Order TMA / 336/2020 and private property at the time of COVID-19: (brief) comparative reflections between Spanish and Italian (and supranational) legal systems.

Abstract

This short essay is inspired by recent measures taken during the emergency to deal with the exceptional COVID-19 pandemic situation. It is interesting to note that these measures interest one of the pillars on which the construction of our market system is based, which is private property, from the point of view of two of the European legal systems that have suffered the most from the pandemic, Italy and Spain. In the latter, the recent Orden TMA / 336/2020, was issued by the Spanish government on April 9 in order to prepare, among other things, a program of aid for victims of gender-based violence, for people evicted from their habitual residence, for the homeless and for particularly vulnerable people. Article. 4, paragraph 3 of this provision immediately raised (unnecessary) controversy, also from the government opposition, due to, it is believed, an erroneous and superficial reading. After briefly examining the aforementioned Orden and its art. 4, paragraph 3, an attempt will be made to offer a comparative reconstruction of the evolution of property law in the Italian and Spanish systems, by analyzing the social function contained in the constitutional texts of the two countries. The aim is to demonstrate how the government, in compliance with the constitutional legitimacy, and in particular the general interest, could well have had the possibility of expropriating properties belonging to private individuals. In the Spanish system, in fact, as well as in the Italian one, there are special laws that largely regulate these cases.