European Property Rights and Wrongs - Diana Wallis MEP

same. In Chassagnou v France (application 25088/94 etc, April 29th 1999) local
inhabitants were given hunting rights over private land in the commune, but the
legislation allowing this fell when it emerged that the legislation in the Dordogne
did not apply in many other départements of France. The Valencian authorities
may need to explain why their version of the infrastructure law has created so
much greater injustice than the less intrusive regimes in place in other regions.
It is relatively easy to find that an activity of a public body is potentially subject
to a human rights review, but much more difficult to find an actual breach. This
is because it is open to the state to justify an interference with property, and a
wide margin of appreciation is allowed in favour of a state. Justification involves
two preconditions – lawfulness and the proportionate pursuit of a legitimate aim
of public policy. So far as lawfulness is concerned, presumably the actions in behaviour
in Valencia have been within the broad remit of legislation passed by
the regional authority, but one might wish to consider in detail whether legal
procedures have been followed and whether any corruption or improper motive
can be proved. The potential difficulty of breaches of EU public procurement rules
has receded in the light of the ECJ decision in Commission EU v Spain (C-306/08,
May 26th 2011). Even if most cases involve actions that are legal, one might expect
a residue of cases in which the legitimacy of what has been done is open to
question. Finally, then, most human rights cases boil down to a dispute about the
justification of particular legislation. It is relatively easy for a state to show that it
has passed enactments in pursuance of a legitimate object. That done the task is
to show that the solution adopted is proportionate.
Interference must achieve a “fair balance” between the demands of the general
interest of the community and the requirements of the protection of the
individual’s fundamental rights. … [T]here must be a reasonable relationship of
proportionality between the means employed and the aim pursued. In determining
whether this requirement is met, the Court recognises that the State enjoys a
wide margin of appreciation with regard both to choosing the means of enforcement
and to ascertaining whether the consequences of enforcement are justified
in the general interest for the purpose of achieving the object of the law in question.
The requisite balance will not be achieved if the person concerned has had to
bear an individual and excessive burden (Depalle v France, application 34044/02,
March 29th 2010, para 83).
52
A European Land Law?