Fishing in a coastal basin by a fishing company that had rights in rem. Arbitrary governmental interference and eviction without payment of damages violated the right to property.

JUDGMENT

Zappa S.A.S. v. Italy  04.07.2019 (no. 43842/11)

see here 

SUMMARY

Fish farming, property rights,  state intervention.

The applicant company had secured its property rights in “fishing valleys” in the province of Venice lagoon for a number of years when, after about 18 years, it received a state order to vacate those water bodies on the ground that they are state property.

The Court held that there was a violation of Article 1 of the Additional Protocol because the applicant’s title to property gave it legal protection, the transfer of its property to the public would entail costs for it,  because it had caused the applicant to lose the “tools of its trade” since the valley was the base for its business activity and although  there was a need to protect the ecosystem, the Court held that the breach of the applicant’s right to the peaceful enjoyment of its assets was manifestly disproportionate to the legitimate pursued aim.

PROVISION 

Article  1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Zappa S.a.s., is a company with its registered office in Padua (Italy).
T

he case concerned the return to State property of a coastal fishing basin known as “Valle Zappa” in
the Venetian Lagoon.

In July 1972 the applicant company became the owner of the Valle Zappa, one of many “fishing
valleys” situated in a lagoon in the province of Venice. Made up of small islands and bodies of water
which are separated from the sea by dams, these basins were given over to fisheries. In 1989, 1991
and 1994 the companies operating in these fishing basins were instructed by the Padua financial
authorities to vacate the bodies of water in question, on the grounds that they were State property.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights, the applicant company complained that it had lost title to its property.

THE DECISION OF THE COURT

The Court notes the admissibility of the action which is not contested by the Government.

The parties’ arguments differ only as to the proportionality of the contested intervention. While the Government submits that the national authorities have not in any way violated the applicant’s rights, the applicant seeks recognition of the unlawful deprivation of property rights.

Concerning the general principles of its case-law, its reasoning and its conclusion set out in paragraphs 62 to 78 of the judgment in Valle Pierimpiè Società Agricola SpA (indicative of the reasoning of the judgment):

“The Court observes that it can be considered to be ‘occupied’ within the meaning of Article 1 of the First Protocol to the Convention, since the factual and legal situation existing prior to the withdrawal of the applicant’s title deprived it of a legal guarantee which was based on property rights, and was sufficient to constitute a substantive interest protected by the Convention.

The Court held that the intervention at issue had a sufficient legal basis in Italian law and had pursued a legitimate aim in the general interest of preserving the lagoon’s environment and ecosystem and ensuring that the latter was in fact intended for public use.

As to whether the interference was proportionate to the aim pursued, the Court examined whether a fair balance had been struck between the requirements of the general interest of the community and those of the protection of fundamental human rights.

In that regard, it points out that, in the present case, the applicant was not offered compensation for the deprivation of his property and, on the contrary, was required to pay compensation for the unlawful possession of Valle Perimpiè. Although the compensation had to be determined in separate civil proceedings, there was every indication that it would be very important.

Moreover, the case file did not show that the authorities had taken into account the fact that the transfer of the land to the public sector had caused the applicant to lose the “tools of commerce”, since the plot was the basis for her business, the which he had exercised legally.

Finally, although the applicant might be able to relocate her business, this would probably be difficult and would entail significant costs for her. The authorities have taken no measures to reduce the financial impact of the intervention in question.

Consequently, the Court held that the applicant’s right to peaceful enjoyment of her assets was manifestly disproportionate to the legitimate aim pursued.

The State had not struck a fair balance between the public and private interests at stake and the applicant had been charged with an excessive and unenforceable burden, thus infringing Article 1 of the First Protocol. ”

and in view of the similarity of events in the two cases, the Court considers that there has also been a violation of Article 1 of the First Protocol in the present case.

The Court unanimously finds that there has been a violation of Article 1 of the First Protocol and decides, by 4 votes to 3, that the  State must pay the applicant, within three months of the date on which the judgment becomes final, the amount of 5000 EUR for non-material damage(echrcaselaw.com).

 


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