Limitations on the right to property;
Ablation of the right to property;
Right to compensation.
RULING No. 480/14
25 of June of 2014
The Constitutional Court found that a norm under which military easements and other restrictions imposed in the military interest do not give rise to a right to compensation is not unconstitutional. The easement in the present case does not imply the loss of legal suitability for construction purposes, but rather a mere subjection of work and other activities – including erecting constructions of any kind – to the need for a permit from the competent military authority.
We are thus not in a situation in which a concrete legal position guaranteed by the Constitution is taken away, but instead a case of public-law norms which, for constitutional reasons (as is also true of norms included in the law on urbanism and spatial planning), impose general limitations on the jus aedificandi – limitations whose definition does indeed fall within the scope of the order to regulate which the Constitution gives to the ordinary legislator, whereby the latter must shape the rules governing property in accordance with values it defines itself. In this particular case, values embodied in the requirements imposed by the need to defend the nation explain why, for reasons linked to the security of persons and property, it is necessary to prevent the construction of buildings within given perimeters of areas adjacent to military facilities.
The Public Prosecutors’ Office was required by law to bring this concrete review case, because the court a quo refused to apply a norm on the grounds that it was unconstitutional.
Owners of land encompassed by military easements created in 1949 applied to the Ministry of Defence under the 1982 National Defence and Armed Forces Law for a military permit to divide the land into plots on which to build detached houses. This application was denied, and an appeal to the Supreme Administrative Court against the latter’s decision was unsuccessful.
The owners considered this outcome equivalent to an expropriation, and brought administrative actions against the Portuguese State in which they asked the court to order the state to pay them just compensation for the losses derived from the military easement.
Sitting at first instance, the Funchal Administrative and Fiscal Court ruled in favour of the claimants. The Public Prosecutors’ Office appealed this decision to the Central Administrative Court – South (TCA-S). The TCA-S found that the laws governing the temporal application of the law meant that the more recent law on expropriation and the compensation for it was not applicable in this case because it had not existed when the easement was created. It therefore revoked the initial sentence and absolved the Portuguese State from the claim.
This TCA-S decision was annulled by the Supreme Administrative Court, which agreed with the Central Court on the rules governing the application of laws in time, but said that the TCA-S had failed to consider the possibility of the supervening unconstitutionality of the applicable easement regime – i.e. the question of the extent to which legal norms that predated the 1976 Constitution of the Portuguese Republic (CRP) and did not provide for any compensation for administrative easements imposed directly by law subsisted after the CRP entered into force.
In its new ruling the TCA-S again considered that the later legislation was not applicable to this situation because of the rules on the succession of laws in time, but in the end applied it anyway on the grounds that the earlier easement regime conflicted with the principles of equality, proportionality and just compensation enshrined in the 1976 Constitution. It was against this TCA-S decision that the Public Prosecutors’ Office appealed to the Constitutional Court.
The norm whose constitutionality was under review is contained in a 1955 Law (the regime governing areas adjacent to military organisations or facilities or others of value to national defence). This norm says that military easements and other restrictions imposed on the right to property in the military interest do not entitle the affected party to compensation. Under the principle that ordinary law which predated the entry into effect of the 1976 Constitution is maintained unless it is contrary to that Constitution or the principles enshrined therein, this norm is still in effect today.
The TCA-S found that this norm suffered from supervening invalidity, because it conflicted with the principle of equality and the right to just compensation in cases involving expropriation in the public interest, both of which are enshrined in the Constitution.
This interpretation was underlain by acceptance of a principle under which the Constitution is said to prohibit the ordinary legislator from excluding the possibility of compensation in such a situation, inasmuch as a military easement implies an ablating effect equivalent to that of expropriation, and the CRP lays down that “…expropriations in the public interest may only be undertaken … upon payment of just compensation”. The military easement is a form of administrative easement. The latter are not constituted by a legal act, but result directly from the law. Having said this, there are cases (e.g. military easements) in which there must be a legal act that defines the area actually encompassed by the easement.
Administrative easements are also characterised by the fact that they only give rise to an entitlement to compensation if the law that creates them expressly says so.
The question of whether this characteristic is unconstitutional had already come before the Constitutional Court in the past. Under the 1933 Constitution, the exclusion by law of compensation for administrative easements did not present a constitutional-law problem. In a legal system based on the primacy of the ordinary law and not of the constitution, like the 1933 one, the ordinary legislator has the last word on the question of the circumstances in which asset-related sacrifices imposed on private entities in the name of the pursuit of the public interest should be compensated. However, in a legal system based on the primacy of the Constitution, like the current Portuguese one, if the ordinary law says that an easement does not give rise to any compensation, the law can be questioned on constitutional grounds. One can thus see why the central issue posed in the present case is far from new to the Constitutional Court.
In its case law the Court has never said that it would always be unconstitutional for a legal norm to fail to provide for any compensation for the imposition of private asset-related sacrifices analogous to those involved in the present case.
The question of whether or not an administrative easement that is directly derived from the law entitles the affected party to compensation must be preceded by another question: whether the law which imposes the easement is subsumed into the constitutional norm that establishes the right to compensation in cases of requisition and expropriation in the public interest on the one hand, or into the constitutional norm that guarantees the right to private property as laid down in the Constitution on the other. The Constitution requires the ordinary legislator to regulate the right to property; the ordinary legislator has the competence to define the limits and content of that right within the legal system.
Whether or not an administrative easement that is directly derived from the law entitles the affected party to compensation depends on whether that party suffers a serious sacrifice which merits reparation, or whether the easement merely constitutes a particular way of shaping the rules governing property by generically delimiting its content and limits.
The concept of military easement can be questioned on constitutional-law grounds, but the award of compensation is not a condition for the easement to be constitutionally lawful. Such a condition would only exist if the law in question could be seen, not as a law which shapes property and ownership, but rather as a law that deprives an owner of property by bringing about a serious sacrifice whose value is the same as that of requisition or expropriation in the public interest, which the Constitution says must be the object of just compensation.
Under the Law that contains the norm before the Court, the purposes that justify the constitution of military easements and other restrictions on the right to property in the military interest are the need to: guarantee the security of military organisations or facilities or others of value to national defence; guarantee the security of persons and property in the areas adjacent to such organisations or facilities; enable the armed forces to carry out their assigned missions; and maintain the general appearance of given areas that are of particular interest to the defence of Portuguese territory and thereby attempt to conceal any military organisations, facilities or equipment in those areas.
With regard to the legal regime, it is also important to note that military easements are divided into general easements and private easements. The former comprise prohibitions on carrying out certain general types of work and activity – namely construction of any kind – without the permission of the competent military authority. Private easements comprise prohibitions on engaging in types of work and activity that are specified when the easement is created, unless they are permitted to do so by the competent military authority.
The easement in the present case was of the private type, and the legal criteria for granting permits in relation to the area covered by it are those needed to ensure that its specific purposes are guaranteed. When it established the rules for the creation of of this military easement, the legislator fulfilled the constitutional requirement to determine the content of and limits on the owners’ rights to use the property. The limitation this regime places on the private use of the property is one that affects the owners’ rights and duties in general and abstract terms. In the light of the obligations to which the Constitution subjects the state in the national defence field, the legislator delimited the owners’ or users’ rights in relation to the property, excluding certain options that would otherwise be available to private users, because of the need to pursue the values linked to the defence of the nation.
One Justice dissented from the Ruling. She took the view that the norm is unconstitutional because it violates the right to property, inasmuch as it absolutely excludes the duty to pay compensation in cases in which military easements or other restrictions are imposed in the military interest, even when the effect of the ensuing diminution of the right to property is equivalent to an expropriation.
Rulings nos. 262/93 (30-03-1993); 594/93 (28-10-1993); 329/94 (13-04-1994); 405/94 (17-05-1994); 72/95 (21-02-1995); 112/95 (23-02-1995); 142/95 (15-03-1995); 154/95 (15-03-1995); 230/95 (16-05-1995); 588/95 (07-11-1995); 665/95 (22-11-1995); 147/96 (07-02-1996); 329/99 (02-06-1999); 544/01 (05-12-2001); and 347/03 (08-07-2003).