Stc 371987

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By order of October 3, 1984, the Second Section of the Plenary of this Court agreed to admit the appeal of unconstitutionality and, in accordance with the provisions of art. 34 of the LOTC, to transfer the claim and the documents presented to the Congress of Deputies, the Senate, the Government, the Parliament and the Governing Council of the Regional Government of Andalusia and the Government, so that, within a period of fifteen days, they could appear in the proceedings and make allegations and, likewise, to publish the formalization of the appeal in the «Official State Gazette» and in the «Official Gazette of Andalusia», for general knowledge.

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1. By letter dated September 27, 1984, Mr. Luis Fernández Fernández-Madrid, Lawyer and Senator, on his own behalf and on behalf of 53 other Senators, filed an appeal of unconstitutionality against certain articles, which are specified in the supplication, of Law 8/1984, of July 3, 1984, on Agrarian Reform, approved by the Parliament of the Autonomous Community of Andalusia, in accordance with the allegations which, respecting the literal terms in which they were formulated, are summarized below:

Article 28 also regulates an expropriatory matter, without complying with the terms of articles 150 of the Agrarian Reform and Development Law and 7 and 9 of Law 34/1979, and is therefore also unconstitutional. The same consideration can be made with respect to article 42.4 of the appealed Law.

b) Certain precepts of the contested Law infringe art. 149.1.13 of the Constitution. This is the case with article 4, which establishes a regulation clearly different from that contained in articles 5.3 and 6.4 of the Law on Manifestly Improvable Estates, and more unfavorable for the non-user owner of the land, even though such precepts of the State Law must be considered basic from the point of view of the general economic action of the State. Furthermore, the aforementioned art. 4 of the Autonomous Community Law is also contrary to the provisions of art. 149.1.18 of the Constitution.

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Thus, the Constitutional Court assumes a deferential position with the legislator that rules out the application of the principle of proportionality in the full sense -with its three steps of necessity, appropriateness and proportionality in the strict sense-, without this implying that the right to property tolerates measures that, in regulating the price of rent, deny the «economic utility of property». In fact, the ECtHR itself, in more recent judgments referring particularly to limitations on rental rents that the TC should consult, has even considered the right to property enshrined in Art. 1 of Protocol No. 1 to be violated: the judgment of January 28, 2014, handed down in the case of Bittó et al. v. Slovakia (LA LEY 3743/2014), gives an account of several precedent cases to conclude that also in the case it resolves the right to property would have been infringed by rent control measures that would entail a «disproportionate and excessive» burden.

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This paper addresses the study of the constitutionality, from a competence perspective, of the regulatory measures adopted by the autonomous communities to give effect to the right to housing in compliance with the mandate contained in Article 47 of the Constitution. This study has required a critical assessment of the recent pronouncements made by the Constitutional Court on the incidence of certain state competences of a transversal nature on a matter, housing, reserved by the respective statutes of autonomy to the exclusive competence of the autonomous communities.

This study approaches the issue of the constitutionality, from a jurisdictional perspective, of the normative measures adopted by Autonomous Communities to enforce the right to housing in compliance with article 47 of the Constitution. This study has required the critical appraisal of the recent pronouncements made by the Constitutional Court on the incidence of certain State competences of transversal nature on housing, an area which had been reserved by the Autonomy Statutes as exclusive competence of Autonomous Communities.