Procedural Requirements for Administrative Limits to Property Rights

 
 
Oxford University Press
  • erschienen am 1. September 2022
  • |
  • 392 Seiten
 
E-Book | PDF mit Adobe-DRM | Systemvoraussetzungen
978-0-19-263766-6 (ISBN)
 
Through a comparative survey spanning twelve legal systems and a transnational regime, the fourth volume in this series aims to shed light on the core of administrative activity that exemplifies the 'negative State'. Within the vast field of adjudication, the book addresses one of the most traditional sets of procedures, namely, the exercise of public powers affecting property rights.Following the method adopted in the CoCEAL project, this volume takes the fundamentals of expropriation in a given legal order as its starting point and examines various cases. The main requirements for property rights deprivations and restrictions are presented through national reports and discussed through hypotheticals, while the comparative analysis focuses on procedural propriety and fairness. This book is divided into three parts. The first part introduces the project and the topic. Thesecond part covers the legal systems chosen for this study. The third goes on to present a synchronic comparison across systems, highlighting the relationship between shared and distinctive traits, with a view to the way supranational and international rules increasingly supplement municipal regimes.The concluding chapter discusses the current regime on public regulation of property in contemporary administrative systems.
  • Englisch
  • Oxford
  • |
  • Großbritannien
978-0-19-263766-6 (9780192637666)
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Martina Conticelli is Professor of Administrative Law at Tor Vergata University of Rome. She is a member of the European Group of Public Law (EGPL), the Research Network on EU Administrative Law (ReNEUAL), and the Transnational Administrative Law Network. She coordinated the Tor Vergata Unit within the CoCEAL ERC project, and has taken part in numerous Jean Monnet activities. She has been Jemolo Fellow at Nuffield College (Oxford) and visiting researcher/invited speaker in Canada, Finland, France, Greece, and Spain. Her recent research has focused on expropriation, regulatory takings, health care, and procedural requirements in national administrative procedures, as well as European and global ones. Thomas Perroud is Professor of Public Law at Panthéon-Assas University and Humboldt Fellow (Experienced Researcher). He was previously Professor at Aix-Marseille University, and Assistant Professor at Paris-Est University, and Lecturer at Sciences Po. He holds a Ph.D. in Public Law from the Sorbonne Law School and a Ph.D. in Law from Warwick University (the thesis was awarded three prizes). In 2013 he was Visiting Researcher at Yale Law School and Deputy Director of the Yale Comparative Administrative Law Initiative. His research interests are in the field of comparative administrative law specializing in regulation, policy-making, and administrative procedure.
  • Cover
  • Series
  • Procedural Requirements for Administrative Limits to Property Rights
  • Copyright
  • Contents
  • Detailed Table of Contents
  • List of Abbreviations
  • Table of Cases
  • Table of Legislation
  • Essential Provisions
  • List of Contributors
  • PART I INTRODUCTION: A COMMON CORE
  • 1. Property Rights and Administrative Limits: A Procedural Perspective
  • I. The object of this research in context
  • II. Property matters
  • III. Setting boundaries
  • IV. The concept of procedural fairness in protecting property rights
  • V. In search of the 'common core'
  • A. A 'common core' research
  • B. A 'factual' analysis
  • C. The legal systems selected for our comparison
  • D. The structure of this book
  • Part II THE LEGAL SYSTEMS SELECTED FOR COMPARISON: LAW, ADMINISTRATION, AND PROCEDURES
  • 2. Procedural Requirements for Administrative Limits to Property Rights in Belgium
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 3. Procedural Requirements for Administrative Limits to Property Rights in France
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 4. Procedural Requirements for Administrative Limits to Property Rights in Germany
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 5. Procedural Requirements for Administrative Limits to Property Rights in Italy
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 6. Procedural Requirements for Administrative Limits to Property Rights in the Netherlands
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 7. Procedural Requirements for Administrative Limits to Property Rights in Poland
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 8. Procedural Requirements for Administrative Limits to Property Rights in Portugal
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 9. Procedural Requirements for Administrative Limits to Property Rights in Spain
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 10. Procedural Requirements for Administrative Limits to Property Rights in Sweden
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 11. Procedural Requirements for Administrative Limits to Property Rights in Ukraine
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 12. Procedural Requirements for Administrative Limits to Property Rights in the United Kingdom
  • 13. Procedural Requirements for Administrative Limits to Property Rights in the United States of America
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal States)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • 14. Procedural Requirements for Administrative Limits to Property Rights in the International Law on Promotion and Protection of Foreign Investments
  • I. Is there any constitutional provision or convention concerning land expropriation in the traditional sense (ie the forced transfer of ownership ordered for reasons of general interest) in the cases provided for by the law, and with provisions for compe
  • II. Is there any constitutional provision or convention concerning limitations to property rights in the broad sense? If not, please elaborate.
  • III. How are competences regarding expropriation distributed among different levels of government (ie in regional, federal, or confederal states)?
  • IV. Please include a brief description of the procedure, listing the formal acts necessary for an expropriation. What is the relationship between urban planning procedures and expropriation? When is an environmental impact assessment needed?
  • V. What are the consequences of a court finding that an expropriation is unlawful on the grounds of substance and/?or of process? Is it merely annulled, or are there other consequences, for example the award of damages?
  • VI. Is there any difference between expropriation and nationalisation?
  • VII. Notes on the questionnaire
  • Part III CASES
  • 15. Cases
  • I. Questionnaire
  • A. Case 1: The requirement to state reasons in expropriations
  • B. Case 2: An expropriation without notice
  • C. Case 3: Participation and due process in urban planning
  • D. Case 4: Due process in urgent requisitions
  • E. Case 5: A constructive expropriation
  • F. Case 6: The public interest of a private hospital
  • G. Case 7: Local pressure against a nudist beach
  • H. Case 8: Cultural heritage
  • I. Case 9: Acoustic pollution: exceeding the sound limits
  • J. Case 10: A new urban planning act
  • K. Case 11: Regulatory taking
  • II. Case 1: The requirement to state reasons in expropriations
  • A. Belgium David Renders, Luca Ceci, Caroline Delforge, and Kevin Polet
  • B. France Emma Guernaoui
  • C. Germany Foroud Shirvani
  • D. Italy Silvia Mirate
  • E. The Netherlands Jacques Sluysmans and Nikky van Triet
  • F. Poland Inga Kawka and Lukasz Kozera
  • G. Portugal Rui Guerra da Fonseca
  • H. Spain Luis Arroyo Jiménez and Dolores Utrilla Fernández-?Bermejo
  • I. Sweden Patricia Jonason
  • J. Ukraine Halyna Dovhan
  • K. The United Kingdom Emma Waring
  • L. The United States Ilya Somin
  • M. International investment law Filippo Fontanelli
  • III. Case 2: An expropriation without notice
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • IV. Case 3: Participation and due process in urban planning
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • V. Case 4: Due process in urgent requisitions
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • VI. Case 5: A constructive expropriation
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • VII. Case 6: The public interest of a private hospital
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • VIII. Case 7: Local pressure against a nudist beach
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • IX. Case 8: Cultural heritage
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • X. Case 9: Acoustic pollution: exceeding the sound limits
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • XI. Case 10: A new urban planning act
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • XII. Case 11: Regulatory taking
  • A. Belgium
  • B. France
  • C. Germany
  • D. Italy
  • E. The Netherlands
  • F. Poland
  • G. Portugal
  • H. Spain
  • I. Sweden
  • J. Ukraine
  • K. The United Kingdom
  • L. The United States
  • M. International investment law
  • PART IV COMPARATIVE ANALYSIS
  • 16. Comparative Perspectives on Expropriation and Other Takings: England, France, Germany, and the United States
  • I. Introduction
  • II. The constitutional and statutory framework
  • III. Commonalities and differences among the countries under comparison
  • A. Commonalities
  • B. Differences
  • IV. Some cross-?cutting issues
  • A. Due process in various contexts
  • 1. Urban planning
  • 2. Urgent situations
  • B. Public utility and private facilities
  • C. Regulatory taking
  • V. Conclusion
  • 17. Public and Private Sovereign Powers in Liberal Models of Property Protection: Belgium, Sweden, and the Netherlands
  • I. Introduction
  • II. Shared background and its limits
  • III. Structural differences
  • IV. Direct expropriation: process and substance
  • A. Judicial stage
  • B. Fair administrative process
  • C. Outcome: full compensation
  • V. Property related rights and indirect expropriation
  • A. Cultural heritage
  • B. Urban planning
  • VI. Liberal protection and its administrative variations
  • 18. Procedural Safeguards of Property Rights in Southern Europe: Italy, Spain, and Portugal
  • I. Introduction
  • II. Constitutional framework
  • A. Expropriation as an instrument to restrict property rights
  • B. The social function of property
  • III. Safeguarding property rights through administrative procedure
  • A. A declaration of the general interest that justifies the expropriation is required in all three systems, with severe consequences in the event of failure to comply with this requirement
  • B. The requirement of a statement of the reasons for expropriation acts is to be found in all three systems, although the intensity of this requirement varies from one to another
  • C. The requirement to formally notify the essential expropriation acts is also to be found in all three systems and has similar consequences in the event of failure to notify
  • D. Procedural protection may be lawfully set aside only under very exceptional circumstances
  • IV. Safeguarding expropriated property rights beyond the expropriation procedure: the right of reversion
  • V. Conclusions
  • 19. The Value of Property in Central and Eastern Europe: Comparative Expropriation in Poland, Ukraine, and Hungary
  • I. Introduction and historical background
  • II. Comparison of constitutional provisions
  • III. The object of expropriation
  • IV. Subjects of expropriation
  • V. The content and framework of expropriation
  • A. The question of the legal bases
  • B. Administrative procedures
  • C. Legal remedies
  • VI. Conclusions
  • 20. Property Rights, Administrative Limits and Procedural Requirements in the EU, the ECHR, and the IIL
  • I. Preface and background remarks
  • II. Foundations
  • III. Theory and practice
  • IV. Convergence and divergences in practice
  • V. Property rights, revisited?
  • 21. Concluding Remarks on the Unity of the Liberal World as Regards State Regulation of Property
  • I. What's in a name? The notion of takings
  • A. Shared criteria
  • B. The variations
  • II. A man's property is his castle! Protections
  • A. The sources of protections: ownership democracy
  • B. Procedure: is there a global due process for takings?
  • C. Remedies: courts as ultimate guardians of property
  • III. Conclusions
  • Selected Bibliography
  • Index

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