According to the European Court of Human Rights, the Right to Concession Constitutes a “Possession” Within the Meaning of Article 1 of Protocol No 1 of the Convention for the Protection of Human Rights & Fundamental Freedoms

In its Judgement of 7 June 2012 on case Centro Europa 7 S.r.l. and Di Stefano against Italy, application no. 38433/09, the European Court of Human Rights reiterates that the concept of “possessions” in the first paragraph of Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1.

The Court specifies that Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable. Further, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition.

According to the Court, however, in certain circumstances, a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence. However, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts.

The Court further notes that the withdrawal of a licence to carry on business activities amounts to interference with the right to peaceful enjoyment of possessions as enshrined in Article 1 of Protocol No. 1 of the Convention. The Court thus considers that the interests associated with exploiting a concession constitute property interests attracting the protection of Article 1 of Protocol No. 1. It therefore finds that the applicant company’s legitimate expectation in the case under consideration, which was linked to property interests such as the operation of an analogue television network by virtue of a concession, had a sufficient basis to constitute a substantive interest and hence a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1.