7.

It remains for me to examine the most interesting point which arises in the context of an appraisal of the validity of the provisions in dispute. I refer to the question of the compatibility of those provisions with the fundamental principle of respect for private property, which is common to the legal systems of the Member States and enshrined in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Before embarking upon consideration of the substance of that question, I would like to recall and emphasize the fact that the protection of fundamental rights constitutes an integral part of the general legal principles, respect for which is guaranteed by the Court (see the judgments of 12 November 1969 in Case 26/69 Stauder [1969] ECR 419 and 17 December 1970 in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; in addition, see the judgments of 14 May 1974 in Case 4/73 Nold [1974] ECR 491; 28 October 1975 in Case 36/75 Rutili [1975] ECR 1219, and 15 June 1978 in Case 149/77 Defrenne [1978] ECR 1365). On the basis of that case-law, the Court of Justice has jurisdiction to ensure the protection of fundamental rights when measures of the Community authorities may impinge upon them; the Nold judgment established that in the performance of this task the Court is obliged to draw inspiration ‘from constitutional traditions common to the Member States’ and must take account of guidelines supplied by the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. However, it must also be said — still on the basis of the Nold judgment — that ‘it likewise seems legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched’. In accordance with these premises it is necessary to reject the idea that it is permissible to appeal to the highest national courts, rather than to this Court, in order to secure the protection of fundamental rights as against the Communities, in particular when infringements as a result of the legislative activity of the Communities are alleged. It is the exclusive task of the Community Court to guarantee such protection, within the scope of its jurisdiction: the uniform application of Community law and its primacy over the legal orders of the Member States must not be endangered by the intervention of national courts, when it is a question of ascertaining whether or not Community provisions are in conformity with the principles concerning human rights. As for the substance of the question, it is necessary to establish in what way and to what extent property rights are protected in the Community legal order. The points of reference for the solution to this problem are essentially the principles accepted in the laws of the Member States and the specific provision contained in the First Protocol to the European Convention on Human Rights. As for the Community Treaties, I am of the opinion that the rule expressed in Article 222 of the EEC Treaty, which provides that the Treaty ‘shall in no way prejudice the rules in Member States governing the system of property ownership’ makes it impossible to hold that in Community law private property is more clearly protected or on the contrary subject to a restrictive conception; the truth is that — apart from the limits expressly imposed by some provisions of the Treaties and particularly by the Treaty establishing the EAEC — the article cited confirms that it was not the intention of the Treaties to impose upon Member States or to introduce into the Community legal order any new conception of property or system of rules appertaining thereto. Having said that, an examination of the rules in force in the legal systems of the Member States (almost always at the level of constitutional law) reveals that, apart from the many differing ways in which they are formulated as regards language and scope, those rules render property rights subject to three fundamental types of provision: first, that which recognizes private property, guaranteeing it against every from of arbitrary deprivation (see for example Article 14 (1) of the Grundgesetz [Basic Law] of the Federal Republic of Germany, Article 42 (2) of the Italian Constitution, Article 2 of the French Declaration of the Rights of Man and the Citizen of 1789 and Article 43.1 of the Irish Constitution); secondly, that which admits of the possibility of expropriation in the public interest, in return for compensation (see for example the last paragraph of Article 14 of the Grundgesetz, Article 42 (3) of the Italian Constitution, Article 17 of the. French Declaration of the Rights of Man and the Citizen, Article 11 of the Belgian Constitution, Article 16 of the Luxembourg Constitution, Article 165 of the Netherlands Constitution and Article 73 of the Danish Constitution) and thirdly, that which leaves the limitations upon the use of property to be determined by the law (see for example Article 14 (1) of the Grundgesetz, Articles 42 (2) and 44 of the Italian Constitution, Article 43.2 of the Irish Constitution). A synthesis of these three fundamental types of provision is to be found in Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is worth citing in full: ‘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. 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 conclusion which may be drawn from this brief analysis is that the three rules enshrined in Article 1 of the First Additional Protocol to the said Convention, which reflect the dominant tendency of the legal systems of the Member States, must be considered to have been incorporated into the Community legal order. In fact that reflection is not faithful as regards one important point, namely the right to compensation of a person whose property is expropriated, given that such a right is not expressly laid down in Article 1 of the First Additional Protocol to the European Convention. The terms of that provision, which as we have seen refers to the conditions laid down by national laws and to the general principles of international law (traditionally applicable only for the benefit of aliens) may engender doubt as to whether, in order to be lawful under the European system for the protection of human rights, an expropriation must in every case be accompanied by the payment of compensation. The case-law of the European Commission of Human Rights records two contradictory postitions on this question: on the one hand, there is the express denial that it is invariably necessary to compensate nationals (see the Decision of 16 December 1965 in X v Federal Republic of Germany, Application No 1870/63), whilst, on the other hand, it has been stated that the wording ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions’ protects nationals and aliens in the same way, with the result that nationals too must be accorded the right to compensation (Report of 30 September 1975 on the Handyside case — Application No 5493/72 — paragraph 158 et seq.). The position adopted in the more recent case indicates a significant change in the case-law; in any event, at the Community level, the obligation to pay fair compensation to the expropriated individual should be recognized in accordance with the tendency widely shared by the legal orders of the Member States.