The Right to (Acquire?) Property: Social Security Rights before the ECtHR

Abstract

The right to property belongs to the classical human rights canon in the European and North American constitutional traditions. It is a commonplace that Art. 1 of Protocol 1 to the ECHR (P1-1) safeguards only “existing possessions” under domestic law, without creating new pecuniary interests or the right to acquire property. This paper looks at this axiom in light of the recent jurisprudence of the European Court of Human Rights in the area of social security claims, which may suggest exceptions from this general rule. It is examined whether an expansive interpretation of P1-1 has blurred the dichotomy along the lines of an “existing possession versus a claim to acquire” in disputes on access to benefits. It will be explored how the Court applies the concepts of legitimate expectations and the rule of law to affirm the application of P1-1, where the existence of a pecuniary interest according to domestic law is disputed. While the Court’s reasoning has been criticized as excessively stretching the scope of P1-1, this contribution proposes that the objective of the right to property may support the Court’s reasoning.