European Property Rights and Wrongs - Diana Wallis MEP
European Property Rights and Wrongs - Diana Wallis MEP
European Property Rights and Wrongs - Diana Wallis MEP
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3) the EU Charter plays a role in this process as being the ultimate EU yardstick for<br />
the application of the freedom of persons, services, goods <strong>and</strong> capital. The right<br />
to property is protected by article 17 (1) of the Charter: “Everyone has the right<br />
to own, use, dispose of <strong>and</strong> bequeath his or her lawfully acquired possessions.<br />
No one may be deprived of his or her possessions, except in the public interest<br />
<strong>and</strong> in the cases <strong>and</strong> under the conditions provided for by law, subject to fair<br />
compensation being paid in good time for their loss. The use of property may be<br />
regulated by law in so far as is necessary for the general interest.” Article 17 is<br />
clearly inspired by Article 1 of the First Protocol to the <strong>European</strong> Convention on<br />
Human <strong>Rights</strong>. Case law developed by the <strong>European</strong> Court of Human <strong>Rights</strong> will<br />
therefore be a benchmark for how the CJEU will interpret article 17. 35<br />
Focussing on this negative integration process, resulting from the impact<br />
of fundamental human rights, I will now make some remarks, first of all, on<br />
cross-border acquisition of immovable property <strong>and</strong> the negative effects which<br />
unknown public law limitations may have, which has become a serious problem<br />
for home owners in Spain. Secondly, I will make some remarks on the protection<br />
of pension rights, a problem which is bound to arise in the wake of the present<br />
financial crisis <strong>and</strong> the resulting austerity measures.<br />
Cross-border acquisition of immovable property<br />
More <strong>and</strong> more frequently, citizens from Member States use their freedom of establishment,<br />
as laid down in article 49 ff. TFEU <strong>and</strong> their rights as EU citizens laid<br />
down in articles 18 ff. TFEU. To make this even more explicit, let me quote article<br />
20 (2): “Citizens of the Union shall enjoy the rights <strong>and</strong> be subject to the duties<br />
provided for in the Treaties. They shall have, inter alia: (a) the right to move <strong>and</strong><br />
reside freely within the territory of the Member States (…)”. An essential aspect<br />
of establishment is renting or acquiring a home. Following the generally applied<br />
rule “lex rei sitae”, acquiring home ownership is governed by the law of the country<br />
where the home is located. I use the term “ownership” in a broad functional<br />
35 A recent summary of ECHR case law (in Dutch) was given by B. Akkermans, Artikel 1<br />
Eerste Protocol EVRM, in: J.H. Gerards, A.W. Heringa, H.L. Jansen <strong>and</strong> J. van der Velde<br />
(eds.), EVRM Rechtspraak en Commentaar inclusief EHRC, 2011 (Article 1 First Protocol<br />
ECHR, in: ECHR Case Law <strong>and</strong> Comments, including the Commission on Human <strong>Rights</strong>)<br />
(The Hague: SDU Uitgevers, loose leaf edition).<br />
46<br />
A <strong>European</strong> L<strong>and</strong> Law?