Comment on the Constitutional Court’s Judgement no. 299/2020, September 18 – Continuity or Change in the Constitutional Jurisprudence on Private Property?

Abstract

Judgment no. 299/2020 of the Constitutional Court declares the unconstitutionality with general binding force of the norm of article 1091.º, no. 8, of the Civil Code, added by Law no. 64/2018, of October 29, which confers a preemptive right in the sale of the entire building on the housing tenant of part of a property not constituted as horizontal property, in such a manner that the right to acquire by the tenant is restricted to an ideal share of that building, due to breach of n. 1 of article 62, in conjunction with paragraph 2 of article 18, of the Constitution. The present article analyzes the argument of the said judgment and maintains that it does not imply any change in the jurisprudence of the Constitutional Court on the fundamental right of property, but only systematizes such jurisprudence in a new light, proceeding to a rigorous separation between the delimitation of the content of the right, the identification of a restrictive measure, and the constitutional justification of the latter in light of the principle of proportionality.