Class 18

Question 1

What is the right to property how how is it protected?

Answer 1

• Protected in art. 1 of the first protocol.
• Was quite a controversial right in days of the creation of the UN and this controversial nature is equally respected in the wording of article 1 which is perhaps not one of the most clear provisions we can imagine.
• Art. 1: every natural or legal persons are entitled to the peaceful enjoyment of their possessions: there is a right of property: related to private law but again a lot of conceptual differences in European property law: autonomous understanding of the possessions.

Question 2

What does the right of property protect?

Answer 2

• It protects existing possessions: ownership: of material goods, moveable or immoveable, which is a classic notion in many of our legal systems. It extents to certain other rights and interests that constitute assets.
  
  • Also clientele of a business, certain economic interests, some security rights and goods, ownership.
  • See: Bosporus Airways = not the legal owner of the airplane but claiming a right that is very much part of possessions in the sense of the convention.
• Also: the compensation for loss of property when it is uncontested.

Question 3

Are welfare benefits covered?

Answer 3

• More discussion on welfare benefits, social security rights: as a principle, these rights are not covered by the European convention because it is a convention on civil and political rights but the court has extended the scope of some of the rights.
• But states are very eager to protect their own conceptions of welfare states: political choices that perhaps should not be open to scrutiny from an international court –> the court shies away from this.
• Case law makes a difference: Stec case
  
  • Benefit that is result of personal contributions of the person: eg. private pension schemes = there is a public element to it because there are tax advantages: but if they depossess = interference with your rights: so this can be covered by art. 1 of the First Protocol.
  • Public funded social welfare benefit.
• This does not mean that you have a right to those welfare benefits: , what it does is saying that whenever national legal systems confer such advantages to you as a citizen, those advantages, if you fulfill the requirements, are protected. So it does not confer you a right to something, it says it protects your national right to something.

Question 4

Can the right to property also extend to rights that do not exist yet?

Answer 4

• Yes, can also cover assets, claims for which the title still needs to be created with the intervention of courts.
• Condition: there must be a sufficient basis in the domestic law: you have to argue that you at least had a legitimate expectation to the effective enjoyment of that particular right.
• Eg. established in case law = it should be very likely that you win your claim: You don’t possess the possession but there is a good chance that it will be conferred. Article 1 first paragraph applies.
• What is not covered is, the right to acquire something in the future. Neither the mere hope of a recognition of a right. That is not covered. Neither are covered situations in which you claim a right or a possession that is a conditional one and the conditions are not fulfilled.

Question 5

What are the general characteristics of the prohibition of interference with the right of property = negative obligations of the state?

Answer 5

Article 1 contains 3 scenarios:

1. General rule: peaceful enjoyment of possessions = all the rest
2. Interferences that are control of the use of property and taxes = using control of property and taxes
3. Specific situation: protection of the deprivation of possessions

The court has to opt which scenario is applicable and the first one will be applicable when 2 and 3 are not applicable.

Question 6

What is expropriation?

Answer 6

• First place: formal deprivation = public authorities following domestic legal order taking away your property rights on goods: you stop being the legal owner and the public authorities are now owner = formal transfer of ownership.
• This is something different than de facto expropriation: situation where you remain the owner of the goods but your are completely unable to use your goods, to sell them or to make good use of it.
  
  • Eg. you have a nuclear power plant and the governement decides that you can no longer use it = de facto expropriation.

Question 7

What are the typical cases of expropriation?

Answer 7

• Nationalisation: compulsory transfers of property to public authorities.
• This is the case when it is a final situation, so not the case when it is just temporary.

Question 8

What then are the conditions for assess the lawfulness of an interference?

Answer 8

Written in a different way but similar reasoning as in art. 8-11:

1. Legal basis: domestic law and it has to be accessible and sufficiently clear because it needs to protect against arbitrary interferences. It should also respect general principles of law. Also adequate and effective compensation.
2. Legitimate goal: you cannot be dispossessed for any reason = should be for the public interest: there is scrutiny by the court but it is quite wide so it can also be the social economic policy by states, but separation of power is quite important here because reducing the margin of appreciation of states here = limits their possibility to develop own social and economic policies.
   
   • So still margin of appreciation left to states so the decision is still = what is public interest.
3. Proportionality test: fair balance. Often there has to be compensation, not necessarily full compensation = reasonably related to the property taken.

Question 9

What about the compensation?

Answer 9

• It does not need to be full compensation: amount of compensation should be based on value of the object and the date which the property was lost.
• Court approaches the principles and rules but also needs to take into account the specific characteristics of the good.
• Point is: legal systems should not be to have too inflexible rules especially when it comes to massive expropriations. Where there is just one rule applied no there should be a diversity of situations called for an individualised look.
• Compensation should take into account the difference between the loss of property and the payment of the property. So if there is inflation and that should be duly take considered and compensated for. And then what is very clear is that only in very exceptional circumstances a compensation that amounts to almost nothing or a total lack of compensation could be acceptable.

Question 10

What was the King Greece case?

Answer 10

• After the change of the political regime in Greece, where all property belonged to the former King and that was all confiscated without any compensation.
• No fair balance between the public interest and the course of action.
• Also same for cases with transitional justice: case vs. Germany:
  
  • legal changes interefered with their rights in the last months of the German Democratic Republic. The new German legislator after the reunification had to pass a law that corrected the unlawful effects of the old DDR law. So that’s a very specific situation of course. And even under such circumstances in those reforms no compensation is paid to parties who believe that they normally would be entitled to compensation.
• Also cases where the compensation is 50ù and then taxed again at 20% = problematic.

Question 11

Is the obligation to sell property also covered?

Answer 11

• Yes, that is also covered by the provision.
• Also covered: cases where the hypothesis of the deprivation comes into play are cases where a retroactive legislation is passed and it is applicable to pending proceedings. And where this leads to a total lack of compensation.

Question 12

What is the second category of cases wrt art. 1 of Protocol 1?

Answer 12

Cases where the interference with the right to property is with the protection of property: control of the use of property: taxes, other contributions and penalties.

Measures that limit the right of owners to dispose of their property so limits to donate or to have full enjoyment of it.

• Again not a watershed so not clear distinction but more about the intensity of the measures.

Typical cases: Usually linked to the administrative state that intereferes with social economic relations:

• Restrictions on possibility of gifts and legacies in civil law
• Restriction on the use of property for certain business purposes
• Restrictions constructions interferences with say typically the relation between landlords and tenants

Question 13

What are the conditions for the interferences of property?

Answer 13

• Legal basis, legitimate aim, being an aim of general interest.
• Wide range of purposes: town planning, housing policy, protection of the environment or maybe protection of morals. So, once again a wide interest. Wide margins of appreciation will also mean that the court will respect easily the judgements of the national authorities, as to what ease the general interest. Except of course, if there is manifestly without any foundation.
• Proportionality: there should be a reasonable relation of proportionality between the aim pursued and the control of the use of property that was sought. You can, well, maybe you had that way some for examples firearms…you are entitled to have them, to possess them, but you should have a permit. That is the control of the use, but seems to be completely proportionate.
  
  • Not super strict: eg. housing policies in Amsterdam where the governement decided to reduce the rents with 80% = no violation.
  • Also case where a landlord could not evict a bad tenant for 12 years violation.

Question 14

What was the Hutten- Czapska case?

Answer 14

People owned houses under the communist regime and the legislator decided that all of the tenants were deemed to have, to conclude an agreement of indeterminate duration with the owner and the rent was also fixed at the certain amount: maximum rent is quite low and the landlords have to do the maintenance = quite expensive

1. Legal basis: protecting the tenants
2. Issue of general interest
3. Fair balance: no, disproportionate burden on the landlords.

Question 15

What is the stance of the court on taxes?

Answer 15

• Taxes: it does not insist on very much and does not seem to ask for a general interest: it is as if the taxes are by definition in the general interest.
• States enjoy a very wide margin of appreciation because tax law is at the core of sovereignty = much liberty in levying taxes.
• Exception: taxes cannot be excessive: very contentious notion and not sure if there is an objective answer

Question 16

What is the last category: the other interferences with the right of property?

Answer 16

• Idea that interferences that are not deprivation of possessions, nor regulation of the use but nevertheless a fact the enjoyment of your property, the destruction of someone’s house, the denial of access to your property, creation of situation of uncertainty of the status of goods, eviction of lessee from least properties, these are examples.
• First paragraph does not state the conditions but the logic of the rule of law so the 3 conditions apply:
  
  • legal basis, rule of law, legality, that means public interest and proportionality.

Question 17

What are the cases on the other intereferences?

Answer 17

• Forced eviction = depending on the circumstances this can be an interference with the enjoyment of your property.
• Destruction of property: that the refusal to pay a compensation by a court, as in the case of Greek refineries, is a residual history.
• Case Sprangelate vs. Sweden:
  
  • Expropriation but it has not been executed for years = uncertainty so this was a violation.
  • Public authorities should act swiftly.
• Right of pre-emption in the interest of protection of cultural heritage: master pieces cannot be sold to outsiders = limits for the sale and they first have to be proposed to the public authorities.
• Also: schuldbemiddeling: here they tell the creditors = just forget about it: debt adjustment: Finnish case:
  
  • someone got a claim that got reduced to 20000 euros to 365 euros. So, that is quite something, and looking at it the court found that there was no excessive burden on the applicant, whereas the most probably the applicant thinks that he/she only got a symbolic amount of money. So, that is to show you that the court is really looking at it from a lot of distance.

Question 18

What are the positive obligations when it comes to the right to property

Answer 18

• Compensation is a positive obligation.
• Also protecting owners against acts of criminal damages: a way to protect your property against third parties = legal system and also implementation.
  
  • Your legal framework has the framework to offer the tools to obtains such compensations.

Question 19

What is the case Koufaki and Adedy vs. Greece?

Answer 19

• After the regufee crisis: immigrants occupied a hotel and the owners wanted get back the effective enjoyment of their hotel. So, pubic authorities are there under double constraints: that is one, provide those indeed for shelter and two, protect persons houses or apartments or whatever hotels or squats also against, well, protect also their rights.
• But I think this is an interesting case in discussions that often comes up when we are talking about the squatting houses. You can see a kind of transfer of obligations so to say, from the public housing obligations. It was basically the idea that some people are in the need of housing now, that is true.
  
  • Who has the burden to carry out the public policy obligations? This case seems to indicate that public authorities need to pick up their responsibility and that is, you can’t just shift your responsibility to private persons, private land lords, hotel owners or whoever by saying ok, this is a fine situation, people in need there is shelter, there is housing. That’s not how it functions. States have obligations there.