The Increase of Cultural Heritage Protection Impacts on Property Right: Belgian Case Law

Private ownership and cultural heritage protection are two interests in tension with one another. The traditional conception of property right is based on an absolute individual right to the peaceful enjoyment of possessions. However, interference in this right may restrict its exercise and impose charges on the owner, such as classification measures and conservation easements in name of the general interest of the community to protect cultural heritage. This paper formulates a hypothesis about an increased protection of cultural heritage as well as of private ownership in Belgian law. At the one hand, Belgium, inspired by international and European law, has adopted more and broader legislation for the safeguard of cultural heritage. The famous Palais Stoclet case has clearly confirmed that Belgian jurisprudence also widely recognise the importance of protecting cultural heritage. On the other hand, Belgian judges, who traditionally don’t recognise any compensation right when the protective measure only restricts the ownership without expropriating the owner, gradually appear to undertake a more thorough analysis of the fair balance between the conflicting interests, notably in favour of the owner. Under the impulse of Strasbourg jurisprudence, the Constitutional Court recently annulled a classification decree that failed to provide any compensation right thereby imposing an ‘excessive burden’ on the owner. These recent developments indicate that the apparent trend towards increased cultural heritage protection, requiring more sacrifices from the individual owner, calls for a counterbalancing exercise based on a kind of proportionality test. The question is whether any model can be distinguished that is suitable to cultural heritage protection in all circumstances now that specific cases have demonstrated that the traditional (ownership vs protection) models have shown some of their limits