International Journal of Tourism, Travel and Hospitality Law 2023

TOURISM ENTERPRISE AND CULTURAL HERITAGE PROTECTION In addition, pursuant to art. 6 of the TEU, art. Article 17 of the Charter of Fundamental Rights of the EU has the same value as the Treaties and this rule recognises that every person “has the right to own, use, dispose of and bequeath the property he has legally acquired. No one shall be deprived of his or her property except in the public interest, in the cases and in the manner provided for by law, and against payment of fair compensation in good time for the loss of the property. The use of goods may be regulated by law within the limits imposed by the general interest. Intellectual property is protected”. Thanks to this rule, Property is no longer treated with reference to economic relations27, but between freedoms, so that it is plausible “an obvious and immediate impact on the very possibility of imagining a social function”28. This, because the social function would be ontologically incompatible with the concept of freedom and fundamental right, consisting in a form of limitation of property. Recognizing, in fact, property as freedom, as well as as as a fundamental right, could lead to the inevitable exclusion of social function, since where property is conceived as one of the ways of being of freedom, “the functional constraint [...] would manifest all its incompatibility with the law”29. However, part of the doctrine objects that even in the German Constitution, property is contemplated among the Grundrechtes (fundamental rights) and, nevertheless, no one has ever doubted that it could play a precise social function and was conformable30. It follows that in Italy too property could be considered a fundamental right of an economic nature and, therefore, it cannot be said that its social function has waned, just because European law considers property a fundamental right. Moreover, both the CDFUE and the ECHR, while placing the property in a different position, with respect to our fundamental law, recognize that it is a right that, having recourse to certain conditions, can be compressed by the general interest. So much so that it is the very jurisprudence of the EDU Court that has allowed the Italian Constitutional Court to revise its position on expropriations. 27 Cf. S. RODOTÀ, The draft European Charter and art. 42 of the Constitution, in M. COMPORTI (edited by), Property in the European Charter of Fundamental Rights, Milan, 2005, p. 159 28 Cf. L. NIVARRA, European property between counter-reform and “passive revolution”, in C. SALVI (edited by), Civil law and European and Italian constitutional principles, Turin, 2012, p. 215. 29 Cf. S. RODOTÀ, Critical notes on property, in Rev. trim. dir. and proc. civ. 1960, II, p.1300 et seq. and S. RODOTÀ, item Property, in Novissimo digesto italiano, Torino, 1967, p. 134. 30 Cf. C. SALVI, Private property and Europe. Right to freedom or social function?, in Rev. crit. dir. priv. 2009, p. 425.