LE “NUOVE PROPRIETÀ” E I “NUOVI BENI” IN UNA PROSPETTIVA COSTITUZIONALE

In recent decades, the proliferation of intangible properties caused by new technologies, along with the significant changes in the role of the State, nowadays regulator of benefits more than holder of property, have determined significant changes in the discipline of the law of property. These “changes”, for which the expression of “new properties” (nuove proprietà) and/or “new goods” (nuovi beni) has been coined, by now do not occupy the only ground of analysis of scholars of private law but also have became of “constitutional relevance” in the context of the debate on the fundamental rights which is developing around the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. Starting from these premises, the first part of the research tried to consider the theoretical eligibility of the new properties in our legal system, beginning from those described by Reich, and these are certainly the most distant from the legal tradition of civil law. Subsequently, the research attempted to embrace all the spectrum of expectations (aspettative), thought (pensiero), and rights (diritti), that “fill” the sphere of the immaterial (reference has been made to the contributions of Rodotà, Pugliatti, Zencovich, Messinetti, and Greco, to mention the main ones). Following, I proceeded to an empirical mapping of the category of the “choses in action” in our legal system, with the objective of giving act of which are, or may be, qualified as new properties, and what are, or may be, some of the problems related to their “uncertain” statute. In the second part, I tried first to verify the general scope of the current concept of property according to the Constitution, as may be obtained from our doctrine and constitutional jurisprudence, taking in particular reference the thought of Baldassarre, which could perhaps be considered the only scholar who treated in a recent period the theme. In the last part, with specific reference to the new properties (nuove proprietà and nuovi beni), moving in the frame of what is now a sort of “European statute of the law of property”, I tried to check which is the scope of the concept of property arising from the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights, in both cases in the interpretation of these rules and principles provided for by the courts of Luxembourg and Strasbourg, having care to underline which are the concrete operational rules for the access of these standards and principles in our legal system. In the conclusions, instead of making general or systematic comments in a matter on which the contribution of the doctrine is perhaps still exiguous, it has been deemed preferable to test the applicability of research through the analysis of a specific case, such as it could be submitted to a court of law.