Constitutionally Permissible Restrictions on the Right of Ownership and Expropriation: Demarcation Criteria and the Limits of Public Authority Interference

Abstract

The article examines the constitutional and convention-based limits of interference with the right of ownership and the criteria for distinguishing restrictions on ownership from expropriation. The analysis refers to Article 21(2), Article 31(3) and Article 64(3) of the Constitution of the Republic of Poland, together with Article 1 of Protocol No. 1 to the ECHR. The central research problem involves determining the significance of the legal structure of an interference and its effects on the owner for its classification. The article argues that classification should precede the assessment of constitutional permissibility, since a disproportionate restriction or an interference affecting the essence of ownership does not automatically become expropriation. The starting point is the legal effect of the measure, especially deprivation, extinction or compulsory transfer of the right, while formal legal criteria must be supplemented by an assessment of the powers retained by the owner, the intensity and duration of the interference, and the possibility of continued rational use of the property. Spatial planning is used to test these criteria because far-reaching restrictions may occur despite the formal retention of ownership title. The concepts of de facto, substantive and quasi-expropriation are treated as analytical categories rather than independent grounds for classification. The case law of the European Court of Human Rights shows that the fair balance standard concerns the relationship between the general interest and the burden imposed on the individual and complements constitutional demarcation criteria. The de lege ferenda conclusions support clarifying necessity without creating a statutory category of quasi-expropriation.