Private property and market regulation in the draft legislation on the right to housing
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The article carries out some considerations on the measures that affect private property and market regulation, only insofar as they directly affect the rights of individuals, without analyzing the remaining contents of the draft. Thus, the article is divided into two parts. The first part succinctly sets out the constitutional framework of reference, pointing out that the constitutional guarantee of private property and freedom of enterprise have a common dimension, although there are differences between the two fundamental rights. Private property is dominated by the idea of its social function, and this function covers public action on limiting private property without considering these limitations as compulsory expropriations. The difference between limitations and expropriations is related to the respect of the “essential content” of the fundamental right, which is determined considering the principles of reasonableness, proportionality, and appropriateness. This approach can be similarly transferred to freedom of enterprise, and to one of its most relevant manifestations, freedom of contract. It should be highlighted that if public intervention is made through general regulatory instruments there is a risk of unconstitutionality if the measures are applied to all kinds of people without differentiating between persons. The second part of the article analyzes measures of the draft legislation only insofar as they affect individuals. There is ambiguity because these measures refer to future rules of indeterminate content. This lack of specificity is exacerbated by a high degree of technical and drafting deficiency. These circumstances do not allow a judgment on the constitutionality of many of the provisions of the draft legislation. There is only a certain degree of specificity regarding the limitation of the price of rent, which in principle is considered constitutional if the measure is proportionate, reasonable and adequate, but this judgment is doubtful given the almost absolute indiscrimination of the recipients of the measure. The draft legislation completely ignores compulsory expropriation. On the one hand, it takes for granted that all public intervention in private property or freedom of contract entails a mere limitation of the fundamental rights. On the other hand, the draft legislation does not use that tool, either as a direct instrument for housing policies or as a sanction for non-compliance with the duties imposed by the draft itself. Consequently, the draft legislation is a modest proposal, despite the rhetorical boasts.