The multilevel protection of the right of property in Europe
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The multilevel protection of the right of property in Europe Dolores Utrilla Ferna´ndez-Bermejo
Published online: 23 December 2014 Ó China-EU School of Law 2014
Abstract Within the European legal area, the safeguard of the right to property takes place at the interface between international law, EU law and each national legal system. Each of these laws has its own scope of application and level of protection, which partially differs from those of the others, as well as its own supreme jurisdiction which seeks for itself the final word in the field of human rights law. This complex background raises questions concerning the law applicable to interferences in the relevant rights, as well as the terms of the interaction among legal orders and their respective supreme courts, in a context of dialogue and potential conflict that requires consistent articulation in a system in the interest of legal certainty of the right’s holders. This paper provides an overview of the current constitutional system of protection of the right to property in Europe against interferences caused in its sphere by public authorities, both national (and subnational) or European. To that end, this article considers both the legal pluralism perspective along with the need for a systematic scheme of relations between legal orders. Keywords Right of property Protection of fundamental rights Multilevel legal orders Conflicts of jurisdiction European legal area
Conference pronounced at the workshop ‘‘Constitutional Protection of Economic Activities in China and EU’’, held at the China University of Political Sciences and Law (Beijing) on March 28th, 2014. D. U. Ferna´ndez-Bermejo Department of Public Law, University of Castilla-La Mancha (UCLM), Ciudad Real, Spain D. U. Ferna´ndez-Bermejo (&) Center for European Studies (UCLM), Ronda de Calatrava s/n, 13071 Ciudad Real, Spain e-mail: [email protected]
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1 Introduction Within the European context, the protection of the right of property has traditionally taken place only at the national level, while its supranational safeguard has until relatively recently been hindered due to two main reasons. The close relationship of the idea of property as a fundamental right with each State’s political and ideological orientations, on the one hand, and the perception of property as an institution closely related to the national political, economic and social policies, on the other, have rendered it difficult for decades to build an integrated system of protection for the right of property at the European level.1 However, legal developments materialized in Europe during the last 60 years have markedly changed this scenario. Hence, nowadays, the safeguard of the right to property2 is no longer reduced to the national field, but rather takes place at the interface between international law, EU law and each national legal system. At the international level, the guarantee of the right of property was included within the law of the Council of Europe in 1952 through it
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