Diffusion of Works and Protection of Copyright on the Internet to block access to the Internet without the scrutiny of a court on the sole basis of finding manifest technical violations. The Constitutional Council considered whether the system of penalties provided by the law complied with 202 203

Case C-479/04, Laserdisken ApS v. Kulturministeriet [2006] ECR I-8089.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p. 10.

204 205

L aserdisken ApS, supra footnote 202, para. 65.

Constitutional Council, 10 June 2009, decision No. 2009-580, Rec. 107.

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the right to a fair trial and struck the necessary balance between copyright and freedom of expression. The Constitutional Council considered that ‘given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions’, Article 11 of the Declaration of 1789 was to be interpreted as including the freedom to access the Internet.206 Then, the Council stressed the conflict between the freedom of expression and the right of property by observing that to ‘fight against infringement of copyright through internet piracy is a response to the need to safeguard intellectual property’.207 The Council thus referred to Article 34 of the Constitution, which allows the Parliament ‘to lay down rules intended to reconcile the pursuit of the objective of fighting infringement of copyright on the internet with the right of free communication and freedom to speak, write and publish’. Considering that freedom of expression and communication are ‘one of the cornerstones of a democratic society and one of the guarantees of respect for other rights and freedoms’, the Council stressed that restrictions of such freedoms ‘must necessarily be adapted and proportionate to the purpose it is sought to achieve’.208 Therefore, vesting in an administrative authority the power to restrict ‘the right of any person to exercise his right to express himself and communicate freely, in particular from his own home’, was not proportionate with the purpose of protecting holders of copyright and related rights.209



8.2 Right to Respect for Private and Family Life v. Right of Property

The right to respect for private life enjoys both constitutional and supranational protection. Articles 13, 14, and 15 of the Italian Constitution protect the inviolability of personal liberty, domicile, and correspondence respectively. Moreover, the Constitutional Court affirmed explicitly that Article 2 Cost. guarantees the inviolability of an individual’s private life as well as his freedom to self-determination.210 In France, the right to respect for private life has been developed by the Constitutional Council on the basis, first, of Article 66 Cost. that protects individual freedoms and, second, of Article 2 of the Declaration of 1789. As for the ECHR, Article 8 guarantees the right to respect for private and family life, home, and correspondence. As observed by the ECtHR, the vague notion of respect for private life lends itself more readily to an evolutive interpretation than other articles of the Convention. Thus, emphasising that the notion of personal autonomy is an important principle underlying the interpretation of 206 207

208

Ibidem, para. 15.

209 210

Ibidem, para. 12.

Ibidem, para. 13. Ibidem, para. 15.

Constitutional Court, 24 July 2000, No. 332, (2000) Foro italiano I, 2739.

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Article 8, the Court gives protection to various aspects of the personal sphere of each individual, ranging from change of name211 to sexual identity,212 to personal history213 to aspects of physical and physiological integrity.214 Finally, the EU Charter of Fundamental Rights provides specific guarantees for the right to respect for both private life and personal data in Articles 7 and 8 respectively.215 Despite the broad scope of the right to respect for private life, there are few cases in which a conflict between it and the right of property arose before the courts considered in this study. One of those is the Promusicae case decided by the ECJ. The Court was asked to qualify the scope of the obligation to communicate personal data within the EU legislations concerning data protection.216 The reference to the ECJ was made in the course of domestic proceedings between Promusicae, a non-profit organisation of producers and publishers of musical and audiovisual recordings, and Telefónica, an Internet service provider. In order to bring civil proceedings for infringement of intellectual property rights against some users of file exchange programs, Promusicae asked Telefónica to disclose personal data relating to those users. The latter refused arguing that under national law it was allowed to provide such information only in connection with criminal investigations, or if it was necessary in order to protect public safety or national security. Thus, the ECJ had to decide whether the restriction on the obligation to communicate personal data set out by domestic law was consistent with the EU legislation at issue or whether the laws required the recognition of an obligation to communicate personal data in the context of civil proceedings to ensure the effective protection of copyright holders. The ECJ observed that the case raised ‘the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private 211

App. No. 16213/90, Burghartz v. Switzerland [1994] ECtHR.

212 213

C hristine Goodwin, supra footnote 36.

App. No. 10454/83, Gaskin v. The United Kingdom [1989] ECtHR.

214 215

App. No. 8978/80, X and Y v. the Netherlands [1985] ECtHR.

T he note from the Praesidium clarifies that Article 7 corresponds to Article 8 of the ECHR and that Article 8 is based on Article 16 TFEU, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as well as on Article 8 of the ECHR and the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data.

216

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; Directive 2004/48/ EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights; and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

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life on the one hand and the rights to protection of property and to an effective remedy on the other’.217 The ECJ stressed the need to reconcile the conflicting fundamental rights, but even this time, it did not engage in fair balancing but relied on the discretion left to the Member States by the Directives at issue. Accordingly, the ECJ stated that the Directives did ‘not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality’.218

Mutatis mutandi, the French Constitutional Council was asked to assess whether the Parliament succeeded in striking a balance between the right to privacy and the right of property in the above mentioned decision No. 2009-580. The parties making the referral of the Act Furthering the Diffusion and Protection of Creation on the Internet also contended that the statute referred for review produced a ‘patently unbalanced reconciliation between the protection of copyright and the right to privacy’. Regarding the right to privacy stricto sensu, it was argued that private agents could be vested with the power to monitor the Internet to collect the addresses of subscribers suspected of sharing files of protected works, thus implementing a system for private parties to use personal data to gather evidence of criminal offences. The Constitutional Council recalled that the liberty proclaimed by Article 2 of the Declaration of 1789 implies the right to privacy and posited that ‘it is the task of Parliament, under Article 34 of the Constitution, to lay down the rules concerning the fundamental guarantees granted to citizens for the exercising of their civil liberties. It is therefore incumbent upon it to strike a balance between the right to privacy and other constitutional requirements such as the protection of the right to property’.219

217

Case C-275/06, Productores de Música de España (Promusicae) v. Telefónica de España SAU [2008] ECR I-271 para. 65.

218

Ibidem, para. 70.

219

Constitutional Council, 10 June 2009, decision No. 2009-580, supra footnote 205, para. 22-23.

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On this point, the Constitutional Council merely observed that the authorization granted to private persons to collect data that made it indirectly possible to identify persons having a right of access to online public communication services could not ‘without constituting a disproportionate infringement of the right to privacy, have other purposes than to enable copyright holders to institute legal proceedings on the same footing as any natural person or legal entity who has been the victim of an offence’.220 In other words, the interference with the right to privacy is constitutionally legitimate insofar as it is actually aimed at the effective judicial protection of property rights.



8.2.1 Right of Property v. Environmental Rights

On several occasions, the ECtHR has recognised that the protection of the interests inherent to a productive activity falls within the scope of Article P1-1.221 Since industrial activities can have adverse effects on both the amenity value of an area and the quality of life of persons living in that area, property rights can enter into conflict with the right to respect for private life under Article 8 ECHR. Lopez Ostra is the leading case on the States’ responsibility in nuisance caused by third parties.222 The applicant complained of gas fumes, and a smell nuisance caused by a tannery waste treatment plant that was built and owned by a private company. Apart from the domestic legality of both the building and operation of the plant, which at the time was the object of pending proceedings before the national Supreme Court, the ECtHR considered whether the State had complied with the positive obligation to take the measures necessary for protecting the applicant’s right to respect for her home under Article 8. The ECtHR found that national authorities had not only failed to take the necessary steps but that they had contributed to prolonging the interference by appealing against a domestic court decision to close the plant temporarily. Moreover, the Court considered that the fact that for one year the applicant and her family had moved to a flat for which the municipality had paid the rent did not afford complete redress for the nuisance and so they found a violation of Article 8. The ECtHR recognized this environmental right and affirmed that States have, under Article 8 ECHR, a positive obligation to protect individuals’ homes from severe environmental pollution. The scope of such a positive obligation, as well as the limits of the ECtHR’s control, have been defined through subsequent case law. In particular, in the Moreno Gomez case, the Court explicitly stated that the right to respect for one’s home includes ‘not just the right to the actual 220 221

Ibidem, para. 27.

See, for instance, App. No. 12742/87, Pine Valley Development Ltd and others v. Ireland [1991] ECtHR, concerning the development of land industry; App. No. 12033/86, Fredin (No. 1) v. Sweden [1991] ECtHR, concerning the gravel mining industry; App. No. 2544/04, Adelfoi Io. Verri A.e. Choirotrofiki Epicheiris v. Greece [2006] ECtHR, concerning the activity of pig farming.

222

App. No. 16798/90, Lopez Ostra v. Spain [1994] ECtHR.

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physical area, but also to the quiet enjoyment of that area’, and that this right could be broken not only by a concrete or physical action but also by immaterial interferences such as noise, emissions, and smells.223 Since applicants under the ECHR always act against the State, to decide nuisance cases the ECtHR seeks to determine whether there is State responsibility for failing to protect the applicant’s right. In other words, the ECtHR requires States to control interferences with Convention rights deriving from the action of third parties. However, States’ positive obligations to protect individuals’ homes against polluting emissions arise only when there is a sufficient nexus between the noxious activity and the State. Therefore, the first step is to assess whether the State could reasonably be expected to act in order to prevent or put an end to the environmental nuisance. This is the case, for instance, when the source of environmental pollution is known or easily definable because the State has an obligation to regulate private-sector activities properly.224 In any case, the ECtHR does not directly take into account the proprietary interests of the one who causes the nuisance, which, when that is a private party, fall in principle under the scope of Article P1-1. For the Court, the proprietary interests of the one causing the nuisance are not distinct from the general interest to the community’s economic well-being, so the conflict between fundamental rights remains hidden. Accordingly, when a State’s decisions affecting environmental policy are at issue, the ECtHR focuses its control on two aspects: the decision-making process and the substantive merits of the government’s decision.225 223

App. No. 4143/02, Moreno Gomez v. Spain [2004] ECtHR, para. 53. In this case, the applicant complained about excessive noise suffered because of the proximity of numerous nightclubs. The Court considered that the case did ‘not concern interference by public authorities with the right to respect for the home, but their failure to take action to put a stop to third-party breaches of the right relied on by the applicant’ (para. 57). To resolve the case, the Court had to assess the level of the severity of the nuisance in order to determine whether the minimum level of severity required for the nuisance to constitute a violation of Article 8 was reached. Considering that for several years the volume of the noise at night exceeded the maximum level permitted by national law, the Court found ‘that the respondent State has failed to discharge its positive obligation to guarantee the applicant’s right to respect for her home and her private life, in breach of Article 8 of the Convention’ (para. 62).

224

See App. No. 36022/97, Hatton and others v. The United Kingdom [2003] ECtHR, which concerned regulations on night flying at Heathrow airport. Interestingly, the scope of the State’s positive obligation at issue was not limited to protection against severe environmental pollution in progress but also included protection against ‘the dangerous effects of an activity to which the individuals concerned are likely to be exposed’.

225

See App. No. 14967/89, Guerra v. Italy [1998] ECtHR; App. No. 46117/99, Taşkin and others v. Turkey [2004] ECtHR. In the first case, the applicants, who lived in a town near a chemical factory, complained that the State had failed to provide information to local residents about the risk of pollution and about what to do in the event of an accident at the factory. The Court found that Article 8 had been breached because the State failed to give the applicants essential information that would have enabled them to assess the risks that they and their families might face if they continued to live near the factory. The

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As regards judicial review on the decision-making process, the ECtHR considers all the procedural aspects (i.e., the type of policy or decision involved, the extent to which the decision-making procedure leaves room for the views of individuals, and the procedural safeguards available). Yet, as far as substantive merit is concerned, the Court concedes to States a wide margin of appreciation considering that national authorities are in principle better placed to determine the most appropriate environmental policies. Against this framework, the States’ positive obligation to regulate private industries properly is the source of an actionable nuisance under Article 8. To accommodate the conflicting interests of the property user causing the nuisance and the holder of the right to respect for private life, the ECtHR refers to the criterion of the minimum level of severity. Therefore, the nuisance must directly affect individuals’ homes, and it has to attain a minimum level of seriousness. For instance, in the Kyrtatos case, the ECtHR denied that environmental nuisances deriving from urban development reached the sufficient degree of severity in order to declare Article 8 applicable.226 Then, in the Fadeyeva case, the Court developed the seriousness standard taking as tertium comparations ‘the environmental hazards inherent to life in every modern city’.227



8.2.2 Right of Property v. Right to Respect for Home

The ECtHR has repeatedly held that protection of tenants’ interests is a legitimate aim to restrict property rights.228 In other cases, it accepted that the protection of tenants’ interests in the house come within the second case, the Taşkin case, was brought before the ECtHR by ten Turkish nationals who lived in a village near a gold mine and who complained about the national authorities’ decision to issue a permit to operate the gold mine using the cyanidation process, which was likely to pollute the surrounding lands to a serious degree. The ECtHR considered that the decision-making process leading to the permission to carry on a polluting activity did not comply with the procedural requirements attached to Article 8 and on those grounds found a violation of that Article. 226

App. No. 41666/98, Kyrtatos v. Greece [2003] ECtHR, especially para. 52. The applicants complained that urban development had destroyed a swamp that was adjacent to their home, thus depriving them of the enjoyment of the scenic beauty of the area. Moreover, they maintained that new buildings placed in the area were a source of noise and night light nuisance.

227

Fadeyeva, supra footnote 90, para. 69.

228

See, for instance, App. No. 18072/91, Velosa Barreto v. Portugal [1995] ECtHR. The applicant complained that the national courts disallowed him from terminating a tenancy contract on the house he inherited from his parents and in which he would have been able to live with his own family. Due to the impossibility of taking possession of the inherited house, the applicant was obliged to continue living in a rented house with his parents in law. The ECtHR considered the complaint under both Articles 8 and P1-1, and it ruled that neither of the two articles ‘go so far as to place the State under an obligation to give a landlord the right to recover possession of a rented house on request and in any circumstances’ (para. 24). Then, given the actual facts of the case, it stated that the social protection of the tenants outweighed the landlord’s interest.

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scope of Article 8 of the Convention.229 Therefore, within the framework of the ECHR, tenants’ interests count not only as part of the notion of general interest, but become individual rights by means of Article 8. Accordingly, in the Ćosić case,230 the ECtHR recognized that the applicant enjoyed a right to respect for her home under Article 8 even though the lease on the flat where she was living had expired and she had no further legal entitlement to occupy the apartment. The applicant complained that the domestic authorities had violated her right to respect for her home by ordering her eviction from her State-owned flat where she had been living for more than eighteen years. The contested eviction order was issued by national courts under a domestic law regulating ownership that allowed an owner to seek repossession of his property when the current possessor was not entitled to possess it. The ECtHR considered that the obligation imposed on the applicant to leave the flat amounted to an interference with her right to respect for her home and that such an interference pursued the legitimate aim of protecting the rights of the owner. The ECtHR then reviewed the measure at issue on the grounds of proportionality, thus framing the conflict between the tenant and the owner in terms of a Convention right against a public interest. Referring to previous case law, the ECtHR recalled in particular the different degrees of discretion left to Contracting States under Articles P1-1 and 8. Then, stressing that procedural safeguards available to individuals are especially material in determining whether the respondent State had remained within its margin of appreciation, the Court criticised the formalistic legal reasoning of the national courts, whose decisions were based exclusively on the applicable domestic law. In particular, the ECtHR observed that ‘the national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention’.231

229

See, for instance, App. No. 40016/98, Karner v. Austria [2003] ECtHR. The ECtHR found a violation of Article 14 taken in conjunction with Article 8 because the national Supreme Court denied the applicant the status of life companion (within the definition of the Rent Act) in relation to the late tenant of the flat in which he lived, and thus prevented him from succeeding in tenancy. According to the ECtHR, the defendant State did not offer convincing and weighty reasons to justify the interpretation of the domestic legislation at issue as granting the right to succeed to a tenancy exclusively to heterosexual couples.

230 231

App. No. 28261/06, Ćosić v. Croatia [2009] ECtHR.

Ibidem, para. 21.

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Accordingly, the ECtHR concluded that since the applicant did not have any opportunity to have ‘the proportionality and reasonableness of the measure to be determined by an independent tribunal in the light of the relevant principles under Article 8’, there had been a violation of the Article.232 The finding of the lack of adequate procedural safeguards thus prevented the ECtHR from assessing the proportionality of the contested measure by taking into account the interests of both the applicant and the owner of the flat through the fair balance test. The conflict between the two rights therefore did not gather prominence. However, in a dissenting opinion attached to a subsequent judgment concerning the same legislation, Judge Giorgio Malinverni recalled that the owner of a flat has the right to dispose freely of that property. He maintained that ‘an eviction order against a tenant occupying a flat owned by a third party issued on the grounds that the tenant is occupying a flat without a valid legal basis is not as such contrary to the Convention, regard being had to the guarantees under Article 1 of Protocol No. 1 to the Convention’.233

Thus, Judge Maliverni clarified that the rights invoked by the individual were to be measured against the rights of the owner of the flat.234 Ćosić can, mutatis mutandis, be compared to the Ghigo case. In the latter, the applicant complained about legislation that subjected his house to a continuing tenancy for twenty-two years, which caused significant reductions in the amount of rent chargeable and allowed only a minimal profit. In the final analysis, the ECtHR had to decide whether or not the particular habitation constituted a home within the meaning of Article 8, which it did on the basis of ascertaining if the person has established a sufficient and continuous link with the property concerned.235 It could thus be argued that the tenant of Mr. Ghigo enjoyed a 232 233

Ibidem, para. 22-23.

App. No. 3572/06, Paulić v. Croatia [2009] ECtHR, dissenting opinion of Judge Malinverni, para. 6.

234

T his was despite the fact that the owner in this case was the State, on the basis of which it could be argued that Article P1-1 was not applicable.

235

By virtue of the application of the autonomous interpretation method, the Commission affirmed that ‘‘home’ is an autonomous concept which does not depend on classification under domestic law’ (App. No. 38387/97, Khatun and others v. The United Kingdom [1998] ECtHR). According to ECtHR case law, the concept of home includes, for instance, ‘property on which it is planned to built a house for residential purposes’ (App. No. 15318/89, Loizidou v. Turkey [GC] [1996] ECtHR, para. 66), caravans (App. No. 20348/92, Buckley v. United Kingdom [1996] ECtHR), and professional office and business premises (App. No. 13710/88, Niemietz v. Germany [1992] ECtHR, especially para. 31; App. No. 37971/97, Société Colas Est. v. France [2002] ECtHR, especially para. 41). Moreover, the Court explicitly stated that is not necessary for a residence to have been lawfully established. Thus, in the Gillow case for instance, the Court held that the applicants, who had owned but not lived in their house for almost nineteen years, could indeed consider it as a home for the purposes of Article 8 because they had a continuing intention to come back to that house, as was proved by the fact that they had left their furniture in it and that they

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right to respect for home under Article 8 ECHR; however, the ECtHR was asked to decide whether the above mentioned regulation met the requirements of Article P1-1.236 Accordingly, the tenant’s interest were represented before the ECtHR by the State, which argued that the contested legislation pursued the legitimate aims of preventing homelessness as well as protecting the dignity of poorly-off tenants. The ECtHR referred to the margin of appreciation doctrine to affirm that ‘in spheres such as housing of the population, States necessarily enjoy a wide margin of appreciation not only in regard to the existence of the problem of general concern warranting measures for control of individual property but also to the choice of the measures and their implementation. The State control over levels of rent is one such measure and its application may often cause significant reductions in the amount of rent chargeable’.237

Even so, the State’s discretion is not unlimited. Therefore, the ECtHR examined whether the Maltese government succeeded in striking the requisite fair balance between the general interests of the community and the protection of the applicant’s rights of property, and thus avoided facing a conflict between two Convention rights. With regard to the extremely low amount of the rental value and to the fact that the applicant’s house had been requisitioned for more than 22 years, the ECtHR blamed the defendant State for having imposed on the applicant most of the social and financial costs of supplying housing accommodation to a third party and his family. Accordingly, the Court found that there had been a violation of Article P1-1. An issue similar to those tackled by the ECtHR arose before the Italian Constitutional Court, which was asked to review the balance between the conflicting interests of landlords and tenants as struck by the legislature in a regulation concerning withdrawal from tenancy contract. The legislation at issue equated the effects of withdrawal from tenancy contracts without considering the housing needs of the landlord. The Constitutional Court found that it was not reasonable to balance the conflicting interests of landlords and tenants by applying the same criteria whether the landlord needed his property to house himself or his family, or to pursue an economic activity. According to the Court, the purpose of the constitutional guarantee for private property, which required the legislature to recognize the owner’s housing needs as well, by not placing a disproportionate burden on a landlord who intended to withdrawal from a tenancy, was to favour the use of property as a house for the owner or his family had not established any other home elsewhere in the United Kingdom (App. No. 9063/80, Gillow v. The United Kingdom [1986] ECtHR). 236

App. No. 31122/05, Ghigo v. Malta [2006] ECtHR. Also see App. No. 17647/04, Edwards v. Malta [2006] ECtHR and App. No. 47045/06, Amato Gauci v. Malta [2009] ECtHR.

237

Ghigo, supra, para. 67.

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(even when the proprietary interests had to be reconciled with the other constitutionally protected interests of the tenant himself).238 The Constitutional Court has thus proceeded to balance the conflicting interests by considering that, even in the lack of a clearly stated hierarchy of values, property interests related to the dignity and personhood of the owner deserve stronger protection than those that have a strictly commercial or entrepreneurial nature.

Conclusion The idea that European States share common values is at the very foundation of both the Council of Europe and European Union. The protection of these values thus underlies the development of both ECHR and EU law. In particular, the rule of law, human dignity, equality, and solidarity form a set of common values that now permeates the different legal systems considered and directs the courts’ approaches to the protection of fundamental rights. Since the end of World War II, human dignity has become a major legal principle at both the international and national levels, giving voice to the political will to restore respect for the person and for human dignity, after the fall of the Nazis and fascist regimes. During the drafting of the Universal Declaration of Human Rights, which was the reference model for the ECHR, the concept of dignity offered common ground to the drafters, who held very different religious and philosophical beliefs. The idea that the individual has rights deriving from the very fact of existing as a human being paved the way for the entrance of the individual person on the scene of international law, and marked the beginning of a new era in human rights law. Modern human rights law put a new emphasis on equality. The French Revolution first propagated the idea that all individuals have equal rights, but this idea acquires a new meaning under modern constitutions and international instruments meant to protect human rights. The proclamation of the principle of equality no longer implies only a formal equality; it now requires States to take positive actions to eliminate all kinds of discrimination, including those between private parties. The States’ liability toward individuals has been extended through the concept of solidarity and the correlated idea of social rights has become more prominent. At the supranational level, increasing references to solidarity in EU legal texts and documents are evidence of the development of a European Social Model that addresses social policy issues within EU law. At the same time, the ECtHR is extrapolating the social aspect of the 238

Constitutional Court, 5 October 1983, judgment No. 300, (1983) Foro italiano I, 2933. The case dealt with the compensation owed by a landlord to a tenant who had used the property to exercise an economic activity; the Court considered that calculating the compensation on the basis of the market rent price was not reasonable because the landlord intended to recover his property to use it as his home.

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Convention’s provisions without, however, imposing a radical social agenda on the Contracting States. Finally, the rule of law principle, subjecting governments to the law, and constraining arbitrary exercise of power, is at the very core of fundamental rights protection. Within ECHR law in particular, the rule of law has played a major role in the development of the ECtHR’s standards of interpretation and application of Convention rights. Provisions on the protection of the right of property aim, prima facie, to guarantee individuals against arbitrary interferences with their property rights. Courts have thus developed different standards of justification for interferences that are all based, in the last analysis, on the proportionality principle. Within the ECtHR’s jurisprudence, proportionality has become a mode of ‘judicial governance’.239 Its function is to leave broad discretion to the Strasbourg judges in determining which values to prioritise. As for EU law, the principle of proportionality has the nature of a general principle and now enjoys Treaty status. The ECJ and EGC refer to it as a requirement of the legitimacy of measures interfering with the exercise of property rights, but their reasoning on how interests have to be identified, valued, and compared is cryptic. More generally, the approach to judicial review by the ECJ and EGC is highly deferential to the EU legislature.240 A parallel can thus be drawn between the attitude of domestic constitutional courts and EU courts insofar as they tend to attach more importance to policy considerations, rather than to the actual facts of a case. The proportionality principle also underpins the standards of judicial review developed by national courts. The analysis of the Italian and French constitutional jurisprudence shows that the Italian Constitutional Court and the French Constitutional Council adopt standards of justification that entail proportionality considerations and whose purpose is restricted to safeguarding the very essence or substance of the right of property. Such standards of justification are highly deferential to the legislature. On the other hand, the political systems laid down by both the Italian and French Constitutions require the abstention of the judiciary from interfering with the economic policy choices endorsed by the Parliament, given that this institution is the custodian of representative democracy. Accordingly, courts tend to exercise self-restraint when asked to review the assessment of general interest purposes made by the legislature. To conclude, it is worth noticing that the legitimate aim requirement has been used by the ECtHR as a means to hide conflicts between fundamental rights. Since the protection of an individual right to the detriment of the 239

A . Stone Sweet and J. Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008-09) 47 Columbia Journal of Transnational Law 73-165 at 161.

240

See also X. Groussot, General Principles of Community Law, cit., especially p. 157; M. Cartabia (ed.), I diritti in azione: universalità e pluralismo dei diritti fondamentali nelle Corti europee (Bologna: Il Mulino, 2007), p. 48. The authors observe that EU courts have rarely found a violation of fundamental rights deriving from the action of EU institutions whereas they have more often condemned Member States for violating fundamental rights.

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applicant’s fundamental right is generally analysed by the ECtHR in terms of a legitimate aim in the public interest, the conflict between rights is turned into a conflict between a fundamental right and the general interest. This modus operandi of the Court is not entirely satisfactory. As remarked by Eva Brems with regard to ECtHR case law dealing with conflicting human rights, ‘although both human rights are equally fundamental and a priori carry equal weight, they do not come before the judge in a equal manner. The right that is invoked by the applicant receives most attention, because the question to be answered by the judge is whether or not this right was violated. That granting the applicant’s claim would violate another human right is an element that is advanced in the arguments of the defendant. Through these arguments, it may find its way to the judge’s reasoning in the judgment, but it is not among the legal questions to be directly addressed by the judge’.241

The risk is thus that the applicant’s rights will be prioritized because of the way in which the issue is framed before the Court, which does not necessarily carry out a balancing of the conflicting fundamental rights. Indeed, as a matter of fact, the ECtHR usually pays little attention to the analysis of the public interest side of the balancing test: it is concerned with the burden imposed on the applicant, rather than with the justifications for restrictions to his property rights.

241

E . Brems (ed.), Conflicts between Fundamental Rights, cit., p. 3.

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Introduction In the previous Chapter, I sought to explain the values underlying the protection of fundamental rights at both the national and European levels, as well as the standards of judicial review developed by courts to enforce the protection of property rights. This chapter addresses the extent to which judicial review is value oriented and examines which values prevail in adjudicating property cases.



1 The Rule of Law and the Proceduralisation of the Right of Property

The ECtHR’s jurisprudence on Article P1-1 focuses on the rule of law principle, which, as illustrated in the previous chapter, governs the lawfulness standard and grounds the substantive duties of the States. Indeed, according to the Strasbourg Court, the rule of law requires ‘states not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation.’1 Furthermore, as was recently made clear by the ECtHR in the Saghinadze case, the rule of law also applies to the reasoning, or lack of thereof, behind national judgments themselves. The case at issue concerned the eviction of internally displaced persons. During the armed conflict of the early 1990s, Mr. Saghinadze fled with his family to Georgia’s capital, Tbilisi, where he worked for the Ministry of the Interior, which provided him with the use of a cottage. He lived there peacefully with his family for more than ten years until he was evicted by agents from the special forces. The eviction was unlawful under Georgian law and specifically contrary to the protection given to internally displaced persons. The ECtHR observed that the Georgian Supreme Court had contradicted its own case law in this matter and emphasized that ‘where such manifestly conflicting rulings stem from the same jurisdiction, and no reasonable explanation is given for the divergence, such rulings smack of arbitrariness’.2 The ECtHR thus concluded that ‘the interference with the applicant’s peaceful enjoyment of his possession was not lawful, whilst the subsequent judicial review, having been arbitrary, amounted to a denial of justice’,3 so it declared that there had been a violation of Article P1-1. As this decision shows, the rule of law, as interpreted by the ECtHR, demands substantive rights to judicial protection and good governance obligations.

1

App. No. 31443/96, Broniowski v. Poland [2004] ECtHR [G.C.], para. 184.

2 3

App. No. 18768/05, Saghinadze and others v. Georgia [2010] ECtHR, para. 116.

 Ibidem, para. 117.

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1.1 Right to Judicial Protection

As explained in Chapter 2 (§1.4.1.3), States are under a positive obligation to provide procedural guarantees enabling national courts and tribunals to adjudicate all cases concerning property matters effectively and fairly. According to the ECtHR, the lack of procedural safeguards that afford the concerned individual or entity with a reasonable opportunity to present his case to the relevant authorities for the purpose of effectively challenging the measures interfering with his right of property upsets the fair balance between the requirements of public interest and the protection of the right to the peaceful enjoyment of one’s possessions. The Megadat.com and the Plechanow cases are illustrative of this point. In the Megadat.com case, 4 the applicant company complained that its telecommunications licences were invalidated because it had failed to notify the relevant regulatory board of a change of address. The applicant was the only one from a long list of companies to which such a severe sanction was applied. Its administrative complaint against the regulatory board was ultimately dismissed by the Moldovan courts, and the applicant’s licences were withdrawn. The business was thus forced to close down. The Court noted that the applicant had never been given an opportunity to appear before the regulatory board, or to explain its position, and that, in the appeal proceedings, the case had been decided in its absence. Indeed, the Moldovan courts’ examination of the case had been formalistic, having been carried out without balancing the general issue at stake with the sanction applied. Due to the arbitrariness of the proceedings, the discriminatory treatment of the applicant company, and the disproportionately harsh measures applied against it, the ECtHR found that a fair balance was not preserved and the applicant company was required to bear a particular and excessive burden in violation of Article P1-1. The Plechanow case treated the alleged unfairness of national court decisions refusing the applicants’ claim for compensation with regard to expropriation of their property. The applicants’ claim under domestic law failed because they sued the wrong defendant. The ECtHR remarked that the procedural positive obligation attached to Article P1-1 ‘applies with all the more force when it is the State itself which is in dispute with an individual’,5 and with regard to the circumstances of the case, the Court especially affirmed that ‘when a public entity is liable for damages, the State’s positive obligation to facilitate identification of the correct defendant is all the more important’.6 Accordingly, the failure by the State to comply with its positive obligation upset the fair balance between the demands of the public interest and the need to protect the applicant’s rights. 4 5

App. No. 21151/04, Megadat.com Srl v. Moldova [2008] ECtHR.

App. No. 22279/04, Plechanow v. Poland [2009] ECtHR, para. 100.

6

 Ibidem, para. 109.

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For the right to judicial protection to be effective there is to be, inter alia, respect for and effective enforcement of courts’ judgments. In the Saffi case, the Court expressly affirmed that ‘while it may be accepted that Contracting States may, in exceptional circumstances and, by availing themselves of their margin of appreciation to control the use of property, intervene in proceedings for the enforcement of a judicial decision, the consequence of such intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined’.7

Consistent with this dictum, the ECtHR stated that the authorities’ refusal to execute a final court decision ordering the demolition of a building that had been illegally built, and that impaired a neighbour’s property rights, had no basis in domestic law. This was contrary to the general principle of the rule of law, and constituted a violation of Article P1-1.8 Likewise, in the Ventorino case the ECtHR found a breach of Article P1-1, because of the failure of domestic authorities to enforce a summary judgment (decreto ingiuntivo).9 Contrary to the ECtHR, the ECJ did not mention the States’ positive obligation to provide judicial procedures to challenge measures interfering with their right of property. Nevertheless, in the Kadi judgment, the ECJ found a violation of the right of property on the specific grounds that ‘the contested regulation, in so far as it concern[ed] Mr. Kadi, was adopted without furnishing any guarantee enabling him to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and actual continuation of the freezing measures affecting him’.10

To briefly recall the facts of the case, the applicants demanded the annulment of an EU regulation implementing a UN Security Council resolution that laid 7

App. No. 22774/93, Immobiliare Saffi v. Italy [1999] ECtHR [G.C.] para. 74. The applicant complained of a violation of Article P1-1 and 6 ECHR because it had been unable, over a prolonged period of time, to enforce an order for possession because given that the police refused assistance. According to the Court, there had been a disproportionate interference with the applicant’s property rights, and therefore a violation of Article P1-1, because the applicant was left for approximately eleven years in a state of uncertainty as to when it would be able to repossess its apartment. The Court further considered that the repeated delays in the enforcement of the order for possession without the necessary procedural guarantees created a situation incompatible with the principle of the rule of law and thus also found a violation of Article 6 ECHR.

8

App. No. 15918/89, Antonetto v. Italy [2000] ECtHR, especially para. 35.

9

App. No. 357/07, Ventorino v. Italy [2011] ECtHR.

10

Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351, para. 369.

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down certain restrictive measures concerning property, imposing the freezing of funds and economic resources. The applicants argued, inter alia, that the regulation had been enacted in violation of their fundamental right to property. Considering that the EU did not enjoy any discretion in adopting the contested act, the EGC observed that it did not have the authority to review, even indirectly, the lawfulness of the resolution of the Security Council in light of the EU law. Nonetheless, the EGC found itself empowered ‘to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible’.11 According to the EGC, the jus cogens affords protection to the right of property only against arbitrary deprivation,12 which had not occurred in the cases at issue. On appeal, the ECJ came to a different conclusion . With regard to the breach of the right of property, the ECJ held that, in principle, the freezing measure could have been justified. Nevertheless, it found that, in the circumstances of the case, the regulation violated the applicant’s right of property because it did not provide any procedural guarantee enabling the person targeted to put his case before the competent authorities. The ECJ gave up the jus cogens theory and expressly referred to Article P1-1, which allowed the ECJ to introduce the due process condition as a material element in the assessment of whether or not the applicants’ fundamental right to respect for property had been infringed.13 Along with the violation of the right of property, the ECJ found that the regulation at issue did not respect the right of defence and the right to an effective remedy. Both are general principles of EU law stemming from the constitutional traditions common to the Member States as proclaimed by Articles 6 and 13 of the ECHR and then reaffirmed by Article 47 of the EU Charter of Fundamental Rights.14 The ECJ held, in particular, that the principle of judicial protection required that the individuals concerned by the contested sanctioning measure should have been informed about the grounds on which their names had been included on the sanctions list. The notification of reasons served a rule of lawbased rationale that enabled the persons placed under sanctioning measures to defend their rights and the ECJ to review the lawfulness of the EU measure in 11

Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2005] ECR II-3533, para. 277; case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II-3649, para. 226.

12

Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II-3649, para. 242.

13

Cases C-402 and 415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351, especially para. 368.

14

 Ibidem, para. 335.

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question.15 However, the ECJ also observed that granting the concerned persons the right to be heard in advance or communicating to them the reasons supporting their inclusion on the sanctions list would have prejudiced the effectiveness of the sanction itself. Furthermore, the Court accepted that overriding considerations concerning security militated against the communication of certain matters to the persons affected by the contested sanctions, and therefore limited the scope of due process rights.16 This did not mean, however, that such measures could not be reviewed . As pointed out by the Advocate General, ‘the fact that the measures at issue [were] intended to suppress international terrorism should not inhibit the Court from fulfilling its duty to preserve the rule of law. In doing so, rather than trespassing into the domain of politics, the Court is reaffirming the limits that the law imposes on certain political decisions[...]. The court’s responsibility is to guarantee that what may be politically expedient at a particular moment also complies with the rule of law without which, in the long run, no democratic society can truly prosper’.17

This reasoning was followed by the ECJ when it stated that it was its task was ‘to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice’.18

According to the ECJ, the contested measures failed to settle the appropriate balance between the two competing demands because the appellants were not informed of the evidence used against them to justify the restrictive measures imposed nor enjoyed the right to be informed of that evidence within a reasonable period after those measures were enacted. Therefore, the ECJ found that the applicants’ right of defence, in particular the right to be heard, had been violated.19 Furthermore, the fact that the contested regulation was adopted without respecting the appellants’ rights of defence also infringed the right to an effective judicial protection because the lack of information about the evidence adduced against the applicants prevented them from defending their rights before the Community judicature.20 15

 Ibidem, para. 337.

16 17

 Ibidem, para. 340-342.

Opinion of Mr. Advocate General delivered on January 23, 2008, para. 45.

18

Cases C-402 and 415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351, para. 344.

19

 Ibidem, para. 348.

20

 Ibidem, para. 349-352.

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The existence of appropriate procedural safeguards also plays a substantive role in France. According to Nicolas Molfessis, the French Constitutional Council upholds certain procedural guarantees for the right of property.21 In particular, according to Molfessis, the Constitutional Council considers the existence of specific procedures to protect the interests of an owner affected by referred legislations as a material element in deciding whether there is a violation of the right of property. For instance, in decision No. 85-198 DC concerning an easement in favour of Télédiffusion de France to install equipment for telecasting on private properties, the Constitutional Council found that the interference with the right of property pursued a general interest and was not so serious as to empty the right of property of all meaning. Nonetheless, the referred legislation was unconstitutional because it did not provide any procedure to avoid the risk of arbitrariness in the choice of properties subject to the easement.22 Then, in decision No. 92-316, the Constitutional Council found a piece of legislation unconstitutional because it did not set out sufficient procedural guarantees. In particular, the challenged statute provided that the authority for the prevention of corruption could require individuals to hand over documents without stating reasons for demanding them. Moreover, it was left to the authority’s discretion to keep the documents for an indefinite period. The Constitutional Council considered that this excessively impaired the right of property.23 Closely linked to the respect for procedural guarantees is the obligation on the legislature to state clearly the aim of general interest pursued in order to allow the effective judicial review of measures restricting individuals’ rights. Accordingly, legislation allowing restrictions on the right of property without laying down the grounds of general interest upon which the restrictions were based is unconstitutional. The question of constitutionality concerned, among others, the rules governing the transfer of property in French Polynesia. In particular, the legislation in question required the authorisation of the territorial Council of Ministers as a condition for the validity of property transfer transactions without specifying the grounds of the general interest that formed the basis for the deliberations of Council of Ministers subject to judicial review. The Constitutional Council observed that since the courts would not have the possibility of reviewing the legality of the refusal of the authorisation effectively, restrictions on the freedom to dispose of property would have ultimately depended on the administrative authority’s discretion. The Council then found that such a situation amounted to a violation of the right of property protected by Article 17 of the Declaration of 1789.24 Similarly, the Constitutional Council declared a statute restricting hunting rights unconstitutional because the legislature failed to state the general interest pursued by the measure. Asked to rule on the constitutionality of a piece 21

N. Molfessis, Le Conseil constitutionnel et le droit privé (Paris: L.G.D.J., 1997), pp. 91-95.

22 23

Constitutional Council, 13 December 1985, decision No. 85-198, para. 9-12, Rec. 78.

Constitutional Council, 20 January 1993, decision No. 92-316 DC, para. 13 et 16.

24

Constitutional Council, 9 April 1996, decision No. 96-373 DC, Rec. 43.

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of legislation that prohibited hunting on Wednesdays, or on a different day as decided by local authorities, the Council considered that the one day hunting ban did not constitute per se an impairment of such gravity so as to denature the meaning and scope of the right of property. However, it required that the ban at issue be justified by the general interest. In the case of the Wednesday hunting ban, this justification was found in the protection of school-age children, although a reason was not specified for the discretion left to local authorities to choose a different day.25 Finally, the authorities’ refusal to enforce the courts’ decisions on property issues can amount to a violation of the right of property within the French legal order. By way of example, in the Gaz de France case, which concerned the recovery of possession of an illegally occupied building, the Council of State affirmed that the refusal to have recourse to public force to enforce an eviction order impaired the freedom to dispose of property. Considering that the owner could neither rent out the property, nor carry out the sale he had planned, the Supreme Administrative Court affirmed that, although the State was obliged to compensate Gaz de France for the damages that resulted from its refusal to resort to the police force, the interference with the freedom to dispose of property was to be considered serious.26 The Italian Constitutional Court recently recognized, with some encouragement from the ECtHR, the unconstitutionality of rules on constructive expropriation that legitimized ex post disregard for procedural rules. Constructive expropriation first found a statutory basis with regard to public residential housing work carried out on the basis of an expropriation order that had been declared unlawful by a final judgment (Article 3 of law No. 458 on October 27, 1988).27 It was then codified in Article 43 of the Presidential Decree No. 327 on June 8, 2001.28 Questions of constitutionality were first raised with regard to Article 3 of law No. 458 of 1988. According to some Courts, Article 42 Cost. limited the public authority’s power to expropriate to cases previously specified by the legislature. Violation of this principle prevented private parties of procedural guarantees through which they could present arguments for a more adequate and impartial assessment of the public interest. The Constitutional Court affirmed 25

Constitutional Council, 20 July 2000, decision No. 2000-434DC, Rec. 107, especially para. 31.

26 27

Council of State, 21 November 2002, decision No. 251726.

The text of the article read as follows: ‘Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final, but such a person may not claim restitution of his property. Further, such a person is entitled, in addition to compensation for damage, to sums payable in respect of monetary depreciation and to any other sums mentioned in Article 1224 § 2 of the Civil Code, such amounts being calculated from the date of the unlawful taking of possession’.

28

This is the Code of Legislative Provisions and Regulations on Expropriation in the Public Interest (hereafter, the Code on Expropriation).

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instead that the legislature could directly provide for expropriation as long as it served the public interest and just compensation was paid.29 A few years later, the Constitutional Court addressed the specific issue of the constitutionality of this principle, which, as developed by case law, linked the transfer of ownership to the unlawful action of public authorities. The Constitutional Court held that constructive expropriation amounted to a mode of acquiring property, that its rationale was to be found in the balance between public and private interests, and that its regulation was a concrete manifestation of the social function of property. Considering that the realization of public works on the land transformed the soil to the point that there was no more an identity between the land acquired by the public authority and that taken from the private owner, the Constitutional Court denied that constructive expropriation was within the scope of Article 42(3) Cost., and considered it instead as a case of original acquisition of property.30 Such a theory of constructive expropriation as a mode of acquiring property elaborated by the Constitutional Court did not, however, remove all doubts about the constitutionality of the institution under discussion. Indeed, according to Article 42(2) Cost., only the legislature can set the restrictions and grounds for the termination of property rights.31 The law on constructive expropriation was codified in Article 43 of the Code on Expropriation, which provided that, lacking an expropriation order, or a declaration stating that the expropriation was in the public interest, the land that had been altered following the construction of public works was transferred, by means of an act of acquisition adopted ex post, into the ownership of the authority that had altered it. In this case, the former owner of the land was entitled to damages, but such a way to acquire property was admitted even when town planning measures, or the declaration that the expropriation was in the public interest, had been set aside. Only in recent years, under the pressure of the ECtHR’s judgments,32 has the Italian Constitutional Court begun to show more concern for procedural fairness and the legality principle. Thus, following the ECtHR’s jurisprudence, the Constitutional Court started to question the legitimacy of constructive expropriation. For instance, in a judgment delivered in 2007, it affirmed that 29 30 31

Constitutional Court, 31 July 1990, judgment No. 384, (1992) Foro italiano I, 1073.

Constitutional Court, 23 May 1995, judgment No. 188, (1996) Foro italiano I, 464.

Also see C. Falcone, Occupazione acquisitiva e principio di legalità (Napoli: Edizioni Scientifiche Italiane, 2002).

32

As said, subsequently to the Belvedere Alberghiera and Carbonara and Ventura cases, the ECtHR has condemned Italy for several violations of P1-1 because of the lack of clear and predictable rules concerning the transfer of property in cases of constructive expropriation and the lack of adequate mechanisms to afford redress and adequate compensation. In principle, the ECtHR held that constructive expropriation, being ‘intended to confirm a de facto situation arising from unlawful acts committed by the authorities and to deal with the consequences for the owner and the authorities in the latter’s favour’ could not constitute an alternative to expropriation in due form. See, among others, App. No. 58858/00, Guiso-Gallisay v. Italy [2005] ECtHR, para. 87.

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‘the fair balance between public and private interests cannot be considered to be satisfied by provisions which enable the state authorities to acquire property other than through lawful procedures and to maintain the public works project created, without at least paying complete compensation for the harm caused, corresponding to the market value of the property’.33 Finally, the Constitutional Court declared that Article 43 of the Code on Expropriation was unconstitutional in its judgment No. 293 of October 8, 2010. The Court found that the Code was in breach of Article 76 Cost., which governs the exercise of delegated legislative powers by the government.34 The government was entitled, in view of the promulgation of the Code on Expropriation, to consolidate provisions already in force, but the Code instead made some changes in the law, in particular with regard to constructive expropriation. According to Article 43 of the Code, the institution at issue also applied to easements, which ran contrary to what was previously established by the courts; moreover, it unduly fixed the transfer of title at the time of the adoption of the act of acquisition. Therefore, the Constitutional Court declared that the government acted beyond the powers conferred to it. Yet, in the light of the ECtHR’s case law, the Constitutional Court affirmed in an obiter dictum that the transposition into law of an institution that could give rise to the same negative consequences of the constructive expropriation would not be sufficient in itself to remedy the serious violation of the legality principle. A new article 42-bis has now been introduced in the Code of Expropriation to regulate all cases where, although there was an illegal taking of private property, the public work on the land in question was completed. The person thus illegally deprived of property must receive an indemnity for the pecuniary and non pecuniary loss. The latter corresponds to a lump sum equal to 10% of the market value of the asset; whereas the indemnity for the pecuniary loss must cover the market value of the property illegally acquired by the public authority.



1.2 Good Governance Obligations

As interpreted by the ECtHR, the rule of law principle also entails good governance obligations for public authorities. This means that they 33

Constitutional Court, 24 October 2007, judgment No. 349, (2008) Foro italiano I, 39. The Constitutional Court held that the challenged legislation, which provided that compensation for constructive expropriation had to be equivalent to the compensation that would have been payable on a formal expropriation, plus a 10% increase, breached Article P1-1 because it did not provide full redress of the harm suffered as a result of constructive expropriation in favour of public authorities. Accordingly, the Court found that the national legislation was unconstitutional because it violated Article 117(1) Cost. The Finance Act 2007 (law No. 244 of December 24, 2007) fixed the compensation due to the market value of the expropriated property with no possibility of a reduction.

34

The article recites that ‘The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified purposes’.

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must act in an appropriate manner to avoid creating situations of legal uncertainty. Thus, for instance, in the Stran Greek Refineries case, the ECtHR found that the Greek government violated both Article P1-1 and 6 ECHR by passing a law that ensured that the result of pending proceedings would be favourable to the State. The facts of the case originated in the attempts of the applicants to recover the sum awarded to them by an arbitration court following a claim for damages for breach of contract by the State, which was the other party of the contract. The State contested the validity of the arbitration clause before domestic ordinary civil courts. Shortly before the hearing in the Court of Cassation, the Greek government enacted a law that sought to deprive of effect any arbitration awards concluded after the termination of contracts, thus effectively excluding any meaningful examination of the applicant’s case by the Court of Cassation. This infringed the applicants’ rights under Article 6§1 ‘by intervening in a manner which was decisive to ensure that the – imminent – outcome of proceedings in which it was a party was favourable to it’.35 Then, the ECtHR considered that by ‘choosing to intervene at that stage of the proceedings in the Court of Cassation by a law which invoked the termination of the contract in question in order to declare void the arbitration clause and to annul the arbitration award’, the legislature interfered in a disproportionate way with the applicants’ rights under Article P1-1. The obligation for public authorities to ‘act in good time, in an appropriate manner and with utmost consistency’ has been upheld by the ECtHR since the Beyeler case.36 The facts of the case concerned the purchase in 1977 of a painting by Vincent Van Gogh through an intermediary acting for an undisclosed purchaser, Mr. Beyeler. Consequently, the declaration of sale that the vendor filed in accordance with the law did not mention the name of the applicant. In 1983, the Italian Ministry learnt that Mr. Beyeler was the real purchaser of the painting. In 1988, the applicant sold the painting. Some months after the sale, the Italian Government exercised its right of pre-emption and purchased the painting at the 1977 sale price, arguing that Mr. Beyeler had omitted to inform the Ministry about the fact that the painting had been purchased in 1977 on his behalf. The ECtHR was asked to decide whether the Italian Ministry of Cultural Heritage’s exercise of its right of pre-emption infringed the applicant’s right to the peaceful enjoyment of his possessions. The Court analysed the interference under the general rule set forth in the first sentence of the first paragraph of Article P1-1. Assessing whether there was a fair balance between the demands of the general interest of the community and the requirements of the protection of the applicant’s right of property, the Court considered that the fact that ‘the applicant had not acted openly and honestly carrie[d] some weight’.37 Even so, the Court considered that the Italian authorities had largely contributed in creating a situation of uncertainty and derived an unjust enrichment from such 35

App. No. 13427/87, Stran Greek Refineries and Stratis Andreadis v. Greece [1994] ECtHR, para. 50.

36 37

App. No. 33202/96, Beyeler v. Italy [2000] ECtHR [G.C.] para. 120.

 Ibidem, para. 116.

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situation. It concluded that the burden sustained by the applicant was disproportionate and excessive, contrary to Article P1-1. The ECtHR referred to good governance obligations in various other cases, pointing out that ‘as the guardian of public order, the State has a moral obligation to lead by example and a duty to ensure that the bodies it has charged with the protection of public order follow that example’.38 Moreover, it stated explicitly that ‘in the context of property rights, particular importance must be attached to the principle of good governance’.39 This entails, in particular, that ‘the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned’. 40 It follows that when an interference with Article P1-1 results from a mistake ‘caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive’. 41 An instance of this approach is the Moskal case, in which the ECtHR found that the revocation of erroneously awarded social benefit payments amounted to a violation of Article P1-1. The Court emphasized that authorities have to act with the utmost scrupulousness when dealing with matters of vital importance for individuals, such as welfare benefits. Thus, even though public authorities must be able to correct their mistakes, they have nonetheless to take particular care in preventing individuals from bearing excessive hardship as a result of their errors. Considering, on one hand, that the social benefit payment concerned constituted the applicant’s sole source of income, and on the other, that there was a potential risk, in view of her age and the economic reality of the country that the applicant might have considerable difficulty in securing new employment, the Court found that the burden placed on the applicant was excessive. Similarly, in the Gashi case, which concerned the annulment of the sale of a house, the ECtHR considered that the nullification of the applicant’s property title in proceedings instigated by the same office that had consented to the sale contract giving that title to the applicant contravened the principle of legal certainty. The ECtHR affirmed, first of all, that it was within its power to review how the relevant national authorities had specifically applied the domestic law on contracts. The ECtHR then attached special weight to the fact that the purchase of the flat in question was under the control of the State Attorney’s Office, which gave its prior approval to it. According to the ECtHR, given that the relevant domestic authorities had an opportunity to verify the contract in question and to prevent its taking effect, the risk of any mistake was the fault of the State. Therefore, ‘the manner in which the litigation ended [did] not appear 38

App. No. 34049/96, Zwierzyński v. Poland [2001] ECtHR. Also see App. No. 63252/00, Păduraru v. Romania [2005] ECtHR; Megadat.com, supra footnote 4.

39

App. No. 10373/05, Moskal v. Poland [2009] ECtHR, para. 72.

40 41

App. No. 32457/05, Gashi v. Croatia [2007] ECtHR, para. 40.

 Moskal, supra footnote 39, para. 73.

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to have been consistent with the State’s obligation to deal with the applicant’s situation in as coherent a manner as possible’. 42 The ECtHR adopted a similar approach in the Trgo case. The applicant alleged, in particular, that his rights under Article P1-1 had been violated because of the domestic court’s refusal to acknowledge his ownership of certain plots of land he had acquired by virtue of legislation on adverse possession, which had been abrogated by the national Constitutional Court while the civil proceeding for the declaration of his ownership was pending. The ECtHR stated that ‘the applicant, who reasonably relied on legislation, later on abrogated as unconstitutional, should not – in the absence of any damage to the rights of other persons – bear the consequences of the State’s own mistake committed by enacting such unconstitutional legislation’, 43 and concluded that there had accordingly been a violation of Article P1-1. Turning to French law, situations of legal uncertainty would be irreconcilable with French constitutional principles. Accordingly, legislation regulating property rights that creates a situation of legal uncertainty is unconstitutional. For instance, in decision No. 94-346, the Constitutional Council held that a legislative act introducing a state of uncertainty as to the actual owner of certain immovable properties was unconstitutional. 44 In particular, the referred legislation provided that the holder of a permit to use public land, having a maximum duration of sixty years, could enjoy a right in rem on the immovable properties he built to carry on the activity for which the permit was issued and that would have been transferred to the State at the expiration of the permit. The Constitutional Council found that the power granted by the contested legislation to the private party to renew indefinitely his title on the immovable properties impaired the right of public property and was, therefore, unconstitutional.



2 The Principle of Equality and the Monetization of the Right of Property

Human rights law regards equality as a distinct value that requires not only that law must be applied equally (its formal requirement), but also that the content of law must not unjustifiably discriminate (its substantive requirement). These concerns allow courts to review both aspects of the law. Within the ECtHR case law on Article P1-1, the formal requirement enshrined in the equality principle is, for instance, at the basis of the jurisprudence protecting social security rights. As said, although the Convention does not provide any substantive right to social security, the ECtHR established its competence to review the criteria adopted by the States to grant social security 42 43

Gashi, supra footnote 40, para. 40.

App. No. 35298/04, Trgo v. Croatia [2009] ECtHR, para. 67.

44

Constitutional Council, 21 July 1994, decision No. 94-346 DC, Rec. 96.

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benefits to check whether domestic law discloses a discriminatory treatment contrary to Article 14 read together with Article P1-1 ECHR. To assess whether the substantive requirement is met, the ECtHR relies on the reasonableness standard. For instance, provided that national authorities enjoy a wide margin of appreciation in determining the types of loss resulting from the measure for which compensation is to be made, the ECtHR considered whether Finnish legislation that imposed fishing prohibitions and recognized the possibility of applying for compensation for economic losses only for professional fishermen was consistent with Article P1-1. The Court held that it was not unreasonable ‘for the authorities to distinguish between losses linked to livelihood and the effects on enjoyment of property which are not so connected’, and ruled that the legislation in question did not violate Article P1-1. 45 The EU courts also interpreted the equality principle in a substantive way when considering how it treats direct and indirect discrimination, as was illustrated by the Phil Collins and Tod’s cases respectively. In the first case, 46 a domestic court cast doubts on the respect of the principle of non-discrimination on the grounds of nationality47 of a provision of German Copyright Act. This law enabled German nationals to oppose the unauthorised reproduction of their performances irrespective of the territory where the performance took place, whereas foreign artists obtained such protection only for performances taking place in Germany. To answer the question of whether national copyright law was subject to the prohibition of discrimination laid down in the Treaty, the ECJ observed that the exclusive rights conferred by literary and artistic property affected trade in goods and services as well as competition; it thus concluded that such rights fell within the scope of application of the Treaty as far as the principle of non-discrimination was concerned. Therefore to comply with EU law principles, German courts had to enable performing artists from other Member States to prohibit the marketing in Germany of unauthorised performances given outside the German territory. The Tod’s case48 concerned he applicability, within EU Member States, of the Berne Convention for the protection of literary and artistic works, which led to a distinction based on the criterion of the work’s country of origin. In particular, under that Convention works protected in the Member States of origin solely as designs and models in other Member States were only entitled to such protection as was granted there to designs and models, and thus could not claim the higher protection offered by copyright law in that State. Therefore, the ECJ examined whether the Berne Convention introduced an indirect discrimination by reason of nationality by adopting a distinguishing criterion 45

App. No. 33538/96, Alatulkkila and others v. Finland [2005] ECtHR, para. 67.

46

ECJ Joined cases C-92/92 and C-326/92, Phil Collins v. Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v. EMI Electrola GmbH [1993] ECR I-5145.

47

Article 18 TFEU, former Article 7 EEC Treaty and 12 EC Treaty.

48

Case C-28/04, Tod’s SpA and Tod’s France SARL v. Heyraud SA [2005] ECR I-5781.

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based on the country of origin of the work. For unpublished work, the Convention established that the country of origin was the State of which the author was a national, whereas for published work, the country of origin was essentially the State where the work was first published. Considering that ‘the author of a work first published in a Member State will, in the majority of cases, be a national of that State, whereas the author of a work published in another Member State will generally be a person who is not a national of the first Member State’, 49 the ECJ concluded that the application of the Berne Convention gave rise to indirect discrimination on the grounds of nationality. Moreover, since no objective justification supported such difference in treatment, the ECJ found the Convention’s rules at issue contrary to the general principle of non‑discrimination on grounds of nationality, which ‘must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work’.50 The Italian Constitutional Court has adopted a clear stance against inequalities between proprietary rights by relying on the conjoint reading of the social function clause with the reasonableness principle. Inequality issues have been raised in particular within the framework of town planning legislation. Since the end of World War II, the institution of expropriation has became the preferential tool to implement town planning schemes. As a result, the owners whose land was subject to planning restrictions were plainly put in a situation of disadvantage compared to their neighbours.51 Such an inequality could be reduced through taxation or compensation.52 Going beyond the strict interpretation of Article 42 Cost., which sets out the principle of compensation only for expropriation, the Constitutional Court affirmed that restrictions to the owner’s right to build directed to implement town planning could not last indefinitely. Therefore, these restrictions must end after a reasonable time, or the owner must be compensated.53 49 50 51

 Ibidem, para. 26.

 Ibidem, para. 36.

On this point see A.M. Sandulli, ‘Urbanistica e finanza comunale’ (1962) Rivista giuridica dell’edilizia 151-154.

52

R. Chieppa, ‘Le garanzie della proprietà privata e il pensiero di Aldo M. Sandulli’, in Aldo M. Sandulli (1914-1984): Attualità del pensiero giuridico del Maestro (Milano: Giuffrè, 2004), pp. 433-533; Chieppa posits that tax measures intended for owners of lands that have increased in value by reason of urbanization works are unsatisfactory. The author, a former judge of the Constitutional Court, criticises in particular the interpretation by which lands included in town planning are considered to be building sites for the purposes of local housing rates (in Italian, Imposta Comunale sugli Immobili) even though those plans may not be implemented.

53

Constitutional Court, 22 December 1989, judgment No. 575, (1990) Foro italiano I, 1130. Also see Constitutional Court, 20 May 1999, judgment No. 179, (1999) Foro italiano I, 1705. The Court referred to different possible forms of compensation including, for instance, the allocation to the owner of other areas suitable for his needs.

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The issue of the quantum of compensation due to the owner of land was repeatedly brought before the Constitutional Court, especially with regards to expropriation cases. As a general rule, the Constitutional Court stated that the legislature cannot provide only a symbolic compensation but must grant serious relief to the dispossessed landowner. For instance, the Constitutional Court declared the unconstitutionality of legislation that had been enacted in 1953 in regard to land occupation that occurred during the war. That legislation provided that compensation should be established considering the value of property at the moment when it was occupied, without the payment of interest. Considering currency depreciation, the Court held that this method of calculation obliged to the payment of a symbolic compensation, which was contrary to Article 42 Cost.54 Furthermore, compensation has to be just and reasonable.55 Therefore the criteria to calculate the amount of compensation must take into account the essential features of the expropriated land, as well as its potential economic utilization.56 This does not, however, entail that the amount of compensation must be exactly related to the selling value of the property concerned. Accordingly, in judgment No. 348 of 2007, the Constitutional Court remarked that ‘the Parliament is not under any duty to set compensation for expropriation at the full market value of the seized property. Article 42 of the Constitution stipulates that the law must recognise private property rights, but emphasises their “social function”. The latter must be interpreted, by the legislature and the courts, jointly with Article 2 of the Constitution, which places on all citizens imperative duties of economic and social solidarity. Too high levels of compensation costs for building land areas intended for use in the public interest could prejudice the effective protection of fundamental rights provided for in the Constitution (inter alia health, education, housing) and could act as an excessive restraint on the creation of the infrastructure necessary for an efficient exercise of private economic initiative’.57 54 55

Constitutional Court, 29 December 1959, judgment No. 67.

Constitutional Court, 12 February 1960, judgment No. 5. The Court held that it was consistent with the Constitution to employ criteria based on the average of the market value and rents from the last decade or, failing that, the rateable value of the land.

56

Constitutional Court, 30 January 1980, judgment No. 5. The Court affirmed that the amount of compensation due for expropriation could not be based in all cases on the mean agricultural value of the land. Under the Constitution, the concrete economic use of the property concerned must be taken into account.

57

Constitutional Court, 12 February 1960, judgment No. 5, para. 5.7. In this judgment the Constitutional Court declared that compensation, whose amount in practice varied between 30 and 50 percent of the market value of the expropriated property, violated the requirements established by the case law of the ECtHR, or by the Italian Constitution. At present, Article 37 of the Consolidation Act on expropriation provides that compensation due for the expropriation of building sites must be equivalent to the selling value of the property concerned. Compensation is reduced by 25 percent when the expropriation is intended to implement social and economic reforms.

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Lately, the Constitutional Court relied on Article P1-1 to overrule its previous decision on the constitutionality of the criteria adopted by the legislature to compensate expropriated farmland owners. Emphasising that according to the ECtHR’s case law the owner who is deprived of property has the right to obtain compensation reasonably related to the value of the expropriated land, the Constitutional Court remarked that the contested legislation related compensation to the average farm value to be calculated considering the crop in place. This rule did not take into account the specific features of the expropriated land, such as its position and its intrinsic value. It followed that this abstract approach was unconstitutional, as it was lacking a reasonable link with the venal value of the property, required by the case law of the ECtHR. Moreover, it also violated the requirement that the owner should receive serious relief in the case of expropriation, as established by the Constitutional Court.58 The Italian Constitutional Court also relied on the equality principle to declare the unconstitutionality of legislation governing the economic aspects of the institution of constructive expropriation. In a 1996 judgment, the Constitutional Court stressed the difference between expropriation and constructive expropriation from the economic point of view, and declared that setting of the quantum of damages for constructive expropriation at the same level of the amount of compensation due for expropriation under domestic law was unconstitutional. The Court emphasized that ‘whilst the compensation measure – an obligation ex lege for lawful acts – constitutes the point of equilibrium between the public interest in the completion of the project and the interest of the private individual in conserving the property, the quantum of damages – an obligation ex delicto – must strike a different balance between the public interest in the maintenance of the project already carried out and the reaction of the legal system to the breach of the rule of law, because of the unlawful manipulation-destruction of the private property’.

Therefore, ‘according to the principle of inherent reasonableness (ex Art. 3 Cost.), since in cases of constructive expropriation the public interest is already essentially satisfied by the fact that the property cannot be restored and by the conservation of the public works project, the equalization of the quantum of damages with the amount of compensation presents itself as an extra factor which upsets the balance between the conflicting public and private interests in favour of the former’.

58

Constitutional Court 10 June 2011, judgment No. 181, (2011) Giustizia civile 7-8, I, 1657; (2011) Giustizia civile 9, I, 1943.

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The Court concluded that such a weak response by the legal system to the unlawful act carried out by the public authority was also contrary to Article 42(2) Cost.59 Finally, relying on the constitutional right to health, as well as the principles of equality and solidarity, the Italian Constitutional Court declared the unconstitutionality of Article 1052 c.c. insofar as it did not allow granting the right of way in cases in which it was necessary to ensure adequate access to residential buildings for people with disabilities.60 The contested article provided that the owner of non-enclosed land could claim the right of way when the existing access to public way was unfit for, or inadequate to, the requirements of agriculture or industry. The Constitutional Court emphasized that the lack of access to the public way, hindering the development of a social life by the disabled person, resulted in an interference with his right to a normal life. Therefore, the failure to recognise to people with disabilities full access to their houses created a situation of de facto inequality contrary to both Articles 2 and 3 Cost. Within the French legal order, the principle of equality as a part of the bloc de constitutionnalité offers an additional guarantee for the right of property by requiring that all owners enjoy the same rights. For instance, in decision No. 85-198 DC concerning the compensation due from Télédiffusion de France to private and public owners for the installation and maintenance of telecasting equipment, the Constitutional Council relied on the principle of equality to hold that provisions granting the compensation for damages resulting at the moment of installation but not for those caused by the permanent presence of that equipment on the property, were unconstitutional.61 According to the Council, Article 17 of the Declaration was not applicable in this case because the burden imposed on the concerned properties did not amount to a deprivation of property. On the other hand, inequalities of treatment between owners with regard to compensation led the Constitutional Council to find a violation of Article 17 of the Declaration of 1789 in cases involving a deprivation or compulsory transfer of property, as in the case of the Nationalisation Act of 1981. Considering the provision that set down the criteria to calculate the amount of compensation, the Constitutional Council observed that differences in the amount of compensation depended not only on objective economic and financial data but also on the model of company management adopted by the companies concerned. Therefore, the Council concluded that the just compensation requirement laid down in Article 17 of the Declaration of 1789 was not met.62 In other cases, the French Constitutional Council referred to equality to strengthen the constitutional protection for the right of property. Thus, it interpreted the equality principle as an additional foundation of the principle elaborated on the basis of Article 17 of the Declaration of 1789, according to 59

Constitutional Court, 2 November 1996, judgment No. 369, (1997) Foro italiano I, 2400.

60 61

Constitutional Court, 10 May 1999, judgment No. 167, (1999) Foro italiano I, 2164.

Constitutional Council, 13 December 1985, decision No. 85-198, Rec. 78.

62

Constitutional Council, 16 January 1982, decision No. 81-132 DC, para. 55-60.

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which public enterprises cannot be transferred to private owners at a price below their market value.63 Finally, some decisions of the Court of Cassation follow the ECtHR’s jurisprudence in declaring that differences in treatment with regard to entitlements to welfare benefits must be objective and reasonable, and cannot be based on the sole grounds of nationality.64



3 Dignity, Solidarity and the Socialization of the Right of Property

Relying on the principle of respect for human dignity, the French Constitutional Council proclaimed that every person shall have access to decent housing. To pursue such a constitutional objective, the legislature could adopt measures restricting landlords’ property rights. For instance, in decision No. 98-403,65 the Constitutional Council was asked to review the constitutionality of legislation establishing a procedure for the requisition of buildings owned by legal persons whenever they could be used for residential purposes and that were vacant for more than eighteen months. Considering that the law stated that the requisition could not last more than six years, the Constitutional Council found that the interference with the right of property amounted to a temporary limitation of the right to use property that was not so serious as to deprive the right of property of its content and scope. The Constitutional Council then considered the procedural guarantees provided to the owner and concluded that the interference with the right of property met the constitutional requirements insofar as the procedural guarantees laid down by the referred act were interpreted in conformity with its decision.66 From a later decision of the Constitutional Council, it followed that the constitutional objective of providing decent housing for every person can justify not only restrictions on the landlord’s right to use, but also positive obligations for the owner, who can be required to ensure that his property conforms to the decent housing standards imposed by law on pain of reduction of rent.67 Moreover, in case of expropriation of housing that is not occupied by the owner and that is qualified as irretrievably unhealthy by public authorities, the amount of compensation is reduced by detracting the cost of demolition of the building and of the relocation of its occupants. Declaring the constitutionality 63

Constitutional Council, 26 June 1986, decision No. 86-207 DC, para. 58, Rec. 61; 18 September 1986, decision 86-217 DC, para. 47, Rec. 141.

64

Court of Cassation, Civil Section II, 19 February 2009, appeal No. 07-21426; Court of Cassation, Civil Section II, 21 December 2006, appeal No. 30-586; Court of Cassation, Social Section, 14 January 1999, appeal No. 97-12487.

65

Constitutional Council, 29 July 1998, decision No. 98-403 DC, Rec. 276.

66 67

Ibidem. See, in particular, para. 32.

Constitutional Council, 7 December 2000, decision No. 2000-436 DC, para. 54, Rec. 176.

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of that provision of the law, the Constitutional Council observed that the rule under discussion burdens the owner of the building with costs deriving from the obligations that he would have to fulfil but that in actual fact have been acquitted by the community.68 Likewise, the need to protect individual dignity has been invoked by Italian courts to restrict landlords’ property rights in order to meet housing needs. Some courts held that the protection of individual dignity can justify both restrictions to the landlords’ right to terminate a tenancy contract69 and to illegal occupation of housing.70 No right to housing is, however, granted by the ECHR or the ECtHR by means of a dynamic interpretation of the text of the Convention.71 The ECtHR stated expressly that ‘While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision’.72

In a later case, the ECtHR added that since the Convention gives no right to be provided with a home, ‘the scope of any positive obligation to house the homeless must be limited’.73 68

Constitutional Council, 17 September 2010, decision No. 2010-26 QPC, J.O. of 18 September 2010, 16951.

69

Pretore Gallarate, 20 December 1982, (1983) Giurisprudenza costituzionale II, 1314; Pretore Torino, 26 January 1982, (1983) Giurisprudenza italiana I, 2, 209.

70

Pretore Roma, 7 March 1978, (1980) Foro italiano II, 74; Pretore Genova, 28 January 1991, (1991) Cassazione Penale I, 1139.

71

Judge Pettiti maintained the contrary in his dissenting opinion to the Buckley judgment. According to Pettiti, ‘the minimum right to accommodation, [is] one of the constituents of Article 8 (Art. 8), where the accommodation is a substantial and essential part of family life’ (App. No. 20348/92, Buckley v. The United Kingdom [1996] ECtHR, dissenting opinion).

72

App. No. 27238/95, Chapman v. The United Kingdom, [2001] ECtHR [G.C.], para. 99. The case concerned an application brought by a British gypsy family who argued that the refusal of planning permission to station a caravan on its land was a violation of Articles 8 and 14, 6, and P1-1. With regards to Articles 8 and P1-1, the ECtHR found that the interference with the applicants’ rights at issue was proportionate to the legitimate aim of preserving the environment. Subsequently, in the Codona case, the ECtHR specified that not even the positive obligation to facilitate minority ways of life could establish a positive obligation to create an accommodation (App. No. 485/05, Codona v. The United Kingdom [2006] ECtHR (dec)).

73

App. No. 39022/97, O’Rourke v. The United Kingdom [2001] ECtHR (dec.). The Court declared the applicant’s complaint to be manifestly ill-founded; according to the complaint, the applicant had to suffer an arbitrary interference of his rights under Article 8 ECHR because of his eviction from a hotel room assigned to him as temporary accommodation when he was released from prison.

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Given the above, applicants’ housing needs are however among the social factors that the ECtHR takes into consideration to assess the proportionality of interferences with Article P1-1. In particular, dealing with the restitution of property nationalised under Communist regimes, the ECtHR established that in this matter the fair balance test shall be based on three main groups of factors: ‘(i) whether or not the applicants had acquired the property from the State in good faith and without being able to influence the terms of the transaction [...]; (ii) the amount of the compensation paid compared to the value of the property [...]; and (iii) “social” factors, such as whether the property at issue was the applicants’ only housing available and their chances to purchase another dwelling’.74

But could the right to a minimum standard of living as a form of effective protection of human dignity be developed by the ECtHR under Article P1-1 by means of the positive obligations doctrine? This seems very unlikely for at least two reasons. First, even though the ECtHR’s case law stipulates that social allowances are to be regarded as possessions because of their pecuniary nature, the Court in principle lacks the competence to review national social policy behind the awarding of welfare allowances. Thus, in the Larioshina case, the ECtHR declared inadmissible the applicant’s complaint about the insufficient amount of pension and other social benefits that she received by affirming that ‘in principle, it cannot substitute itself for the national authorities in assessing or reviewing the level of financial benefits available under a social assistance scheme’.75 Second, the ECtHR clarified, in its early jurisprudence, that ‘the right of everyone to the peaceful enjoyment of his possessions applies only to a person’s existing possessions and that it does not guarantee the right to acquire possessions’.76 This principle was originally formulated to exclude the hope that inheriting could be regarded as possession within Article P1-1 and has also been used by the ECtHR to rule out the possibility of using Article P1-1 to derive the right ‘to receive a social security benefit or pension payment of any kind or amount, unless national law provides for such an entitlement’.77 From a different perspective, however, the ECtHR stated that it ‘cannot exclude that State responsibility could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference

74

App. No. 43278/98, 45437-48014-48380-51362-53367/99, 60036/00, 73465/01, and 194/02, Velikovi and others v. Bulgaria [2007] ECtHR, para. 181.

75

App. No. 56869/00, Larioshina v. Russia [2002] ECtHR (dec.). Also see, mutatis mutandis, App. No. 22867/93, Federspev v. Italy [1995] ECommHR (dec.). The applicants complained that they did not receive adequate social protection since the amount of their pensions was inadequate in relation to the cost of living. The Commission declared the application inadmissible.

76 77

App. No. 6833/74, Marckx v. Belgium [1979] ECtHR, para. 50.

App. No. 42184/05, Carson and others v. The United Kingdom [2008] ECtHR, para. 67.

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when in a situation of serious deprivation or want incompatible with human dignity’.78 As can be inferred from the reference to the term treatment, the ECtHR considered the issue of the minimum standard of life under Article 3 ECHR, which, using the Court’s words, ‘may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction’. Even so, this article also entails positive obligations for States to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment. In the case under discussion, the applicant complained under Article 3 ECHR that her pension was insufficient for survival. Considering that ‘the essence of the applicant’s complaint [was] that the State pension on which she depend[ed] for her subsistence and livelihood [was] not sufficient for her basic human needs’, the ECtHR examined the facts of the case to establish whether the applicant was put into a situation of concrete suffering because of the alleged low pension income. It resulted that the applicant’s pension ‘was enough for flat maintenance, food, and hygiene items, but was not enough for clothes, non-food goods, sanitary and cultural services, health and sanatorium treatment’. As for the latter, the applicant was however eligible for free medical treatment. Therefore, the ECtHR concluded that the complaint was manifestly ill-founded, since there was no indication ‘that the level of pension and social benefits available to the applicant [had] been insufficient to protect her from damage to her physical or mental health or from a situation of degradation incompatible with human dignity’. An alleged violation of the principle of respect for human dignity because of restrictions imposed on property rights was recently invoked in the Othman case before the EGC. The applicant found himself in a factual and legal situation in every way comparable to that of the appellants in the case giving rise to Kadi on appeal. In particular, Mr. Othman alleged that the provision allowing freezing measures in order to be provided with funds and economic resources necessary for subsistence and other basic needs was ‘extremely narrowly drawn and interfer[red] extremely seriously with those persons’ dignity’.79 In other words, the provision in question would have made ‘it impossible for the applicant to have the means of enjoying the normal aspects of civilised existence’.80 However, this new argument was not considered by the Court, which found a violation of the right of property due to the fact that, as in the Kadi case, the applicant did not enjoy the required procedural guarantees.81 The first conclusion that can be drawn from the foregoing is that the concern for the protection of dignity is, prima facie, invoked by courts to justify restrictions to property rights rather than to maintain property right claims. This is 78

App. No. 45603/05, Budina v. Russia [2009] ECtHR (dec.).

79

Case T-318/01, Omar Mohammed Othman v. Council of the European Union and Commission of the European Communities [2009] ECR II-1627, para. 63.

80 81

 Ibidem, para. 64.

 Ibidem, para. 91-93.

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also shown by case C-377/98 in which the ECJ clearly took a position against the commodification of the human body.82 One of the applicant’s arguments for the annulment of Directive 98/44/EC was that ‘the patentability of isolated parts of the human body provided for by Article 5(2) of the Directive reduce[d] living human matter to a means to an end, undermining human dignity’.83 The Court found that ‘as regards living matter of human origin, the Directive frame[d] the law on patents in a manner sufficiently rigorous to ensure that the human body effectively remain[ed] unavailable and inalienable and that human dignity [was] thus safeguarded’.84 Like dignity, the value of solidarity was invoked by the courts to highlight the social obligations of property. For instance, in the Schiff hart case85 the plaintiffs alleged that the obligation on vessel owners to pay contributions to a scrapping fund infringed their rights of property; the ECJ rejected the allegation considering that the system of contributions to scrapping funds constituted a solidarity measure that was appropriate to cope with the crisis of the inland waterways sector without impairing the substance of the right of property. The Italian Court of Cassation affirmed that the actions of private owners must comply with the constitutional duty of solidarity. Accordingly, it stated that the conflicting interests of the owner of a tenement and of the holder of a right of way must be reconciled in the light of the principle of solidarity enshrined in Article 2 Cost. This particular case concerned the exercise of the owner’s right under Article 841 c.c. to fence his property even though the defendant had a right of way. According to the Court of Appeal, the owner who installed a gate should also arrange for the installation of an entry phone and remote-controlled opening. The Court of Cassation upheld the findings of the Court of Appeal by stressing that the conflict between the interests of the owner and those of the holder of the servitude must be resolved by considering the constitutional duty of solidarity, which requires them to act in a manner compatible with the interests and rights of third parties.86 Finally, the French Constitutional Council interpreted the right of property in conformity with the social nature of the French Republic as reaffirmed in Article 2 of the Constitution of 1958, although it seemed to interpret the result of the referendum of 1946 as an explicit rejection of the social concept of the 82

The debate on the issue of whether human organs can be object of property rights is not purely academic. Faced with a shortage of organs, arguments for allowing a free market in organs have been presented in recent years, especially in the USA.

83

Case C-377/98, Kingdom of the Netherlands v. European Parliament and Council of the European Union [2001] ECR I-7079, para. 69.

84

 Ibidem, at para. 77. In particular, the ECJ observed that Article 5(1) of the Directive provided that ‘the human body at the various stages of its formation and development cannot constitute a patentable invention. Nor are the elements of the human body patentable in themselves’ (para. 71-72).

85

Joined Cases C-248/95 and C-249/95, SAM Schiffahrt GmbH and Heinz Stapf v. Bundesrepublik Deutschland [1997] ECR I-4475.

86

Court of Cassation, Civil Section II, 13 April 2001, judgment No. 5564, (2002) Giustizia civile I, 3229..

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right property written in the Constitution of the same year.87 Accordingly, measures that aim to implement constitutional social principles may legitimately interfere with property rights. In particular, the Constitutional Council takes into account the social principles enshrined in the Preamble to the Constitution of 1946. It holds, for instance, that measures adopted in compliance with paragraph 11 of that text may restrict the exercise of property rights to protect health. Therefore, reviewing legislation that established an absolute ban on tobacco advertising, the Constitutional Council emphasized that the evolution of the concept of property is marked by growing restrictions on its exercise to pursue the general interest88 and concluded that the legislation in question was constitutional because it restricted the exercise of the right to property, but did not affect its very existence.

Conclusion The rule of law principle requires the law to be clear and predictable. The law must also be applied in an impartial and non-arbitrary manner to allow individuals to know in advance its content, and to plan their actions with reasonable confidence in the legal consequences of their decisions. It therefore entails, first of all, respect for the procedural rights and the obligation of public authorities to act in an appropriate and thoroughly coherent way. It follows that interferences with property rights are allowed only as far as procedural fairness and legal certainty are guaranteed. As stressed by the ECJ, judicial review is ‘a general principle of law which underlies the constitutional traditions common to the Member States’,89 but the rule of law is made concrete only by making judicial protection effective. This is why the French Constitutional Council attaches particular weight to the procedural guarantees assisting measures that interfere with the exercise of property rights, and in particular measures that are designed to enable judicial review of the exercise of public authority. Until recently, Italian law neglected these procedural safeguards although the reasonableness principle derived from Article 3 Cost., which is closely linked to the rule of law, currently requires the legislature to act with justice and fairness.90 The concern that the rights granted by the law shall be enjoyed under conditions of equality is common to all legal systems considered in this study. Thus, by establishing an economic system based on market competition, EU law requires that market participants enjoy equal rights. Accordingly, the ECJ found 87

Constitutional Council 16 January 1982, decision No. 81-132 DC, especially para. 14-15.

88

Constitutional Council, 8 January 1991, decision No. 90-283 DC, para. 8, Rec. 11.

89

ECJ Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.

90

G. Scaccia, Gli strumenti della ragionevolezza nel giudizio costituzionale (Milano: Giuffrè, 2000), especially at p. 190.

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a violation of the principle of equality when legislation established differences in the protection afforded to intellectual property rights. The principle of equality plays a major role in the jurisprudence of the ECtHR, especially in cases concerning public law claims based on social policy. The fact that welfare payments and pensions are possessions within Article P1-1 is sufficient to trigger the application of Article 14 ECHR. It follows that the States’ normative power to decide who should benefit from such entitlements is not unlimited, but must be reconciled with Article 14, which bans discriminatory treatment in the enjoyment of Convention rights. As pointed out by the ECtHR, Article P1-1 ‘places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention’.91

In other words, different treatment in awarding social benefits or advantages shall be reasonably and objectively justified. However, the States enjoy a certain discretion in assessing whether, and to what extent, differences in otherwise similar situations justify different treatment. In particular, the ECtHR recognises to the States a very wide margin of appreciation in matters of macroeconomic policy.92 Within domestic case law, the principle of equality before the law prohibits restrictions that severely impair the exercise of property rights without providing any compensation, and requires substantial compensation for expropriation. Accordingly, interferences with property rights are allowed if the economic status quo is preserved by means of monetary compensation. It follows that the balance between public and private interests should result in a pecuniary compromise between public and private interests. Finally, the values of dignity and solidarity justify restrictions to property rights to foster social progress. The Italian Constitutional Court recalled the nature of a person as a social animal to emphasize the principle of solidarity enshrined in Article 2 Cost.,93 which requires that rights should be exercised in a responsible and neighbourly way. That means, for instance, that an owner’s interests may be sacrificed to meet the housing needs of third parties. 91

App. No. 65731/01 and 65900/01, Stec and others v. The United Kingdom [2006] ECtHR [G.C.], para. 53.

92 93

 Carson, supra footnote 77, para. 81.

Constitutional Court, 28 February 1992, judgment No. 75, (1992) Quaderni regionali 333. The case concerned the allocation of legislative competence between the State and Regions in the matter of voluntary work. The Constitutional Court affirmed that voluntary work, as general pattern of action based on fundamental Constitutional values such as individual freedom and social solidarity, must be regulated uniformly throughout the country.

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The importance of enjoying a house in order to live in dignity has also been stressed by the ECtHR, although the principle of dignity has not been considered per se sufficient to maintain a claim for the right to a house under the Convention. More generally, the Strasbourg Court made clear that ‘the Convention does not guarantee, as such, the right to a certain living standard’.94 This pronouncement rules out the possibility of referring to dignity as the foundation of the States’ positive obligation under Article P1-1 to provide all individuals with the resources that are necessary to live in dignity.

94

App. No. 68029/01, Kutepov and Anikeyenko v. Russia [2005] ECtHR, para. 62.

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The Incidence of Property as a Fundamental Right

chapter 7



the incidence of property as a fundamental right

1 The Different Institutional Role of the two European Courts

Fundamental freedoms and rights have for a long time represented a political rather than a legal standard against which the actions of the legislature could be judged.1 It has been remarked that their positivization and justiciability have, on one hand, increased their utility but, on the other, compromised their moral status, given the lack of objective criteria to make value choices that is inherent in human rights jurisprudence.2 Even so, it is undeniable that contemporary European human rights law is a new source of law that has a significant incidence on both the public and private laws of the European States. The ECtHR and the ECJ play a fundamental role in the development and implementation of European human rights law. A better understanding of the dynamics underpinning the Strasbourg and Luxembourg Courts’ different approaches to such bodies of law relates to one important difference between the EU Courts and the ECtHR. The former operate within the framework of an ongoing legislative activity of the EU institutions which binds the Member States and the EU itself. The ECtHR, on the contrary, is a part of a system without a legislator and is called upon to decide whether national authorities complied with the duty to respect and the obligation to protect Convention rights, or not. The ECJ and the EGC on one hand and the ECtHR on the other, thus play very different roles in their respective systems. The ECtHR is at the centre of the ECHR system, and judicial review before the ECtHR is a mean of enforcing individual rights, whereas the ECJ and EGC are primarily entrusted with the task of ensuring the effective and uniform application of EU legislation. Accordingly, the ECtHR has elaborated a structure of judicial reasoning and doctrines that give room to moral and social considerations too. The EU courts’ decisionmaking process on the contrary leaves little room for taking into consideration the specific facts and interests involved in a case. This means that the decisions delivered by the latter are based more on considerations of political balance than on the proportionality review of the contested measures in the light of the facts of the case. It is therefore hardly surprising that EU Courts tend to defend EU institutions when their policy-making and discretionary decision-making powers are questioned, especially if economic policies are involved.3 As a matter of fact, until now, the only case in which the ECJ found a violation of the right of 1

See M.R. Madsen, ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’ (2007) 32(1) Law & Social Inquiry 137-159 at 145.

2 3

T. Campbell, ‘Human Rights: a Culture of Controversy’ (1999) 26 Journal of Law and Society 6-26.

B. De Witte, ‘Balancing of Economic Law and Human Rights by the European Court of Justice’, in P-M Dupuy, F. Francioni, and E.U. Petersmann (eds.), Human Rights in International Investment Law and Arbitration (New York: Oxford University Press, 2009), pp. 201-202; De Witte notes that in general terms, ‘human rights have not often been used by the ECJ in order to declare EU economic legislation to

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property was when a regulation, which was then annulled, was adopted to give effect to a UN resolution that left no discretion to EU institutions. 4 On the contrary, the ECtHR exercises its judicial review power in a more intrusive manner, but strives nonetheless to avoid interfering with the economic policy functions of national legislatures by recognising the States a wide margin of appreciation where policy choices concerning the allocation of resources are at stake. Actually, for quite a long time the ECtHR has refrained from finding a breach of the fair balance principle on the basis of the third rule of Article P1-1. Moreover, it has made limited use of the pilot judgments procedure, which enables it to act as a subsidiary socio-political lawmaker seeking to solve systemic legal defects. The ECtHR’s judicial review of domestic acts interfering with property rights is thus generally characterised by a certain degree of deference toward the determinations of national decision-makers, especially if legislation implementing social and economic policies is at issue. Within these limits, however, the ECtHR is developing substantive rule of law principles in its case law under Article P1-1 by reference to the values of certainty and fairness. In general terms, certainty demands that the legislative enactments and administrative regulations, as well as judicial decisions, must meet qualitative requirements; fairness, on the other hand, requires that they follow fair procedures. In light of recent developments in EU law, and in particular after the entry into force of the Lisbon Treaty, one may query whether the ECJ will soon perform a broader role in the field of human rights protection. So far, Advocate General Eleonor Sharpston has argued that to determine the scope of EU law for the purpose of the applicability of the Charter one should look at the competence of the EU in a certain area, whether or not that competence had actually been exercised.5 Acknowledging that the ECJ ‘is not, as such, a ‘human rights court’’,6 Sharpston holds that ‘provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised’.7 This approach highlights how the fundamental rights obligations of the EU can take a new dimension. Aware of the federalising effect of this proposition, Sharpston invited the Court to act with circumspection, because the drift towards federalism ‘requires both an evolution in the case-law and an unequivocal political statement from the constituent powers of the EU (its Member States), pointing at a new role for fundamental rights in the EU’.8 be invalidated’. According to the author, ‘human rights are thus embedded within economic regulation rather than being an external standard for that regulation’. 4

Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II-3649.

5

For a discussion of the present interpretation of Art. 51(1) of the Charter see above Chapter 1, § 3.1 and also § 4.2.

6

Opinion of Advocate General Sharpston on September 30, 2010 in Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), para 155.

7

 Ibidem, para. 163.

8

 Ibidem, para. 173.

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2 The Different Nature of Claims brought before the ECtHR by Italian and French Applicants

Referring to ECtHR’s statistics, cases against Italy far exceed those against France. Cases concerning Italy related to a variety of issues, ranging from endemic problems of urban planning law9 to relations between landlords and tenants,10 and from constructive expropriation11 to bankruptcy law12 and to tax law.13 Cases against France included violations of agricultural land law and tax law14 that centred on the amount of compensation for the expropriation of a plot of farmland,15 procedures concerning the reimbursement of sums unduly paid as VAT,16 as well questions connected to family law17 and tort law.18 9

See, for instance, App. No. 37710/97, Elia S.r.l. v. Italy [2001] ECtHR, concerning a land use plan imposing a prohibition on construction over the applicant’s land.

10

See, for instance, the case law inaugurated in App. No. 19133/91, Scollo v. Italy [1995] ECtHR, concerning the long delay the landlord had to wait for obtaining repossession of his flat under Italian tenancy law. The ECtHR has delivered more than 100 judgments on this issue.

11

See above Chapter 5, § 5.

12

See, for instance, App. No. 32190/96 Luordo v. Italy, [2003] ECtHR; App. No. 56298/00 Bottaro v. Italy [2003] ECtHR. The ECtHR considered that, following the judgments in which they had been declared bankrupt, the applicants had been deprived of the possibility of administering and disposing of their possessions, which were under the control of the trustees in bankruptcy. The interference in question was legitimate because it had been intended to ensure payment of their creditors. However, the ECtHR held that there was a risk that such a system might impose an excessive burden on the applicants, by preventing them of the possibility of disposing of their possessions, particularly in view of the length of proceedings, which had lasted 14 years and 8 months in the Luordo case, and 12 years and 6 months in the Bottaro case. The Court concluded that the restriction on the applicants’ right to the peaceful enjoyment of their possessions had not been justified throughout the proceedings. Therefore Italy was condemned in both cases for the violation of Article P1-1.

13

App. No. 38746/97 Buffalo S.r.l. in liquidation v. Italy [2003] ECtHR. The Court, recognizing a tax credit as a possession within the meaning of Article P1-1, then held that the delay the reimbursement of overpaid tax was contrary to the Convention.

14

See B. Favreau, ‘La spécificité du droit de propriété à travers les Etats’, in IDHAE (ed.), La protection du droit de propriété par la Cour européenne des droits de l’homme (Brussels: Bruylant, 2005), pp. 42 ff.

15

See, for instance, App. No. 46044/99, Lallement v. France [2002] ECtHR; App. No. 40975/07, Dervaux v. France [2010] ECtHR.

16

App. No. 36677/97, S.A. Dangeville v. France [2002] ECtHR; App. No. 49217/99 and 49218/99, S.A. Cabinet Diot and SA Gras Savoye v. France [2003] ECtHR; and App. No. 70160/01, Aon Conseil et Courtage S.A. and Another v. France [2007] ECtHR.

17

See, for instance, App. No. 34406/97, Mazurek v. France [2000] ECtHR; App. No. 68864/01, Merger and Cros v. France [2004] ECtHR; both concerned the discriminatory infringement of the right of property of a child born out of an adulterous relationship, whose share in the estate had been reduced in accordance with French inheritance law.

18

See, for instance, App. No. 1513/03, Draon v. France [2005] ECtHR [G.C.]; App. No. 11810/03 Maurice v. France [2005] ECtHR [G.C.], both of which concerned the enactment of a law denying compensation

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There are very few Italian or French judges who have given separate opinions in the whole case law on Art. P1-1. This shows, in my opinion, that judges sitting at the ECtHR are ready to leave aside national views of the law to advance an effective interpretation of Article P1-1. Italian judges, for instance, never filed a single dissenting opinion in which they opposed the recognition of claims as property, even though such a notion is alien to Italian law. More generally, with the sole exception of Costa’s opinion in the Aon case,19 Italian and French judges’ separate opinions do not concern the definition of property (i.e., the range of interests that shall be protected under Article P1-1), but challenge instead the balancing of interests made by the ECtHR. Generally speaking, national legal traditions are the starting point of the concept of property developed by the ECtHR, but they are not determinative of the decision of the Court, which is clearly bound to give effect to the Convention. In particular, the Court avoids resorting to the European consensus doctrine, which requires the ECtHR to identify commonalities between the laws of the Contracting States as the basis of the interpretation of Convention provisions. On the other hand, as has been said, the drafting of Article P1-1 proved to be highly controversial because of the difficulty in reaching an agreement on the very idea of what the right of property was to be under the Convention.20



3 The Incidence of European Human Rights Law on National Law

Beside the obligation to respect human rights, which forbids State actions hindering the realization of ECHR rights, the ECtHR developed the obligation of the States to protect those rights, which required the States to take measures to prevent third parties from interfering with the enjoyment of those protected rights. It follows, in particular, that, as far as Convention rights are involved, domestic authorities shall apply standards of judicial review that are in conformity with ECHR law. Thus, as illustrated in Chapter 5, to comply for special burdens arising from severe congenital disabilities which, due to medical errors, were not discovered during prenatal medical examinations. 19

 Aon, supra footnote 16. According to French judge Jean-Paul Costa, the claim brought before domestic court in 1993 for reimbursement of sums it had been overcharged as VAT in 1978 could not be regarded as falling within the material scope of Article P1-1 because of the ECtHR’s principle according to which ‘the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot even constitute a ‘possession’ within the meaning of Article 1 of Protocol No. 1’.

20

As observed by the Belgian representative, the only undisputed aspect was its non-absolute nature. See Council of Europe, Collected Editions of the “Travaux Préparatoires” of the European Convention on Human Rights, 8 vols. (The Hague: Martinus Nijhoff, 1975) vol. II, p. 63. As illustrated above, the ECtHR then found a general principle, common to the legal systems of the Contracting States, to pay compensation in case of expropriation.

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with the Convention, States’ interferences with property rights under Article P1-1 shall be prescribed by law, be intended to pursue a legitimate aim, and be respectful of the fair balance between the general interest of the community and the interests of the individual. To assess the influence of European human rights law on national law, the question to analyse is, therefore, whether the courts are moving towards a common understanding of the rule of law under the guidance of the ECtHR. Two observations highlight the importance of this question. First, the task of the ECtHR is to establish common standards for domestic legislation, and not to set common property rules. Second, with regard to the Italian experience, violations of Article P1-1 are mostly related to non-compliance with requirements deriving from the rule of law principle in terms of a lack of legal certainty and procedural guarantees. This means that the large number of violations of Article P1-1 found against Italy is mostly due to a different understanding of what the principle of the rule of law requires under the two systems, rather than to a national conception of property that is incompatible with that resulting from the interpretation of the Convention.



3.1 The Incidence of the Requirement of Lawfulness

It is beyond doubt that the rule of law is one of the fundamental values underlying all legal systems considered in this study. The rule of law found its first expression in the common requirement of lawfulness, which means that any measure interfering with individual rights must have some basis in domestic law. However, the qualitative requirement of law developed by the ECtHR, which is shared by the EU Courts, departs to an extent from the traditional understanding of the principle of lawfulness under many national laws. Moreover, by interpreting the term law in its substantive rather than formal sense, the ECtHR applies the qualitative requirement in question to judicial precedents and other forms of unwritten law. Under this approach, common law and civil law countries are subject to the same checks in terms of quality of their laws. This represents a major step forward in the development of a European principle of legality. Following the ECtHR approach to the lawfulness requirement, for instance, the French Constitutional Council developed the constitutional objective of the accessibility and intelligibility of the law in the late 1990s. This jurisprudence obliged the legislature to adopt provisions that are sufficiently precise and use unambiguous wording to prevent the risk of arbitrariness. Allowing itself to declare that a law that does not comply with domestic requirements for legality meets the Convention’s lawfulness requirement, the ECtHR clarified that it is the ultimate judge of the legality of States’ interferences with Convention rights. This approach, is however, in itself a source of

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uncertainty, and quite paradoxically can thus be considered inconsistent with the aim of securing predictability of the law that the ECtHR proclaims.



3.2 The Incidence of the Legitimate Aim Requirement

Restrictions to property rights under Article P1-1 are tested on the requirement of public or general interest. More precisely, deprivations of property must be justified in the public interest while restrictions must be grounded in the general interest. Neither the drafters of the Convention nor the ECtHR explained the difference between the two terms, which are thus considered equivalent in meaning. Consistent with the contextual approach it adopts, the ECtHR understands the legitimate aim requirement in objective terms and requires the defendant State to prove the existence of an actual general interest supporting the contested measure at the time of the alleged violation of the Convention. As far as Article P1-1 is concerned, the ECtHR generally relies on the reasonableness standard to test the legitimate aims of legislative interferences with Article P1-1, and shows a high degree of deference to the State’s right to regulate private property. On this point, ECHR law does not introduce any new requirement for a State’s interferences with property rights, nor calls for a closer scrutiny of the general interest grounds on which such interferences are based.



3.3 The Incidence of the Fair Balance Principle

Assuming that under the Convention system human rights are not absolute, because they do not always trump conflicting public interests, the ECtHR transformed the fair balance principle into a substantive standard for judging the conduct of the States under the Convention. The ECtHR failed, however, to develop a coherent and defensible jurisprudence on fair balance. It is not possible, on the basis of its case law, to draw precise guidelines to assess whether national authorities succeed in striking a fair balance between private interests and the general interest. The ECtHR does not usually enumerate all the different factors that it considers in deciding whether an interference with property rights meets the fair balance requirement. However, the choice of which facts are considered through the fair balance test, and how much weight is attached to each of them, is of the utmost importance according to its case law. The result of the balancing test thus varies depending on how much of the context surrounding the interference is taken into consideration by the Court, and on the perspective which is adopted to evaluate it. Applied in this way, the fair balance principle is a source of uncertainty. A first step forward in the development of a more transparent and consistent doctrine on fair balance could be a clear statement by the ECtHR identifying the core purpose of property rights under Article P1-1. This would allow domestic courts to know in advance which property interests to prioritize. In my opinion, for reasons mostly related to the need of not identifying the rights protected 240

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under Article P1-1 with a specific model of property rights, this solution would be welcome only insofar as the ECtHR could reach a European legal consensus on the matter. At the moment, the fair balance requirement, as interpreted by the ECtHR, requires national courts to adopt a more intensive review than that required under the national law, including a closer scrutiny of the actual impact of the State’s interferences in the individual situation.



3.4 Some Critical Remarks

In my opinion, one should favourably appreciate the ECtHR’s choice to focus on procedural aspects and to impose an obligation on the States to provide certainty and respect for fairness in the relationships of individuals with each other and with public authorities in matters concerning property entitlements. This approach leaves the States a broad discretion in implementing property rights regulations, and, on the other hand, gives the ECtHR the possibility to sanction violations of Article P1-1 without interfering with the States’ economic and political policy choices. Nevertheless, the jurisprudence of the ECtHR is, in other respects, unsatisfactory. First of all, as was already noted, the jurisprudence of the ECtHR leaves too much room for uncertainty, falling short as it does from developing a coherent and defensible doctrine of fair balance. For instance, as illustrated above, the payment of compensation reasonably related to the market value of property no longer provides a conclusive standard of fairness in all circumstances. In particular it is unclear whether this is the standard that must govern those cases where Art. P1-1 is applied to protect interests closely related to the personhood of the owner by invoking the fair balance test with regard to the idiosyncratic value that the expropriated property had for the applicant. In defence of the ECtHR, however, I would argue that, insofar as property rights are seen as the outcome of the process of the reconciliation of individual and collective interests, to impose overly rigid principles on how these interests should be balanced and reconciled would transform the ECtHR into a sort of super constitutional court. My second criticism concerns some aspects of the jurisprudence of the ECtHR in which the State’s good governance obligations are at stake. Bringing the States’ good governance obligations under P1-1 by means of the fair balance principle could lead the ECtHR to challenge the States’ exemption from strict liability for their actions. The case law shows that, once a national authority fails to act in good time and in an appropriate manner, the State can be held responsible for damages for which it would usually not be held liable. For example, in some cases in which the applicants complained of delays in the payment of a social benefit or compensation, the ECtHR found a breach of the proportionality principle due to the substantial loss caused by a high inflation rate21 that negatively affected the value of the money granted to the applicants, whereas, 21

App. No. 67099/01, Solodyuk v. Russia [2005] ECtHR, sanctioning delays in the payment of an old-age pension; App. No. 19263/92, Akkus v. Turkey [1997] ECtHR, on the delayed payment of compensation for land expropriation.

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as mentioned above, the States would usually not be held liable for an economic loss due to inflation.22 Finally, the ECtHR should be careful to avoid extending its controls to the merits of the decision rendered on the case before the national judge. The risk associated with this expansion is to introduce a further appeals court in which to challenge national court decisions. As explained above, the ECtHR’s approach to the rule of law requires more from national authorities than the mere respect of legitimacy and legality as understood in their respective legal orders. It follows that the ECtHR’s review of whether a State complied with the obligation under discussion goes beyond the mere control of the legitimacy and legality of the national courts’ actions to assessing the appropriateness of their decisions. In my opinion, the expansion of the ECtHR jurisdiction in the direction of more decisions rendered on the merits of the case, e.g. to correct the interpretation of the national law, rather than on the respect of the principle of legality, induces litigants to consider the court as a sort of fourth instance judicial organ.23



4 Towards a Common Understanding of the Right of Property?

To answer the question of whether national courts are moving towards a common understanding of the right of property as fundamental right, I will examine the idea of property set out in their case laws from both ideological and theoretical perspectives.



4.1 Some Reflections on the Notion of the Right of Property from the Ideological Perspective

The historical analysis of the origins and evolution of property rights described in this study show that liberal and social ideologies alternated and interacted in defining the scope of protection of property rights. This is particularly evident with regard to Article P1-1,24 resulting from a compromise, imposed by the need to accommodate liberalism and social democracy views on property, that still affects the case law of the ECtHR, sixty years after the entry into force of the Convention and after more than 2500 judgments finding a violation of Article P1-1.25 However, looking for a possible point of convergence between the different systems, we should be mindful of the social obligation 22 23

See above, Chapter 2 § 1.4.1.2.

The ECtHR recently reasserted that it is not a fourth instance court in the Interlaken Declaration of February 19, 2010.

24 25

See, in particular, Chapter 2, § 1, where I discuss the drafting of Article P1-1.

As explained by T. Allen, ‘Liberalism, Social Democracy and the Value of Property under the European Convention on Human Rights’ (2010) 59(4) International and Comparative Law Quarterly 1055-1078,

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norm of property supported by the French scholar Léon Duguit, embraced by the Italian Constitutional Assembly, and invoked by the Court of Justice of the European Union.26 Within the ECtHR’s case law, the only express reference to the social function of property is to be found in the recent Potomska case, where the Court stated that ‘Property, including privately owned property, has also a social function which, given the appropriate circumstances, must be put into the equation to determine whether the “fair balance” has been struck between the demands of the general interest of the community and the individual’s fundamental rights. Consideration must be given in particular to whether the applicant, on acquiring the property, knew or should have reasonably known about the restrictions on the property or about possible future restrictions [...], the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase [...], the extent to which the restriction prevented use of the property [...], and the possibility of challenging the necessity of the restriction [...]’.27

In essence, the social obligation principle implies that ‘property rights should have their share of social responsibility’.28 This doctrine finds one of its most accomplished expressions under German constitutional law. Article 14(2) of the German Basic Law (Grundgesetz) states that ‘Ownership entails obligations. Its use should also serve the public interest’. some judgements of the ECtHR incline towards the liberal version of the right to property, even though they still contain strong elements of democratic thinking. 26

It should, however, be mentioned that the amendment presented by Italian representatives to include the reference to property’s social function in the text of Article 17 of the Charter of Fundamental Rights did not pass. See, R. Bifulco, M. Cartabia, A. Celotto (eds.), L’Europa dei diritti: commento alla Carta dei diritti fondamentali dell’Unione Europea (Bologna: Il Mulino, 2001).

27

App. No. 33949/05, Potomska and Potomski v. Poland [2011] ECtHR, para. 67. The case concerned land that was formerly a Jewish cemetery, that the applicants were under an obligation not to develop, to preserve the historical monument and protect it from damage. The ECtHR considered that the most fitting measure would have been expropriation of the land with payment of compensation, or the offer of a suitable alternative property. In the assessment of the proportionality of the measures complained of, the ECtHR attached considerable weight to the lack of any means of compelling the State authorities to expropriate their property, and to the fact that domestic law did not provide a procedure granting the applicants the suitability of a property offered in lieu by the authorities. The Court further observed that the state of uncertainty in which the couple had found themselves, neither being able to develop their land or have it expropriated, had lasted a considerable amount of time. It therefore found that the fair balance between the demands of the general interest of the community and the requirements of the protection of property had been upset in violation of Article P1-1.

28

U. Mattei, Basic Principles of Property Law: A Comparative Legal and Economic Introduction (Westport and London: Greenwood, 2000), p. 31.

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Even though this article provides little or no guidance regarding the substantive meaning of the social-obligation clause, it strongly influences the way in which courts reason about restrictions that can legitimately be imposed on property rights.29 Likewise, the Italian Constitution imposes duties on the legislature to promote public weal and to protect individuals’ living necessities by means of the social function clause enshrined in article 42. It also provides explicitly that the legislature shall intervene, for instance, by ‘ensuring the rational use of land and equitable social relationships’ (Art. 44) or by promoting ‘house and farm ownership and direct and indirect shareholding in the main national enterprises’ (Art. 47). Taking into account the concrete application of the social function clause, we can say that it has been used by the Italian legislature to acknowledge the normative value of all interests and values protected by the Constitution that are potentially conflicting with the unrestricted and exclusive use of property by individuals.30 Nonetheless, the aspect related to the social view of property that deserves further attention, in my opinion, concerns the value placed on property by the courts for compensation purposes in cases of expropriation. Indeed, social obligation considerations may still support a reduction of the value of property that is recognized on expropriation. A clear example of this approach is provided by judgment No. 348/2007 of the Italian Constitutional Court, which brings Italian law in line with the ECtHR jurisprudence on compensation for expropriation, but also holds that the rule according to which compensation for expropriation should correspond to the market value of the expropriated property does not constitute a ‘normative tendency within the legal order’ because ‘it is not essential for the social role which property is recognised as having in the Constitution, according to a consistent line of constitutional case law’.31 Since its early case law, the ECtHR has acknowledged this principle by affirming that legitimate objectives of public interest may call for less than reimbursement of the full market value of the expropriated property.32 In prac29

G. Alexander, The Global Debate over Constitutional Property. Lessons for American Takings Jurisprudence (Chicago: The University of Chicago Press, 2006), pp. 97 ff. The author explains that the social-obligation clause ‘is to be understood to impose a duty on the legislature and administrative agencies actively to advance community well-being. Acting under this duty, the legislature imposes negative limitations on what private property owners may do with their property. At the same time, the individual owner is understood as being under an immanent positive duty to use her property so that it serves the public weal’ (pp. 132-133)

30

See, above Chapter 5 § 6, and also V. Scalisi, ‘Proprietà e governo democratico dell’economia’ (1985) Rivista diritto civile 221-239 at 236.

31

Constitutional Court, 24 October 2007, No. 348.

32

For the first statement of this principle, see App. No. 8793/79, James and others v. The United Kingdom [1986] ECtHR, para. 54. The case concerned the Leasehold Reform Act of 1967, which conferred on

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tice, the Court has made very limited reference to this principle, and in most cases it has found that there had been a violation of Art. P1-1 on the grounds that compensation bore no reasonable relation to the value of the expropriated land.33 According to the ECtHR, ‘there is a direct link between the importance or compelling nature of the public interest pursued and the compensation which should be provided in order for the guarantees of Article 1 of Protocol No. 1 to be complied with. A sliding scale should be applied in this respect, balancing the scope and degree of importance of the public interest against the nature and amount of compensation provided to the persons concerned.’34

The ECtHR requires that compensation should be calculated by taking into account not only the market value of the expropriated property, but also the possible loss deriving from expropriation, such as the decrease in the value of

certain tenants the right to compulsorily purchase the freehold from the landlord on certain terms and conditions. Face to the applicants’ complaint according to which the contested legislation did not accord them the full market value of the properties enfranchised, the ECtHR referred to the respondent State’s wide margin of appreciation to declare that the English government managed to strike ‘a fair balance between the interests of the private parties concerned and thereby between the general interest of society and the landlord’s right of property’ (para 56). 33

For cases in which the ECtHR applied the principle under discussion and found that there had been no violation of Art. P1-1, see: James, supra; App. No. 9006/80, 9262, 9263, 9265, 9266, 9313 and 9405/81, Lithgow and others v. The United Kingdom [1986] ECtHR; App. No. 31423/96, Papachelas v. Greece [1999] ECtHR [G.C.]; App. No. 15339/02, 21166/02, 20058/02, 11673/02, and 15343/02, Budayeva and others v. Russia [2008]. For cases in which the ECtHR found a breach of Art. P1-1, see, for instance, App. No. 36548/97 Pincova and Pinc v. The Czech Republic, [2003] ECtHR; App. No. 36813/97, Scordino and others (No. 1) v. Italy [2006] ECtHR [G.C.]; App. No. 25774/05 Bistrović v. Croatia, [2007] ECtHR; App. No. 22186/03 Pešková v. The Czech Republic, [2009] ECtHR; App. No. 2334/03, Kozaciog˘ lu v. Turkey [2009] ECtHR [G.C.].

34

App. No. 74258/01, Urbárska obec Trenčianske Biskupice v. Slovakia, [2007] ECtHR. Local legislation gave users of the land the right to acquire ownership, while the owners were given the right to claim compensation. The ECtHR stated in general terms that ‘less than full compensation may also be necessary a fortiori where property is taken for the purposes of fundamental changes of a country’s constitutional system or in the context of a change of political and economic regime’ (para 115). Then, it accepted that, in pursuit of its economic and social policies, the Slovakian State was entitled to protect the interests of the individual gardeners using the land as allotments. The transfer of ownership complained of was therefore in the public interest. However, the Court was not persuaded that the declared public interest was sufficiently broad and compelling to justify the substantial difference between the real value of the applicant’s land and that of the land which it obtained in compensation and held that there had been a violation of Art. P1-1.

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the remaining estate,35 the impossibility of continuing a business,36 or nonpecuniary damages.37 The ECtHR’s approach to compensation, which is closer to the liberal vision of property than to the social one, is even more developed under French law, which imposes compensation of the entire direct, material, and certain loss arising from expropriation.38 Furthermore, under French law there are some cases in which an owner can claim compensation for loss caused by a regulatory measure, which does not amount to an expropriation. In these cases the claim for compensation is upheld on the basis of the principle of equality before public burdens, according to which any loss caused to private property by public works shall be compensated.39 However, as applied by the Constitutional Council, the principle of equality before public burdens does not entail a general obligation to provide compensation for regulatory measures. On the contrary, compensation for regulatory measures is granted only in exceptional circumstances. 40 Indeed, as is expressly affirmed by the Council of State, measures restricting the owner’s right to use his property do not violate the principle of equality before public burdens simply because they do not provide for compensation. 41 Notwithstanding the liberal approach to the compensation issue, there is room under French law for the duty dimension of private property42 and the correlative duty of the State to enact redistributive policies on the basis of the social state clause enshrined in Article 1 of the Constitution of 1958 as well as in the Preamble of the Constitution of 1946 that lays down the basis for the recognition of social rights. 35

 Bistrović, supra footnote 33. Expropriation proceedings, with a view to building a motorway, concerned part of the applicants’ farming land. The Court held that ‘by failing to grant indemnity for the decrease in the value of their remaining estate, the national authorities have failed to strike a fair balance between the interests involved’ (para 44).

36 37

 L allement, supra footnote 15. On this decision see above Chapter 5 § 7.

App. No. 36548/97 Pincova and Pinc v. The Czech Republic, [2003] ECtHR. The applicants complained that they had been deprived of a property they had acquired legally and in good faith without getting appropriate compensation. Assessing whether the choice of compensation terms fell within the State’s wide margin of appreciation, the Court remarked that ‘the ‘compensation’ awarded to the applicants did not take account of their personal and social situation and that they were not awarded any sum for the non-pecuniary damage they sustained as a result of being deprived of their only property’ (para 63). It then concluded that the burdens imposed to the applicants were excessive and contrary to Article P1-1.

38

See above, Chapter 4 § 1.

39

Constitutional Council, 13 December 1985, decision No. 85-198, see above Chapter 6 § 2.

40

See, H. Pauliat, Le droit de propriété dans la jurisprudence du Conseil constitutionnel et du Conseil d’Etat, (Paris: PUF, 1994), p. 83, holding that owners have a debt of solidarity toward the community.

41

See, for instance, Council of State, 17 February 2011, 34445. The Council of State dismissed the question of constitutionality raised with regard to legislation prohibiting the use of land in a way likely to endanger the conservation or creation of woodland for lack of a serious basis.

42

See above Chapter 6 § 3, where positive obligations imposed on private owners to meet social needs in the field of housing are discussed.

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Finally, the ECJ never had the occasion to rule on terms of compensation in a case of expropriation. Nevertheless, statements such as those contained in the Wachauf judgment 43 reflect a liberal conception of the right of property rather than a social one. According to this judgment, measures that have the effect of depriving the lessee, without compensation, of the fruits of his labour and of his investments in a tenanted holding, would clash with the protection of fundamental rights in the EU legal order.



4.2 Some Reflections on the Scope of the Right of Property from the Theoretical Perspective

As seen above, the national and supranational courts considered in this study are all entrusted with the protection of the right of property on the basis of provisions that set out general principles without providing a detailed definition of the content of the right itself. Therefore, these courts have to work out their own guidelines to decide what property is. Although legal theorists have sometimes proposed to do away with the notion of property because it is a concept that is bound to confound ideas, due to its shifting meanings, 44 the first lesson to bring home is that, if a text makes a reference to property, interpreters cannot avoid referring to it. Whether they are more or less successful in making use of that text to decide controversial cases is altogether a different question, of course. Leaving this general point aside, there is a parallel between French law and the ECHR system and between Italy and the EU legal order. The notion of biens or possessions is central to the evolution of the right of property within both French and ECHR law. The French Constitutional Council, to extend the guarantees enshrined in Article 17 of the Declaration of 1789 to new forms of property, has clearly stated that the evolution of the scope of the right of property is closely linked to the development of new objects of property, such as company shares. 45 On the other hand, within the ECHR system an applicant can allege a violation of Article P1-1 only insofar as the impugned measure related to his possessions within the meaning of this provision, which is, as consistently affirmed by the Court, ‘independent of the formal classifications in domes43

 Wachauf, supra, Chapter 2 § 3.1.

44

Cp. T.C. Grey, ‘The Disintegration of Property’ in J.R. Pennock and J.W. Chapman (eds.), Property: Nomos XII (New York: New York University Press, 1980), p. 69. The point advanced by Grey concerning the impossibility of assigning a precise meaning to the concept was not completely novel, of course. Legal realism basically advanced the same point for philosophical reasons. For a rejoinder from a post-realist perspective see: J. Singer, Property and Social Relations: From Title to Entitlement, in G.E. van Maanen, A.J. van der Walt, G.S. Alexander (eds.), Property Law on the Threshold of the 21 Century: Proceedings of an International Colloquium ‘Property Law on the Threshold of the 21 Century’, 28-30 August 1995, Maastricht (Antwerpen: MAKLU, 1996), pp. 69-90.

45

Constitutional Council, 16 January 1982, decision No. 81-132 DC.

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tic law’. 46 Thus, for instance, entitlements to social benefits are recognized as possessions by the ECtHR, even though they are not protected as property under Italian law. 47 This disparity is due to the fact that Italian law has adopted a rather restrictive notion of beni for the purposes of property law. Some economic interests which do not amount to beni under Italian property law may be protected for other reasons, however. The right to conduct an economic activity is a good example in this respect. Moreover, in France the protection of the right of property has been developed on the basis of the Declaration of 1789, namely through a text aiming, like the ECHR, at protecting individuals from tyranny and the abuse of State power. Thus, French courts acknowledge a link between individual liberty and private property. 48 Within ECtHR case law, such a link is self-evident in the well-known Chassagnou case, where the Court held that a law requiring landowners who strongly opposed hunting to allow third parties to hunt on their lands was contrary to Article P1-1. That law imposed a disproportionate burden that resulted from the use of the applicants’ property in a way that was totally incompatible with their beliefs. In other cases, the link between individual liberty and property is more blurred, and is established by the way in which the ECtHR carries out the fair balance test. Thus, for instance, in the Lallement case, dealing with the partial expropriation of a farm that became unprofitable due to its partition, the ECtHR considered that, as far as the farm was the applicant’s family property, he could not be reproached for not having sold the entire farm to the State’s authorities, as was permitted by law. Attaching special weight to the idiosyncratic value that the property in question had for the applicant, the ECtHR allowed personal interests to prevail over economic ones. The Lallement case stands for the proposition that the core purpose of the right of property is the protection of personal liberty. Considering that, under the ECtHR case law, the cases in which the Court adopts a purposive approach to the interpretation of Article P1-1 openly intending to protect individual liberty are limited and that the two landmarks cases concern France, we can ask whether French judges have been influential by the adoption of such an interpretation. Actually, in both cases, the French judge Jean-Paul Costa wrote a separate opinion. With regard to the Chassagnou case, he maintained, contrary to the majority, that there had been no been violation of Article P1-1, and criticised the ECtHR’s balancing of the need to organise hunt46 47

App. No. 20309/03, Gubiyev v. Russia [2011] ECtHR, para 57.

Constitutional Court, 29 June 1995, judgment No. 288, supra Chapter 4 § 2.

48

For a typical statement, see M. Verpeaux, ‘Le juge administratif, gardien du droit de propriété’ (2003) Revue française de droit administratif 1096-1103 at 1099. Emphasising the role played by the principle of individual freedom in the constitutional doctrine of property, Verpeaux describes the right to private property itself as a form of freedom. Then, Michel Verpeaux stresses that the national community does not enjoy the same freedom since the Preamble to the Constitution of 1946 provides that ‘all property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society’.

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ing in the public interest and the applicant’s proprietary interests. In particular, he emphasised that ‘While a balance has to be struck between the general interest and this limited interference with the use of property, I do not find the second pan of the scales to be any heavier than the first, unless one gives way to the temptation to make a god of the right of property, which to my mind would be wrong. We should not render any town planning, regional development, public works, consolidation of landholdings and the like impossible. One can be wholly in favour of freedom and the rule of law—as the framers of the Convention were—without necessarily making individual freedom an absolute or excluding the general interest from the rule of law—which was manifestly not the intention of those who drafted the Convention’. 49

In the Lallement case Judge Costa reaffirmed his contrariety to the sacralisation of the right of property and, even though he voted – like the majority – to sanction a breach of Article P1-1, he expressed the view that the case should not be used as a general precedent in the matter of compensation.50 We can therefore conclude that the Chassagnou and Lallement cases are not the result of national pressures to foster a liberal vision of the right of property, but reflect an understanding of judicial review within human rights jurisdictions which accords priority to values, preferences and needs that must be accommodated under the law of contemporary liberal democracies.51 Turning to the Italian Constitutional Court and EU Courts, it appears that both have relied on the notion of property’s social function as a limit of the right itself, with the result that the scope of the right of property is by and large influenced by considerations related to the general interest. Furthermore, in the Italian legal order, the constitutional basis for the protection of property rights is laid down by the articles relating to the economic Constitution; accordingly, economic considerations affect the actual understanding of the concept of property by the Italian Constitutional Court, which is more inclined to protect the monetary value of property than the relationship with the property itself. Likewise, since homo economicus has obviously been the main character on the scene of the EU legal order, a commercial logic underpins the concept of property emerging out of the EU courts’ case law. According to the Italian Constitutional Court, the substance of the right of property is prejudiced by regulations that completely destroy or significantly reduce the exchange value of the property concerned.52 Likewise, as pointed out 49

App. No. 25088/94, 28331, and 28443/95, Chassagnou and others v. France [1999] ECtHR, dissenting opinion of judge Jean-Paul Costa, para 10.

50

 L allement, supra footnote 15, concurring opinion of judge Jean-Paul Costa.

51 52

Cp. G. Calabresi, Ideals, Beliefs, Attitudes, and the Law (Syracuse, N.Y.: Syracuse University Press, 1985).

Constitutional Court, 20 January 1966, judgment No. 6. The Court ruled that law No. 1849 of 1932, which allowed public authorities to impose predial servitudes that severely affected the exercise of prop-

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by Advocate General Francesco Capotorti in the Hauer case, to exclude that a EU measure is an expropriation ‘it is sufficient that in spite of that measure the land retained an appreciable economic value’.53 Accordingly, EU Courts examining whether an interference impaired the very substance of the right of property, have consistently considered two factors: first, whether the owner could still make some use of his property and, second, whether the property concerned had been deprived of all economic value. As mentioned above, the EU’s commercial approach to the right of property goes so far as to exclude the consideration of right over goods that have no commercial value.54 Overall, the ECtHR’s evolutive approach to the notion of possessions supported by the autonomous meaning doctrine makes the scope of the right of property within the ECHR system wider than under EU or national laws. A closer look to the case law of the ECtHR shows, however, that the Strasbourg Court does not depart from the traditional conception of the right of property as an economic right and so defines the notion of possession according to economic criteria.55 Moreover, the scope of the right of property under Article P1-1 can significantly be reduced by means of the fair balance principle. For instance, in the Pine Valley case the ECtHR relied on the legitimate expectation doctrine and affirmed that the applicants’ interests inherent in a planned commercial activity were to be considered as possessions within the meaning of Article P1-1. Nevertheless, the ECtHR then neutralised the applicants’ legitimate expectations to the economic exploitation of the asset – namely an aspect of their right of property under Article P1-1 – by observing that they ‘were engaged on a commercial venture which, by its very nature, involved an element of risk’.56 As a result, although the applicants’ legitimate expectations had ‘to be regarded, for the purposes of Article 1 of Protocol No. 1 (P1-1) as a component part of the property in question’, the scope of the right of property in the case at issue turned out to be, in practice, not wider than those acknowledged by the ECJ, which excluded from the scope of property rights: ‘commercial interests, the uncertainties of which are part of the very essence of economic activity’.57 erty rights, was unconstitutional because it did not provide for compensation with regard to restrictions that amounted to a deprivation of the right to property. 53

Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, opinion of Mr. Advocate General Capotorti.

54

Joined Cases C-20 and 64/00, Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v. The Scottish Ministers [2003] ECR I-7411, discussed above.

55

This view is substantially shared by T. Allen ‘The Autonomous Meaning of ‘Possessions’ under the European Convention on Human Rights’, in E. Cook (ed.), Modern Studies in Property Law, 6 vols. (Oxford and Portland, OR: Hart Publishing, 2003), vol. II, p. 73; Allen observes that the ECtHR’s ‘attitude to ‘possessions’ does not concentrate on principles of personhood or some other primary value that might be associated with property as a human right’.

56 57

App. No. 12742/87, Pine Valley Development Ltd and others v. Ireland [1991] ECtHR, para 59.

See above Chapter 2 § 3.1.

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Thus, I would argue that the protection of property rights under Article P1-1 ECHR is generally more extensive than under French, Italian and EU law, not because of the autonomous meaning doctrine, which allows the ECtHR unfettered discretion in deciding what property is, but because the Strasbourg Court pays more attention to the individual interests that are immediately at stake in each case. In particular, the ECtHR takes into account individual non-economic interests not in order to widen the concept of possessions, but to assess whether the State’s interference with individual rights and interests complies with the fair balance requirement. Adopting a purposive and contextual approach, similar to that elaborated by the German Constitutional Court with regard to Article 14 of the German Basic Law,58 the ECtHR manages to grant an extensive protection to proprietary interests. These include, e.g., interests that do not meet national legality requirements, and therefore are not protected under the national law. For instance, in the Öneryıldız case, the ECtHR found a violation of Article P1-1 because of the destruction of the applicant’s illegal dwelling. Similarly, in the Stretch case, the ECtHR afforded protection to the applicant’s expectation of the renewal of a lease granted by a local authority even though the grant of the option was ultra vires, and of no effect within the domestic legal order. Cases like this vindicate the thesis that ‘property law is not primarily about owners and holders of rights, but about those who do not own property and whose lives are shaped and affected by the property holdings of others; those who are required to respect property and who are owned as or through property’.59 A comparison of the jurisprudence of the German Constitutional Court and that of the ECtHR shows certain differences, however. In particular, these differences include the value of dignity, which plays a major role in the constitutional discourse of German Constitutional Court60 and a lesser role with the ECtHR, as was shown in the previous Chapter. It follows that under German law ‘the core purpose of property as a basic constitutional right is not economic, but is personal and moral’.61 Within the ECHR system, Article P1-1 serves rather 58

On the purposive approach adopted by the German Constitutional Court to interpret constitutional property, see G.S. Alexander, ‘Property as a Fundamental Constitutional Right? The German Example’ (2002-03) 88 Cornell Law Review 733-778. The author illustrates how the German Constitutional Court, ‘strongly protects a particular property interest only to the extent that the interest immediately serves other, primary constitutional values – in particular, human dignity and self-governance’ (p. 739).

59

A.J. van der Walt, ‘Property and Marginality’, in G.S. Alexander and E.M. Penalver (eds.), Property and Community, (Oxford: Oxford University Press, 2009), 81-100, who goes on to say: ‘On the margins, property law is deeply concerned with absence of property; no-property; not-property’.

60

See G.S. Alexander, ‘Property as a Fundamental Constitutional Right? The German Example’, cit., p. 772. The author points out that: ‘In its relationship to property, human dignity does not mean preference satisfaction. Rather, it means the capacity and opportunity of individuals to lead lives that are self-governing and self-realizing’.

61

 Ibidem, at p. 746.

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as a guarantee for the rights of individuals over assets through respect for legal certainty and fairness in respect of property entitlements.62 However, contrary to the German Constitutional Court, the ECtHR has never clarified the core purpose of Article P1-1. This attitude of the ECtHR is to be read, in my opinion, as a willingness not to identify the rights protected under Article P1-1 with a specific model of property rights, as is required by its mission of providing individual justice while respecting national legal traditions and cultures.

62

T. Allen, ‘The Autonomous Meaning of ‘Possessions’ under the European Convention on Human Rights’, in E. Cook (ed.), Modern Studies in Property Law, cit., p. 57, describes Article P1-1 ‘as a means of ensuring a reasonable level of stability in relation to claims over resources’, although several secondary purposes influence the Court as well (cfr. T. Allen, Property and the Human Rights Act 1998 (Oxford and Portland, OR: Hart Publishing, 2005), pp. 282-283).

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277

Table of Cases

the protection of property rights in comparative perspective

Cases before the European Court of Human Rights Abdulaziz, Cabales and Balkandali v. The United Kingdom (App. No. 9214/80, 9473/81, and 9474/81) [1985] ECtHR 159 Adelfoi Io. Verri A.e. Choirotrofiki Epicheiris v. Greece (App. No. 2544/04) [2006] ECtHR 196 Agrotexim and others v. Greece (App. No. 14807/89) [1995] ECtHR 59 Air Canada v. The United Kingdom (App. No. 18465/91) [1995] ECtHR 73 Akkus v. Turkey (App. No. 19263/92) [1997] ECtHR 76; 241 Alatulkkila and others v. Finland (App. No. 33538/96) [2005] ECtHR 219 Allard v. Sweden (App. No. 35179/97) [2003] ECtHR 172-173 Amat-G Ltd and Mebaghishvili v. Georgia (App. No. 2507/03) [2005] ECtHR 167-168 Amato Gauci v. Malta (App. No. 34462/97) [2009] ECtHR 80, 201 Andrle v. The Czech Republic (App. No. 6268/08) [2011] ECtHR 57 Anheuser-Busch Inc. v. Portugal (App. No. 73049/01) [2007] ECtHR [G.C.] 57 Anonymos Touristiki Etairia Xenodocheia Kritis v. Greece (App. No. 35332/05) [2008] ECtHR 67, 71 Antonetto v. Italy (App. No. 15918/89) [2000] ECtHR 70, 209 Aon Conseil et Courtage S.A. and Another v. France (App. No. 70160/01) [2007] ECtHR 173, 237,238 Appleby and others v. The United Kingdom (App. No. 44306/98) [2003] ECtHR 180; 189; 190;191 Aquilina v. Malta (App. No. 25642/94) [1999] ECtHR 81 Ashingdane v. The United Kingdom (App. No. 8225/78) [1985] ECtHR 25 Athanasiou and others v. Greece (App. No. 2531/02) [2006] ECtHR 67 Azinas v. Cyprus (App. No. 56679/00) [2002] ECtHR 181 Balan v. Moldova (App. No. 19247/03) [2008] ECtHR 58 Barthold v. Germany (App. No. 8734/79) [1985] ECtHR 165 Belvedere Alberghiera S.r.l. v. Italy (App. No. 31524/96) [2000] ECtHR 78, 168, 214 Belvedere Alberghiera S.r.l. v. Italy (App. No. 31524/96) [2003] ECtHR 78 Beyeler v. Italy (App. No. 33202/96) [2000] ECtHR [G.C.] 56, 216 Bijelić v. Montenegro and Serbia (App. No. 11890/05) [2009] ECtHR 70 Bistrović v. Croatia (App. No. 25774/05) [2007] ECtHR 245-246 Borzhonov v. Russia (App. No. 18274/04) [2009] ECtHR 85 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (App. No. 45036/98) [2005] ECtHR [G.C.] 35, 44, 46, 49 Bottaro v. Italy (App. No. 56298/00) [2003] ECtHR 237 Boyajyan v. Armenia (App. No. 38003/04) [2011] ECtHR 56 Broniowski v. Poland (App. No. 31443/96) [2004] ECtHR [G.C.] 62, 207 Brumarescu v. Romania (App. No. 28342/95) [2001] ECtHR [G.C.] 82 Buckley v. The United Kingdom (App. No. 20348/92) [1996] ECtHR 200, 225 Budayeva and others v. Russia (App. No. 15339/02, 21166/02, 20058/02, 11673/02, and 15343/02) [2008] ECtHR 64, 65, 245 280

table of cases

Budina v. Russia (App. No. 45603/05) [2009] ECtHR (dec.) 227 Buffalo S.r.l. in liquidation v. Italy (App. No. 38746/97) [2003] ECtHR 237 Burden and Burden v. The United Kingdom (App. No. 13378/85) [2006] ECtHR 160; 181 Burden v. The United Kingdom (App. No. 13378/85) [2008] ECtHR [G.C.] 160; 181; 182 Burghartz v. Switzerland (App. No. 16213/90) [1994] ECtHR 194 Carbonara and Ventura v. Italy (App. No. 24638/94) [2000] ECtHR 78; 168 Carbonara and Ventura v. Italy (App. No. 24638/94) [2003] ECtHR 78 Carson and others v. The United Kingdom (App. No. 42184/05) [2008] ECtHR 226; 230 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (App. No. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, and 2126/64) [1968] ECtHR 179 Chapman v. The United Kingdom (App. No. 27238/95) [2001] ECtHR [G.C.] 117; 225 Chassagnou and others v. France (App. No. 25088/94, 28331, and 28443/95) [1999] ECtHR 80; 88; 159; 181; 187; 249? Chauvy and others v. France (App. No. 64915/01) [2004] ECtHR 67 Christine Goodwin v. The United Kingdom (App. No. 28957/95) [2002] ECtHR [G.C.] 156; 194 Codona v. The United Kingdom (App. No. 485/05) [2006] ECtHR (dec.) 225 Connors v. The United Kingdom (App. No. 66746/01) [2004] ECtHR 86 Ćosić v. Croatia (App. No. 28261/06) [2009] ECtHR 199 Crisanin and others v. Serbia (App. No. 35835/05, 43548/05, 43569/05, 36986/06) [2009] ECtHR 30 Cyprus v. Turkey (App. No. 25781/94) [2001] ECtHR 61 De Wilde, Ooms and Versyp v. Belgium (App. No. 2832/66, 2835/66, and 2899/66) [1971] ECtHR 165 Demades v. Turkey (App. No. 16219/90) [2003] ECtHR 61 Demir and Baykara v. Turkey (App. No. 34503/97) [2008] ECtHR [G.C.] 27 Depalle v. France (App. No. 34044/02) [2010] ECtHR [G.C.] 57 Dervaux v. France (App. No. 40975/07) [2010] ECtHR 237 Dog˘an and Others v. Turkey (App. No. 8803-8811/02, 8813/02 and 88158819/02) [2004] ECtHR 140 Dokic v. Bosnia and Herzegovina (App. No. 6518/04) [2010] ECtHR 170 Dolneanu v. Moldova (App. No. 17211/03) [2007] ECtHR 68 Draon v. France (App. No. 1513/03) [2005] ECtHR [G.C.] 56; 237 Dumanovski v. The former Yugoslav Republic of Macedonia (App. No. 13898/02) [2006] ECtHR 56 Edwards v. Malta (App. No. 17647/04) [2006] ECtHR 201 Elia S.r.l. v. Italy (App. No. 37710/97) [2001] ECtHR 237 Engel and others v. The Netherlands (App. No. 5100/71, 5101/71, 5102/71, 5354/72, 5370/7) [1976] ECtHR 25 281

the protection of property rights in comparative perspective

Erkenr and Hofauer v. Austria (App. No. 9616/81) [1987] ECtHR 73 Fadeyeva v. Russia (App. No. 55723/00) [2005] ECtHR 168; 198 Fedorenko v. Ukraine (App. No. 25921/02) [2006] ECtHR 30 Fredin (No. 1) v. Sweden (App. No. 12033/86) [1991] ECtHR 196 Gashi v. Croatia (App. No. 32457/05) [2007] ECtHR 217 Gaskin v. The United Kingdom (App. No. 10454/83) [1989] ECtHR 194 Gasus Dosier-und Fördertechnik GmbH v. the Netherlands (App. No. 15375/89) [1995] ECtHR 55 Gaygusuz v. Austria (App. No. 17371/90) [1996] ECtHR 87 Ghigo v. Malta (App. No. 31122/05) [2006] ECtHR 200-201 Gillow v. The United Kingdom (App. No. 9063/80) [1986] ECtHR 200-201 Golder v. The United Kingdom ( App. No. 4451/70) [1975] ECtHR 18; 22-24; 152 Gorzelik and others v. Poland (App. No. 44158/98) [2004] ECtHR [G.C.] 167 Gubiyev v. Russia (App. No. 20309/03) [2011] ECtHR 248 Guerra v. Italy (App. No. 14967/89) [1998] ECtHR 197 Guiso-Gallisay v. Italy (App. No. 58858/00) [2005] ECtHR 78; 214 Guiso-Gallisay v. Italy (App. No. 58858/00) [2009] ECtHR [G.C.] 79 Gustafsson v. Sweden (App. No. 15573/89) [1996] ECtHR 30 Handyside v. The United Kingdom (App. No. 5493/72) [1976] ECtHR 73; 79; 189 Hasan and Chaush v. Bulgaria (App. No. 30985/96) [2000] ECtHR [G.C.] 152 Hatton and others v. The United Kingdom (App. No. 36022/97) [2003] ECtHR [G.C.] 34; 197 Hentrich v. France (App. No. 13616/88) [1994] ECtHR 167 Housing Association of War Disabled and Victims of War of Attica and Others v. Greece (App. No. 35859/02) [2006] ECtHR 67 Huber v. France (App. No. 26637/95) [1998] ECtHR 164 Hutten-Czapska v. Poland (App. No. 35014/97) [2006] ECtHR [G.C.] 172 Iatridis v. Greece (App. No. 31107/96) [1999] ECtHR [G.C.] 85; 165 Immobiliare Saffi v. Italy (App. No. 22774/93) [1999] ECtHR [G.C.] 69; 209 Inze v. Austria (App. No. 8695/79) [1987] ECtHR 86 Ireland v. The United Kingdom (App. No. 5310/71) [1978] ECtHR 19 Islamic Republic of Iran Shipping Lines v. Turkey (App. No. 40998/98) [2007] ECtHR 60 Jahn and others v. Germany (App. No. 46720/99, 72203/01, and 72552/01) [2005] ECtHR [G.C.] 74 James and others v. The United Kingdom (App. No. 8793/79) [1986] ECtHR 63; 74; 172; 244-245 Karner v. Austria (App. No. 40016/98) [2003] ECtHR 199 Khamidov v. Russia (App. No. 72118/01) [2007] ECtHR 86 Khatun and others v. The United Kingdom (App. No. 38387/97) [1998] ECtHR 200

282

table of cases

Khurshid Mustafa and Tarzibachi v. Sweden (App. No. 23883/06) [2008] ECtHR 72 König v. Germany (App. No. 6232/73) [1978] ECtHR 25 Kopecky v. Slovaquie (App. No. 44912/98) [2004] ECtHR [G.C.] 57; 61 Koua Poirrez v. France (App. No. 40892/98) [2003] ECtHR 87 Kozacıog˘lu v. Turkey (App. No. 2334/03) [2009] ECtHR [G.C.] 75; 245 Kruslin v. France (App. No. 11801/85) [1990] ECtHR 165 Kudla v. Poland (App. No. 30210/96) [2000] ECtHR [G.C.] 156 Kutepov and Anikeyenko v. Russia (App. No. 68029/01) [2005] ECtHR 231 Kyprianou v. Cyprus (App. No. 73797/01) [2005] ECtHR [G.C.] 191 Kyrtatos v. Greece (App. No. 41666/98) [2003] ECtHR 198 Lallement v. France (App. No. 46044/99) [2002] ECtHR 181; 237; 246; 249 Larioshina v. Russia (App. No. 56869/00) [2002] ECtHR (dec.) 226 Larkos v. Cyprus (App. No. 29515/95) [1999] ECtHR 30 Lecarpentier v. France (App. No. 67847/01) [2006] ECtHR 173 Leyla Şahin v. Turkey (App. No. 44774/98) [2004] ECtHR 166 Leyla Şahin v. Turkey (App. No. 44774/98) [2005] ECtHR [G.C.] 165 Lithgow and others v. The United Kingdom (App. No. 9006/80, 9262, 9263, 9265, 9266, 9313 and 9405/81) [1986] ECtHR 74; 245 Loizidou v. Turkey (App. No. 15318/89) [1996] ECtHR [G.C.] 35; 61; 200 Lopez Ostra v. Spain (App. No. 16798/90) [1994] ECtHR 196 Luczak v. Poland (App. No. 77782/01) [2007] ECtHR 160 Luordo v. Italy (App. No. 32190/96) [2003] ECtHR 237 Mamatkulov and Askarov v. Turkey (App. No. 46827/99 and 46951/99) [2005] ECtHR [G.C.] 32 Marckx v. Belgium (App. No. 6833/74) [1979] ECtHR 55; 79; 86; 226 Matheus v. France (App. No. 62740/00) [2005] ECtHR 70 Matos e Silva Lda. and others v. Portugal (App. No. 15777/89) [1996] ECtHR 84 Maurice v. France (App. No. 11810/03) [2005] ECtHR [G.C.] 56; 237 Mazurek v. France (App. No. 34406/97) [2000] ECtHR 86; 237 Megadat.com Srl v. Moldova (App. No. 21151/04) [2008] ECtHR 208; 217 Merger and Cros v. France (App. No. 68864/01) [2004] ECtHR 237 Moreno Gomez v. Spain (App. No. 4143/02) [2004] ECtHR 196-197 Moskal v. Poland (App. No. 10373/05) [2009] ECtHR 217 Muñoz Díaz v. Spain (App. No. 49151/07) [2009] EctHR 88 Niemietz v. Germany (App. No. 13710/88) [1992] ECtHR 200 Nikolova v. Bulgaria (App. No. 31195/96) [1999] ECtHR 81 Novoseletskiy v. Ukraine (App. No. 47148/99) [2005] ECtHR 66 O.N. v. Bulgaria (App. No. 35221/97) [2000] ECtHR (dec.) 30; 68 Olczak v. Poland (App. No. 30417/96) [2002] ECtHR (dec.) 59; 77 Olsson v. Sweden (App. No. 10465/83) [1988] ECtHR 166 Öneryıldız v. Turkey (App. No. 48939/99) [2002] ECtHR 56; 63 Öneryıldız v. Turkey (App. No. 48939/99) [2004] ECtHR [G.C.] 64; 251

283

the protection of property rights in comparative perspective

O’Rourke v. The United Kingdom (App. No. 39022/97) [2001] ECtHR (dec.) 225 Ouzounoglou v. Greece (App. No. 32730/03) [2005] ECtHR 67; 182 Özturk v. Germany (App. No. 8544/79) [1984] ECtHR 25 Păduraru v. Romania (App. No. 63252/00) [2005] ECtHR 56; 217 Paladi v. Moldova ( App. No. 39806/05) [2009] ECtHR [G.C.] 19 Papachelas v. Greece (App. No. 31423/96) [1999] ECtHR [G.C.] 245 Papamichalopoulos and others v. Greece (App. No. 14556/89) 76; 81 [1995] ECtHR Paulić v. Croatia (App. No. 3572/06) [2009] ECtHR 200 Pešková v. The Czech Republic (App. No. 22186/03) [2009] ECtHR 245 Pine Valley Development Ltd and others v. Ireland (App. No. 12742/87) [1991] ECtHR 196; 250 Pitalev v. Russia (App. No. 34393/03) [2009] ECtHR 61 Pla and Pucernau v. Andorra (App. No. 69498/01) [2004] ECtHR 30 Plechanow v. Poland (App. No. 22279/04) [2009] ECtHR 208 Polat v. Turkey (App. No. 23500/94) [1999] ECtHR 99 Posti and Rahko v. Finland (App. No. 27824/95) [2002] ECtHR 61 Potomska and Potomski v. Poland (App. No. 33949/05) [2011] ECtHR 243 Radio France and others v. France (App. No. 53984/00) [2003] ECtHR (dec.) 0 Raimondo v. Italy (App. No. 12956/87) [1994] ECtHR 73 Ramadhi and 5 others v. Albania (App. No. 38222/02) [2007] ECtHR 82 Rantsev v. Cyprus and Turkey (App. No. 25965/04) [2010] ECtHR 35 Rasmussen v. Denmark (App. No. 8777/79) [1984] ECtHR 159 Refah Partisi (The Welfare Party) and Others v. Turkey (App. No. 41343/98, and 41344/98) [2001] ECtHR 152 Ryabykh v. Russia (App. No. 52854/99) [2003] ECtHR 68 S.A. Cabinet Diot and SA Gras Savoye v. France (App. No. 49217/99 and 49218/99) [2003] ECtHR 173; 237 S.A. Dangeville v. France (App. No. 36677/97) [2002] ECtHR 63; 173; 237 Saghinadze and others v. Georgia (App. No. 18768/05) [2010] ECtHR 207 Scollo v. Italy (App. No. 19133/91) [1995] ECtHR 84; 237 Scordino and others (No. 1) v. Italy (App. No. 36813/97) [2003] ECtHR (dec.) 245 Sergey Zolotukhin v. Russia (App. No. 14939/03) [2009] ECtHR [G.C.] 117 Société Colas Est. v. France (App. No. 37971/97) [2002] ECtHR 94; 200 Solodyuk v. Russia (App. No. 67099/01) [2005] ECtHR 241 Sovtransavto v. Ukraine (App. No. 48553/99) [2002] ECtHR 170 Sporrong and Lönnroth v. Sweden (App. No. 7151/75 and 7152/75) [1982] ECtHR 62; 63; 76; 84; 179 Stec and Others v. The United Kingdom (App. No. 65731/01 and 65900/01) [2005] ECtHR [G.C.] (dec.) 84; 87; 230 Străin and others v. Romania (App. No. 57001/00) [2005] ECtHR 77; 82

284

table of cases

Stran Greek Refineries and Stratis Andreadis v. Greece (App. No. 13427/87) [1994] ECtHR 216 Stretch v. The United Kingdom (App. No. 44277/98) [2006] ECtHR 57; 251 Sukhorubchenko v. Russia (App. No. 69315/01) [2005] ECtHR 68 T.W. v. Malta (App. No. 25644/94) [1999] ECtHR 81 Takis Demopoulos and others v. Turkey [2010] ECtHR [G.C.] (dec.). 81; 82 Taşkin and others v. Turkey (App. No. 46117/99) [2004] ECtHR 197 The Holy Monasteries v. Greece (App. No. 13092/87,13984/88) [1994] ECtHR 60 Tre Traktörer Aktiebolag v. Sweden (App. No. 10873/84) [1989] ECtHR 57 Trgo v. Croatia (App. No. 35298/04) [2009] ECtHR 218 Tsfayo v. The United Kingdom (App. No. 60860/00) [2006] ECtHR 164 Tyrer v. The United Kingdom (App. No. 5856/72) [1978] ECtHR 26 Ukraine-Tyumen v. Ukraine (App. No. 22603/02) [2007] ECtHR 60 Urbárska obec Trenčianske Biskupice v. Slovakia (App. No. 74258/01) [2007] ECtHR 245 Van Marle and others v. The Netherlands (App. No. 8543/79; 8674/79; 8675/79; 8685/79) [1986] ECtHR 56 Varnava and others v. Turkey (App. No. 16064-16073/90) [2009] ECtHR [G.C.] 80 Velikovi and others v. Bulgaria (App. No. 43278/98, 45437-48014-4838051362-53367/99, 60036/00, 73465/01, and 194/02) [2007] ECtHR 226 Velosa Barreto v. Portugal (App. No. 18072/91) [1995] ECtHR 198 Ventorino v. Italy (App. No. 357/07) [2011] ECtHR 209 VgT Verein Gegen Tierfabriken v. Switzerland (App. No. 24699/94) [2001] ECtHR 29 Vontas and others v. Greece (App. No. 43588/06) [2009] ECtHR 71 Vrbica v. Croatia (App. No. 32540/05) [2010] ECtHR 169 Wiesinger v. Austria (App. No. 11796/85) [1991] ECtHR 73 Women on waves and others v. Portugal (App. No. 31276/05) [2009] ECtHR 190-191 X and Y v. The Netherlands (App. No. 8978/80) [1985] ECtHR 194 Xenides-Arestis v. Turkey (App. No. 46347/99) [2005] ECtHR 61 Zander v. Sweden (App. No. 142828/88) [1993] ECtHR 84 Zarb Adami v. Malta (App. No. 17209/02) [2006] ECtHR 87 Zehentner v. Austria (App. No. 20082/02) [2009] ECtHR 84 Zwierzynski v. Poland (App. No. 34049/96) [2001] ECtHR 77; 217 Cases before the European Commission on Human Rights Aral, Tekin and Aral v. Turkey (App. No. 24563/94) [1998] ECommHR (dec.) 57 Chrysostomos, Papachrysostomos, and Loizidou v. Turkey (App. No. 15299/89, 15300/89, 15318/89) [1991] ECommHR 35 Federspev v. Italy (App. No. 22867/93) [1995] ECommHR (dec.) 226

285

the protection of property rights in comparative perspective

Howard v. The United Kingdom (App. No. 10825/84) [1985] ECommHR 86 M. & Co. v. The Federal Republic of Germany (App. No. 13258/87) [1990] ECommHR 44 M.N. v. Bulgaria (App. No. 29785/96) [1996] ECommHR (dec.) 30 Smith Kline & French Lab. Ltd v. The Netherlands (App. No. 12633/87) [1990] ECommHR (dec.) 57 Société nationale de programmes France 2 v. France (App. No. 30262/96) [1997] ECommHR 191 Cases before the Court of Justice of the European Union Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (T-306/01) [2005] ECR II-3533 210 Albert Ruckdeschel & Co. and Hansa-Lagerhaus Ströh & Co. v. Hauptzollamt Hamburg- St. Annen; Diamalt AG v. Hauptzollamt Itzehoe (117/76 and 16/77) [1977] ECR 1753 161 Amministrazione delle Finanze dello Stato v. Simmenthal SpA (106/77) [1978] ECR 629 111 Arne Mathisen AS v. Council of the European Union (T-340/99) [2002] ECR II-2905 184 Booker Aquaculture Ltd and Hydro Seafood GSP Ltd v. The Scottish Ministers (C-20 and 64/00) [2003] ECR I-7411 92; 250 Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others (C-84/95) [1996] ECR I-3953 45; 185 Commission of the European Communities v. Federal Republic of Germany (C-62/90) [1992] ECR I-2575 39 Commission of the European Communities v. Hellenic Republic (305/87) [1989] ECR 1461 90 Commission of the European Communities v. Italian Republic (63/86) [1988] ECR 29 90 Doris Salzmann (C-300/01) [2003] ECR I-4899 89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v.Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (C-260/89) [1991] ECR I-2925 39 Erich Stauder v. City of Ulm - Sozialamt (29/69) [1969] ECR 419 38 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich (C-112/00) [2003] ECR I-5659 187 Federal Republic of Germany v. Council of the European Union (C-280/93) [1994] ECR I-4973 92 Flaminio Costa v. E.N.E.L. (6/64) [1964] ECR 585 10 French Republic and Ireland v. Commission of the European Communities (C-296 and 307/93) [1996] ECR I-795 184 Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena (149/77) [1978] ECR 1365 162 286

table of cases

Heirs of M.E.A. van Hilten-van der Heijden v. Inspecteur van de Belastingdienst/ Particulieren/Ondernemingen buitenland te Heerlen (C-513/03) [2006] ECR I-1957 90 Hermann Schräder HS Kraftfutter GmbH & Co. KG v. Hauptzollamt Gronau (265/87) [1989] ECR 2237 184 Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft (5/88) [1989] ECR 2609 93 Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für 6; 38 Getreide und Futtermittel (11/70) [1970] ECR 1125 Italian Republic v. Council of the European Union (C-120/99) [2001] ECR 7997 184 J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities (4/73) [1974] ECR 491 38; 91; 92 José Martí Peix, SA v. Commission of the European Communities (T-125/01) [2003] ECR II-865 184 Jungbunzlauer AG v. Commission of the European Communities (T-43/02) [2006] ECR II-3435 169 Kingdom of Spain v. Council of the European Union (C-179/95) [1999] ECR I-6475 184 Kingdom of the Netherlands v. European Parliament and Council of the European Union (C-377/98) [2001] ECR I-7079 157; 228 Klaus Konle v. Republik Österreich (C-302/97) [1999] ECR I-3099 89 Laserdisken ApS v. Kulturministeriet (C-479/04) [2006] ECR I-8089 93; 192 Lisa Jacqueline Grant v. South-West Trains Ltd (C-249/96) [1998] ECR I-621 40 Liselotte Hauer v. Land Rheinland-Pfalz (44/79) [1979] ECR 3727 6; 91; 174; 185; 250

Margarethe Ospelt and Schlössle Weissenberg Familienstiftung (C-452/01) [2003] ECR I-9743

89

Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary (222/84) [1986] ECR 1651 229 Masterfoods Ltd v. HB Ice Cream Ltd (C-344/98) [2000] ECR I-11369 90 Ministero delle Finanze v. IN.CO.GE.’90 Srl, Idelgard Srl, Iris’90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl (C-10/97 to C-22/97) [1998] ECR I-6307 111 NMB France SARL, NMB-Minebea-GmbH, NMB UK Ltd and NMB Italia Srl v. Commission of the European Communities (T-162/94) [1996] ECR II-427 184 Northern Ireland Fish Producers’ Organisation Ltd (NIFPO) and Northern Ireland Fishermen’s Federation v. Department of Agriculture for Northern Ireland (C-4/96) [1998] ECR I-681 184 NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration (26/62) [1963] ECR 1 110 287

the protection of property rights in comparative perspective

Omar Mohammed Othman v. Council of the European Union and Commission of the European Communities (T-318/01) [2009] ECR II-1627 227 Omega Spielhallen und Automatenaufstelungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn (C-36/02) [2004] ECR I-9609 114 P. v. S. and Cornwall County Council (C-13/94) [1996] ECR I-2143 157 Parti écologiste “Les Verts” v. European Parliament (294/83) [1986] ECR 153 1339 Phil Collins v. Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v. EMI Electrola GmbH (C-92/92 and C-326/92) [1993] ECR I-5145 219 Productores de Música de España (Promusicae) v. Telefónica de España SAU (C-275/06) [2008] ECR I-271 195 Rheinmühlen-Düsseldorf v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel (166/73) [1974] ECR 33 117 Robert Fearon & Company Limited v. Irish Land Commission (182/83) [1984] ECR 3677 90 SA Biovilac NV v. European Economic Community (59/83) [1984] ECR 4057 92 SA Roquette Frères v. Council of the European Communities (138/79) [1980] ECR 3333 184 SAM Schiffahrt GmbH and Heinz Stapf v. Bundesrepublik Deutschland (C-248/95 and C-249/95) [1997] ECR I-4475 228 Sermide SpA v. Cassa Conguaglio Zucchero and others (106/83) [1984] ECR 4209 162 SpA Ferriera Valsabbia and others v. Commission of the European Communities (154, 205, 206, 226 to 228, 263, and 264/78, 39, 31, 83, and 85/79) [1980] ECR 907 92 T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung (C-68/95) [1996] ECR I-6065 38 The Queen v. Minister of Agriculture, Fisheries and Food, ex parte National Federation of Fishermen’s Organisations and others and Federation of Highlands and Islands Fishermen and others (C-44/94) [1995] ECR I-3115 184 The Queen v. Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex parte H.A. Standley and Others and D.G.D. Metson and Others (C-293/97) [1999] ECR I-2603 174; 185 The Queen, on the application of Alliance for Natural Health and NutriLink Ltd v. Secretary of State for Health (C-154/04) and The Queen, on the application of National Association of Health Stores and Health Food Manufacturers Ltd v. Secretary of State for Health and National Assembly for Wales (C-154 and 155/04) [2005] ECR I-6451 92 The Queen, on the application of: Swedish Match AB and Swedish

288

table of cases

Match UK Ltd v. Secretary of State for Health (C-210/03) [2003] ECR I-11893 92; 174 Tod’s SpA and Tod’s France SARL v. Heyraud SA (C-28/04) [2005] ECR I-5781 219 United Kingdom of Great Britain and Northern Ireland v. Council of the European Union (C-150/94) [1998] ECR I-7235 184 Van den Bergh Foods Ltd v. Commission of the European Communities (T-65/98) [2003], ECR II-4653 90 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag (C-368/95) [1997] ECR I-3689 39 Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (C-402 and 415/05 P) [2008] ECR I-6351 209-211 Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities (T-315/01) [2005] ECR II-3649 210; 236 Zuckerfabrik Bedburg AG and others v. Council and Commission of the European Communities (281/84) [1987] ECR 49 174 Cases before Italian Courts Court of Cassation Court of Cassation, Joint Panels, 26 February 1983, No. 1464 78 Court of Cassation, Criminal Section I, 10 July 1993, No. 2194 101 Court of Cassation, Joint Panels, 4 March 1997, No. 1907 78 Court of Cassation, Civil Section I, 16 July 1997, No. 6515 78 Court of Cassation, Civil Section I, 1 January 1998, No. 148 78 Court of Cassation, Civil Section I, 8 July 1998, No. 6672 101 Court of Cassation, Civil Section I, 26 May 2000, No. 6957 132 Court of Cassation, Civil Section II, 13 April 2001, No. 5564 228 Court of Cassation, Civil Section I, 19 October 2006, No. 22357 142 Council of State Council of State, Section IV, 2 March 2010, No. 1220/2010 104 Constitutional Court Constitutional Court, 3 July 1956, No. 11 154 Constitutional Court, 26 January 1957, No. 3 177 Constitutional Court, 29 December 1959, No. 67 221 Constitutional Court, 12 February 1960, No. 5 221 Constitutional Court, 10 May 1963, No. 64 176 Constitutional Court, 7 March 1964, No. 14 112 Constitutional Court, 20 January 1966, No. 6 178; 249 Constitutional Court, 10 June 1966, No. 65 171 Constitutional Court, 17 February 1971, No. 22 141 Constitutional Court, 21 April 1971, No. 79 129

289

the protection of property rights in comparative perspective

Constitutional Court, 27 July 1972, No. 155 175 Constitutional Court, 30 October 1975, No. 232 112 Constitutional Court, 15 January 1976, No. 3 and 4 175 Constitutional Court, 28 July 1976, No. 205 and 206 112 Constitutional Court, 20 December 1976, No. 245 177 Constitutional Court, 22 December 1977, No. 153 175 Constitutional Court, 29 December 1977, No. 163 112 Constitutional Court, 30 January 1980, No. 5 221 Constitutional Court, 22 December 1980, No. 188 101 Constitutional Court, 1 February 1982, No. 15 101 Constitutional Court, 30 November 1982, No. 204 158 Constitutional Court, 15 July 1983, No. 252 129; 171 Constitutional Court, 5 October 1983, No. 300 202 Constitutional Court, 7 May 1984, No. 139 177 Constitutional Court, 8 June 1984, No. 170 112 Constitutional Court, 23 April 1986, No. 108 125 Constitutional Court, 23 July 1987, No. 278 187 Constitutional Court, 30 December 1987, No. 641 176 Constitutional Court, 11 February 1988, No. 217 155 Constitutional Court, 9 November 1988, No. 1028 175 Constitutional Court, 11 July 1989, No. 391 176 Constitutional Court, 22 December 1989, No. 575 220 Constitutional Court, 22 June 1990, No. 307 163 Constitutional Court, 13 July 1990, No. 328 129; 177 Constitutional Court, 31 July 1990, No. 384 214 Constitutional Court, 15 April 1993, No. 163 158 Constitutional Court, 7 November 1994, No. 379 176 Constitutional Court, 6 April 1995, No. 108 132 Constitutional Court, 23 May 1995, No. 188 214 Constitutional Court, 29 June 1995, No. 288 132; 248 Constitutional Court, 2 November 1996, No. 369 223 Constitutional Court, 27 December 1996, No. 419 176 Constitutional Court, 23 July 1997, No. 262 176 Constitutional Court, 30 July 1997, No. 288 101 Constitutional Court, 26 February 1998, No. 27 163 Constitutional Court, 12 December 1998, No. 399 101 Constitutional Court, 10 May 1999, No. 167 163; 223 Constitutional Court, 20 May 1999, No. 179 220 Constitutional Court, 17 March 2000 No. 70 132 Constitutional Court, 31 May 2000, No. 164 176 Constitutional Court, 24 July 2000, No. 332 193 Constitutional Court, 7 May 2002, No. 155 132 Constitutional Court, 23 May 2003, No. 185 177 Constitutional Court, 4 June 2003, No. 185 176

290

table of cases

Constitutional Court, 7 July 2005, No. 264 158 Constitutional Court, 27 October 2006, No. 342 163 Constitutional Court, 24 October 2007, No. 348 and 349 102; 103; 215; 244 Constitutional Court, 25 November 2008, No. 389 142 Constitutional Court, 9 April 2009, No. 110 142 Constitutional Court, 4 December 2009, No. 317 188 Constitutional Court, 15 January 2010, No. 10 155 Constitutional Court 8 March 2011, No. 80 104 Cases before French Courts Court of Cassation Court of Cassation, Expropriation temporary Section, 29 October 1965, App. No. 70239 134 Court of Cassation, Civil Section III, 30 May 1972, App. No. 71-70206 134 Court de Cassation, Mixed Section, 24 May 1975, App. No. 73-13556 113 Court of Cassation, Commercial Section, 8 March 1994, App. No. 92-14394 183 Court of Cassation, Civil Section III, 4 January 1995, App. No. 92-20013 141 Court of Cassation, Civil section III, 8 March 1995, App. No. 93-70312 135 Court of Cassation, Commercial Section, 3 May 1995, App. No. 94-10778 183 Court of Cassation, Commercial Section, 17 December 1996, App. No. 94-17601 183 Court of Cassation, Civil Section III, 25 June 1997, App. No. 96-70030 135 Court of Cassation, Civil Section III, 25 June 1997, App. No. 95-70257 135 Court of Cassation, Commercial Section, 24 November 1998, App. No. 94-20447 183 Court of Cassation, Social Section, 14 January 1999, App. No. 97-12487 224 Court of Cassation, Civil Section III, 2 February 1999, App. No. 98-70011 135

Court of Cassation, Plenary Session, 2 June, 2000, App. No. 99-60274 106 Court of Cassation, Civil Section II, 23 October 2003, App. No. 02-16303 183 Court of Cassation, Civil Section III, 18 May 2005, App. No. 04-11349 183 Court of Cassation, Civil Section I, 28 November 2006, App. No. 04-19134 141 Court of Cassation, Civil Section II, 21 December 2006, App. No. 30-586 224

Court of Cassation, Civil Section II, 3 May 2007, App. No. 05-19439 139 Court of Cassation, Civil Section III, 4 February 2009, App. No. 08-11.433 183 Court of Cassation, Civil Section II, 19 February 2009, App. No. 07-21426 224 Court of Cassation, Plenary Session, 29 June 2010, App. No. 10-40001 108

291

the protection of property rights in comparative perspective

Council of State Council of State, 1 March 1968, No. 62814 113 Council of State, 20 October 1989, No. 108243 113 Council of State, 27 October 1995, No. 136727 and 143578 156 Council of State, 3 July 1998, No. 158592 182 Council of State, 30 October, 1998, No. 200286, 200287 106 Council of State, 11 February 2001, No. 2111510 134 Council of State, 9 April 2001, No. 232208-232210 137 Council of State, 1 June 2001, No. 234321 137 Council of State, 29 March 2002, No. 243338 140 Council of State, 21 November 2002, No. 251726 213 Council of State, 2 July 2003, No. 254536 137 Council of State, 17 February 2011, No. 34445 246 Constitutional Council Constitutional Council, 16 July 1971, No. 71-44 DC 133 Constitutional Council, 27 December 1973, No. 73-51 DC 159 Constitutional Council, 2 December 1976, No. 76-70 DC 151 Constitutional Council, 16 January 1982, No. 81-132 DC 133; 139; 145;

171; 223; 229; 247

Constitutional Council, 30 December 1982, No. 82-150 DC 140 Constitutional Council, 20 July 1983, No. 83-162 DC 177 Constitutional Council, 23 August 1985, No. 85-197 DC 150 Constitutional Council, 13 December 1985, No. 85-198 212, 223, 246 Constitutional Council, 16 January 1986, No. 85-200 DC 139 Constitutional Council, 26 June 1986, No. 86-207 DC 224 Constitutional Council, 18 September 1986, No. 86-217 DC 224 Constitutional Council, 25 July 1989, No. 89-256 DC 134 Constitutional Council, 8 January 1991, No. 90-283 DC 139; 174; 229 Constitutional Council, 15 January 1992, No. 91-303 DC 139; 174 Constitutional Council, 20 January 1993, No. 92-316 DC 212 Constitutional Council, 21 July 1994, No. 94-346 DC 218 Constitutional Council, 27 July 1994, No. 94-343/344 DC 155 Constitutional Council, 29 July 1994, No. 94-345 DC 188 Constitutional Council, 9 April 1996, No. 96-373 DC 212 Constitutional Council, 29 July 1998, No. 98-403 DC 137; 224 Constitutional Council, 16 December 1999, No. 99-421 DC 151;169 Constitutional Council, 29 December 1999, No. 99-425 DC 139 Constitutional Council, 20 July 2000, No. 2000-434DC 213 Constitutional Council, 7 December 2000, No. 2000-436 DC 224 Constitutional Council, 12 January 2002, No. 2001-455 DC 169 Constitutional Council, 26 January 2003, No. 2003-473 DC 151 Constitutional Council, 10 June 2004, No. 2004-496 DC 8; 114 Constitutional Council, 27 July 2006, No. 2006-540 DC 114

292

table of cases

Constitutional Council, 30 November 2006, No. 2006-543 DC 114 Constitutional Council, 10 June 2009, No. 2009-580 192; 195 Constitutional Council, 10 June 2010 No. 2010-607 DC 139 Constitutional Council, 17 September 2010, No. 2010-26 QPC 135; 225 Constitutional Council, 22 September 2010, No. 2010-33 QPC 134 Constitutional Council, 6 October 2010, No. 2010-43 QPC 135 Constitutional Council, 20 January 2011, No. 2010-87 QPC 134 Constitutional Council, 8 April 2011, No. 2011-118 QPC 140 Constitutional Council, 24 June 2011, No. 2011-141 QPC 140

293

Index

the protection of property rights in comparative perspective

Arbitration awards -possessions, as, 216 Art. 2 ECHR -positive obligations 65 -socio-economic rights, and, 164 Art. 3 ECHR 26; 159 -minimum standard of life 164;227 Art. 6 ECHR -access to court 22-23; 152 -civil rights 84; 164 -criminal charge 26 -procedural guarantees 69; 152; 216 -rule of law, and, 23; 69 Art. 8 ECHR 85; 193-194 -positive obligations 196-197 -right of succession 31; 86 -tenant, and, 199-200 Art. 9 ECHR 83 Art. 10 ECHR 72 -intellectual property, and, 191 -positive obligations 189-190 Art. 13 ECHR 69 Art. 14 ECHR 86-87; 159-160 -inheritance law, and, 54; 160-161 -private act, and, 30-31 -social security rights, and, 87;

164; 230

-tenancy law, and, 199 Art. 34 ECHR 29-30 -legal entity 60 Art. 41 ECHR 80 Art. P1-1 ECHR -autonomous meaning 55-56; 94; 251 -drafting 53; 73; 170; 238 -continuing violation 60-62; 67 -economic loss 219; 232 -just satisfaction 81 -non-pecuniary damages 246 -pecuniary damages 78; 81 -positive obligations 28; 63 ff.; 208; 226 -procedural guarantees 70; 84; 218 -restitutio in integrum 81 -systemic violation 78 Autonomous meaning doctrine 24 ff.

296

-concept of law, and, 165 Bourgeois, Léon, 162 Charter of Fundamental Rights of the European Union 42 ff. -Art. 17 93 ff.; 166; 170 -Art. 52 47; 166; 170; 183; 186 Claims -possessions, as, 57; 62-63 -property, as, 132; 139-140 Clientele -possessions, as Commercial interests 57; 92; 250 Companies -locus standi 59-60 -nationalization of, 74; 89; 144-145; 223 Comparative law -method 7; 10 -interpretation, and, 25; 55 Compensation -assessment, of, 74; 81; 134-135;

181-182; 218; 221 ff.; 244 ff.

-constructive expropriation, and, 78;

214-215; 222

-general principle of international law, as, 73 -lack, of, 75 -proportionality, and, 74 Compulsory purchase 86 Confiscation 73 Constitutional objectives 151; 169;

188; 224; 239

Contract -ECHR influence on, 30 Constitutional traditions common to the Member States 6-7; 11-12; 38;

104; 114; 169; 210; 229

Copyright protection 57; 92 ff.; 219-220 Counter-limits doctrine 8; 112; 114-115 Deprivation of property

-Decent housing

62; 71; 73 ff:;

94; 134; 136; 165 224

index

-De facto expropriation 86 ff. Discrimination -private act, and, 40-41 -prohibition of, 86 ff.; 157 ff.;

202; 219-220

Duguit, Léon

124; 150

Economic interest -possession,as, 56-57; -general interest, as, 174 Environmental -nuisance 76-77; 96 ff. -protection 176 Equality 157 ff. -before public burdens 246 -constitutional law, and, 158-159;

169; 177; 220; 223-223

-ECHR, and, 161; 218 -EU law, and, 47; 153; 161-162; 219 Equivalent protection doctrine 35;

-direct applicability

126; 127 73;99

-horizontal effect 29; 31 -interpretation 7; 22 ff.; 32 -interpretative superiority 100 -judicial control system 20 -supremacy 31; 99; 104; 107; 117 European Court of Human Rights (ECtHR) -judicial activism 24; 32; 34; 179 -judicial deference 49; 117; 236; 240 -judicial review of EU acts 47 -role 35; 48; 66; 235 European Human Rights Law -academic subject, as, 17 ff. European Court of Justice (ECJ) -guardian of fundamental rights, as,



Fair balance test -compensation, and, 68; 74; 181; 215; 226; 241; 248

-conflicting rights, and, 186; 200-201 -criticisms 179; 240 -disproportionate burden 180 -due process, and, 167; 173; 200; 208 -national courts, and, 182 -positive obligations, and, 180; 208 General principle -EU law, of, 7; 37 ff.; 90; 99; 104;

115; 153; 157; 161-162; 169; 183; 210; 229

-international law, of,

23; 73-74; 80

44 ff.

EU accession to ECHR 39 ff.; 47-48 European consensus 27; 238 European Convention on Human Rights (ECHR) -constitutional instrument 35; 45 -consistent interpretation 31; 49;

-primacy doctrine, and, 110 -role 48; 235 Expropriation -constructive, 87 ff.; 168; 213 ff.; 222 -de facto, 76-77

Home -protection under Art. 8 86; 193; 196 ff. -protection under Art. P1-1 30;

73-74; 82; 86; 140; 182

Housing -right to, 155; 225 Human dignity -constitutional law, and, 115; 130-131;

154-155; 224

-general principle of EU law, as, 157 -public order, and, 156 Hunting rights 80; 88; 180-181; 212 Inflation Inheritance law

68; 76; 241-242 31; 54; 86; 160; 181-182; 237

Intellectual property -constitutional law, and, 132; 139; 193 -ECHR law, and, 57-58; 191-192 -EU law, and, 93-94; 194 Legality requirement -ECHR law, and, 70; 81; 166; 168; 242

37; 94

297

the protection of property rights in comparative perspective

-EU law, and, 169; 184 -national law, and, 169; 212; 214-215; 239 -quality of law 166-167; 169 Legitimate expectations 56; 173; 250 Leroux, Pierre 162 Licences -possessions, as, 57 -withdrawal of, 57; 208 Living instrument doctrine 24 ff. Margin of appreciation

Means of subsistence

181; 217; 227 62; 74; 77; 89;



Nuisance Owners -duty

144-145; 166 66-67; 183; 196 ff.

128-129; 234; 246



Planning law 68; 133; 220 Principle of subsidiarity -ECHR law, and, 21; 47; 70; 115; 116 EU law, and, 183 -national law, and, 130-131 Property -social concept 228; 243 -subjective value 135; 181-182; 241; 248 Proportionality -standard of judicial review within EU law, as, 193 ff. Reasonableness principle

158; 177; 220; 222; 229

Rule of law -origins 150-151 -ECHR interpretation, and, 23; 152; 203

-EU law, and, -quality of justice, and, -quality of law, and,

298



-EU law, and,

163; 221; 223-224; 228; 230 164-165; 202; 228

Tenancy law -fair rent 171; 175 Treaty on the functioning of the European Union (TFEU) -Art. 345 3; 12; 89-90; 166

5; 21; 49;

86; 116; 160; 187; 199; 219; 230; 236

Nationalisation

Solidarity -constitutional aw, and 130-131;

153 69; 207; 229 229; 236

Universal declaration of Human Rights 3; 8; 18-19; 156; 202