Protocol 1 Article 1

Protocol 1 Article 1 | Right to peaceful enjoyment of property

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Protocol 1 Art.1 of the European Convention on Human Rights provides:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The European Court of Human Rights has indicated that this Article contains three distinct rules ((1) Sporrong (2) Lonnroth v Sweden (1982) 5 EHRR 85):

(1) The general principle of peaceful enjoyment of property (first sentence of the first paragraph);
(2) The rule that any deprivation of possessions should be subject to certain conditions (second sentence, first paragraph);
(3) The principle that States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (second paragraph).

Peaceful enjoyment of possessions include the right of property (Marckx v Belgium (1979) 2 EHRR 330). “Possessions” are not limited to physical goods: in Gasus Dosier-und Fordertechnik GmbH v The Netherlands (1995) 20 EHRR 403 it was considered immaterial that the property in issue was fully owned by the applicant, or whether it simply had a security right in it (retention of title). But to qualify under this Article the right or interest must have an economic value, or be of a pecuniary nature. In addition to property, possessions include:

1. Company shares: Bramelid & Malmstrom v Sweden, (1982) 29 DR 64.
2. Patents: Smith Kline and French Laboratories Ltd v The Netherlands (1990) 66 DR 70;
3. Goodwill in business: Van Marle & Ors v The Netherlands (1986) 8 EHRR 483;
4. Licence to serve alcoholic beverages: Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309;
5. Ownership of a debt (where it has crystallised): Agneesens v Belgium (1998) 58 DR 63;
6. An award, of court or arbitration, which is final and enforceable with no right of appeal on the merits: (1) Stran Greek Refineries (2) Stratis Andreadis v Greece (1994) 19 EHRR 293 and Pressos Compania Naviera SA & 25 Ors v Belgium (1997) 21 EHRR 301;
7. Interests in a pension scheme Wessels-Begervoet v The Netherlands (1986) (Admissibility Decision Application No. 00034462/97  October 10 2000

An additional gloss has been given to the meaning of “possessions” under this Article by the Court of Appeal in Wilson v First Country Trust [2001] 3 WLR 42 2000 – these include the rights of a leader to enforce a regulated loan agreement under the Consumer Credit Act 1974.

More recently, the Supreme Court has ruled that pension scheme regulations in Northern Ireland that required that unmarried co-habiting partners to be nominated in order to be eligible for a survivor’s pension, was interference with the appellant’s right under this provision. The requirement could not be “objectively justified” for the purposes of art 14. There was no similar nomination requirement for married or civil partner survivors (Re an application by Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8).

There is no possession in an item where the link between the applicant’s payment and the ultimate value of the thing is not established, so where an applicant has made contributions to a social security scheme but there is no link between the contributions and the ultimate share claimed by the applicant, this does not come within the scope of Protocol 1 Art.1 (G v Austria (1984) 38 DR 84); the same applies to contributions to pension schemes: (see X v Netherlands (1972) 38 CD 9.)

Expectation of an inheritance could not constitute a possession under Protocol 1 Art.1 : Marckx v Belgium (1979) 2 EHRR 330.

A mere expectation that rates of fees would not be reduced by the law does not constitute a property right: Federal Republic of Germany Application No.00008410/78, (1979) 18 DR 170. Here the applicants, who were notaries, challenged regulations which obliged them to reduce fees for certain public bodies such as universities. The European Commission of Human Rights held that the claim for fees would only be considered as possessions when they came into existence on grounds of services rendered and on the basis of existing regulations.

In Matthews v MoD [2002] 3 All ER the Court of Appeal accepted that a right of action in tort was a possession.

As with the other qualified rights, most of the disputes in Article 1 Protocol 1 claims turn on the test of proportionality since the right to enjoyment of property is subject to many provisos and exceptions “in the public interest”. As a result the case law on A1P1 is a rich source of analysis on this question: see for example the Court of Appeal’s informative ruling in Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 and Lord Laws LJ’s important dissent, discussed here.

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