European and National Property Law

european and national property law: osmosis or growing antagonism?

cal to be workable in practice. The above analysis shows that civil and common law, at least at the level of principles, show more common ground than might be thought at first sight.

(b) Ground rules

Once it has been established that a right can be fitted into the numerus clausus of property rights and is transparent enough towards third parties for it to be justified that these third parties are nolens volens bound by it, the ground rules of property law apply. These ground rules concern the further consequences of the conclusion that the right in question is a property right and focus on how property rights relate among themselves. In Europe, these ground rules are the following: the nemo dat (or nemo plus) rule (i), the prior tempore rule (ii), limited rights have priority over fuller rights (iii), protection rules such as the right to (re)claim the object of the property right (iv).

(i)According to the nemo dat rule, one cannot give away more than one has. A transfer of the right of ownership, to give an example, is only effective if the transferor has the power to dispose, because he or she is the owner. This is a highly logical ground rule. It would be unacceptable if one were able to alienate the property rights of others, which would violate the absolute nature of such a property right. Of course, the nemo dat rule is counterbalanced by rules on third party protection. A third party in good faith, who paid for the right, is frequently protected against the original owner, who claims his right of ownership. A major reason for such an exception can be that in day-to-day business a buyer should be allowed to rely, if justified, on the outward appearance that a seller is also the owner, to safeguard ordinary commercial dealings. If the original owner could always reclaim the right of ownership, this could jeopardize commerce and would affect various third parties in good faith.

(ii)If various persons claim property rights with regard to an object, the oldest property right has priority over a younger property right: prior tempore, potior iure. This ground rule is connected, first of all, with the absolute nature of the pre-existing property right. A property right can only be impaired by a new property right if the holder of the existing property right is a party to the creation of the new property right. If not, the absolute nature of the pre-existing property right protects the holder of such a property right against later property rights. This explains, for instance, why a mortgage which was created after another mortgage had already been created, ranks second and its holder will only be entitled to the proceeds of any public auction after the first mortgagee has been fully paid.

(iii)Nevertheless, if a new property right has been created with the consent of the holder of the first property right, such a second right will limit the first right. In such a case the first right holder (sometimes in civil law terminology called the holder of the “mother right”) then must accept that the holder of the second property right has a stronger position and can enforce its right (the

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“daughter right”) against the mother right, although the “daughter right” is younger than the “mother right”. For that reason, a right of mortgage is stronger than the right of ownership which is burdened by the right of mortgage.

(iv) Finally, the fourth ground rule is that, once a property right has been accepted as such it is given special protection. This could be with a special remedy, such as revindication (the owner can claim the object of the right of ownership from any person who has such object under his control), or with the help of claims based upon tort. It could be contended that some circularity of reasoning may be detected here, because it could be argued that whenever a

right is given special protection through for instance a revindication claim, such a right must be a property right. In my view this is incorrect. If a special claim is given to a right holder or if such right holder is given a protected status in insolvency proceedings, allowing him or her to separate the object of the right from the insolvent estate, this means that it must have been decided previously that the right to be protected is a property right.

6European and national property law: osmosis or growing antagonism?

It should not be forgotten that the European Union and the European Community were created with a particular aim: the establishment of a common and internal market. The various institutions were, originally, set up with that particular aim in mind. To establish and preserve this common and internal market the European treaties provide a framework for economic activities: the European economic constitution. An essential part of this economic constitution is freedom of ownership. Freedom of ownership should be interpreted broadly and be seen as freedom of property rights, especially in the light of the case law developed by the European Court of Human Rights in Strasbourg.

The protection of ownership in the European economic constitution does not mean that rules of property law are immune to harmonisation, if such rules create an obstacle to the establishment of the common and internal market. In order to find out which areas of property law should be harmonised and what would be the best way to proceed two approaches have been examined: the top-down approach and the bottom-up approach. I hope to have shown that the bottom-up approach should precede the top-down approach.

A bottom-up approach makes it possible to discern what the various property law systems in Europe have in common. These common features are, as we have seen, of a fairly abstract nature and can be divided into leading principles, ground rules and technical rules. Underlying these principles and rules are policy choices, such as the protection of commerce above protection of the original owner. The diverging technical rules are the greatest difficulty here, as due to their technical complexity they sometimes make it very hard to understand

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what is happening in a particular legal system “under the surface”. It is this last approach that is vital to tracking the common features. A major problem for such an in-depth analysis is the desire of property lawyers to adhere to chosen definitions to such a degree that they get trapped in their own legal constructions and need a more metajuridical view to escape from that trap. Historicalcomparative legal analysis offers such a metajuridical view. Essentially, property law is about rights that people claim with regard to objects. These objects can be things (Sachen), but also personal rights or ideas. The most extensive right a person can claim is “ownership” or “full entitlement”. What constitutes “ownership” or “full entitlement” is a purely dogmatic question, based upon an a priori chosen definition. If the definition is limited to corporeal things (as in Germany and the Netherlands) you cannot “own” rights, but rights “belong” to you. Does it really matter? You can transfer rights, pledge them, create a right of usufruct on these rights. To me the whole debate on whether rights can be “owned” is a trap, created by pandectist legal thinking. We are the prisoners of definitions we have formulated ourselves. Some legal realism might be helpful here and to me legal realism in this area of the law means that what counts is the content of your right: if the content of “owning” or “belonging” is the same with regard to things and rights (and in my view it is: transferability, creation of a security right, usufruct), why make a – wholly unnecessary – distinction? Is not this what Ockham’s razor – to put it briefly: that one should select the least complicated theory that presents an explanation – is all about? If European property law is founded upon the aforementioned common features (leading principles and ground rules), thus creating awareness of the various underlying common thought patterns, the result will be that European property law is not perceived as a corpus alienum, but as law that can be received and accepted as a further development of the existing national property law. The result will then be a growing osmosis between national and European property law.

However, a top-down approach, not based upon thorough research of the national property law traditions in the European Union, is bound to lead to growing antagonism between national and European property law. If the European rules are too much common law based, frictions with civil law systems will occur and vice versa. If the rules are too much the result of lobbying by a particular interest group different interest groups at a national level may consider these European measures as an unacceptable interference with national property law. During my work as an advisor in Central and Eastern Europe I once heard a representative from the banking industry say that if the national parliament in a particular country would not legislate as the banking industry wanted they would lobby for a solution at the European level to bypass that national parliament. It will not surprise any of you that, after such a threat, not only national politicians will start to revolt against Europe, but also other national interest groups as well as national lawyers working in this area. This is the top-down approach, which creates antagonism.

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To me, therefore, the answer to the question what can be observed with regard to European and national property law – osmosis or growing antagonism

–is that both can be seen. To promote osmosis and avoid growing antagonism it is submitted that a combined bottom-up / top-down approach will be a conditio sine qua non. Based upon a thorough analysis of the national legal systems, a European model could be developed that should have a non-binding nature and could act as an extra jurisdiction next to the legal systems of the Member States. The European model could then prove itself in competition with the existing national law.46 In this way, it will become clear “bottom-up” how far – in the famous words of the late Lord Denning, M.R. in the case of Bulmer v Bollinger

–the “incoming tide” of European law will come.47

The expression “incoming tide” makes me think of the famous book Der Schimmelreiter by the well-known author (and lawyer!) Theodor Storm, published in May 1888 shortly before his death. One of the leading themes in the book is the immense fear of rising water and the urge to protect oneself against this by building and maintaining dykes. At some moment, the main character of the book, the dykemaster (Deichgraf ) Hauke Haien, rides on his

horse with his little girl along the dykes and the following conversation ensues:48

“Es war Hochflut; als sie auf den Deich hinaufkamen, schlug der Widerschein der Sonne von dem weiten Wasser ihr in die Augen, ein Wirbelwind trieb die Wellen strudelnd in die Höhe, und neue kamen heran und schlugen klatschend gegen den Strand; da klammerte sie ihre Händchen angstvoll um die Faust ihres Vaters; die den Zügel führte, dass der Schimmel mit einem Satz zur Seite fuhr. Die blassblauen Augen sahen in wirrem Schreck zu Hauke auf: ‘Das Wasser, Vater! das Wasser!’ rief sie. Aber er löste sich sanft und sagte: ‘Still, Kind, du bist bei deinem Vater; das Wasser tut dir nichts!’”

The rising water is for the child what to most national property lawyers is the incoming tide of European law. It creates fear and is sometimes even being denied. The dykemaster is the European private lawyer, who tries to analyse where the water should be free to go and where it should be stopped by building a solid dyke. A challenging task!

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Notes

The hyperlinks mentioned in the notes have also been reproduced on the website of Leuven CCLE in order to allow fast navigation (www.ccle.eu). All URLs have been verified in November 2006.

1Cf. J.M. Smits, “European private law: A plea for a spontaneous legal order”, in: D.M. Curtin (et al.),

European Integration and Law. Four contributions on the interplay between European integration and European and national law to celebrate the 25th anniversary of Maastricht University’s Faculty of Law

(Antwerp/Oxford: Intersentia, 2006) p. 55 ff., p. 57.

2For the term “common law” see: H.P. Glenn, On Common Laws (Oxford: Oxford University Press, 2004).

3Cf. P. Badura, Wirtschaftsverfassung und Wirtschaftsverwaltung. Ein exemplarischer Leitfaden (Tübingen: Mohr Siebeck, 2005) p. 5 ff.

4Idem, p. 9.

5Idem, p. 10.

6Article III-145 Treaty establishing a Constitution for Europe (hereinafter: Constitutional Treaty). As is well known, this treaty has not entered into force.

7See: C.B. Schutte, The European fundamental right of property: Article 1 of Protocol no. 1 to the European convention on human rights: its origins, its working and its impact on national legal orders (Deventer: Kluwer, 2004); T. Allen, The right to property in Commonwealth constitutions (Cambridge: Cambridge University Press, 2000) p. 119 ff.

8See for German law: Article 14 of the German Constitution, and P. Badura (cf. supra, note 3) p. 29 ff., especially p. 31.

9Article II-77 Constitutional Treaty reads as follows: “(1.) Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law,

subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest. (2.) Intellectual property shall be protected.”

10See: W. Rank, “Harmonisation of national security rights”, in: U. Drobnig, H.J. Snijders, E.-J. Zippro,

Divergences of property law: an obstacle to the internal market? (Munich: Sellier, 2006) p. 201 ff.

11Cf. P. von Wilmowsky, Europäisches Kreditsicherungsrecht. Sachenrecht und Insolvenzrecht unter dem EG-Vertrag (Tübingen: Mohr/Siebeck, 1996) p. 32 ff.; J.Th. Füller, Eigenständiges Sachenrecht? (Tübingen: Mohr/Siebeck, 2006) p. 3 ff. See: ECJ 26 June 1997, Case C-368/95 Vereinigte Familiapress Zeitungsverlagsund vertriebs GmbH v Heinrich Bauer Verlag, available at: http://www.curia.eu. In this case the Court ruled: “7. The Court has consistently held that any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitutes a measure having an effect equivalent to a quantitative restriction (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).

8. It should also be borne in mind that, in accordance with the case-law beginning with Cassis de Dijon (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649), in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured

and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30, even if those rules apply without distinction to all products,

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unless their application can be justified by a public-interest objective taking precedence over the free movement of goods (Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 15).

9. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (Keck and Mithouard, paragraph 16).”

In the light of these considerations it can be argued that legal rules, such as property rights, are not by itself seen as “products” to which Article 28 EC applies. A different view would have an enormous impact on the national rules of private international law. It would mean that, to give but one example, Member States would have to accept any foreign security interest, if such interest had validly come into existence under the law of another Member State. Cf. J.Th. Füller (cf. supra, footnote 11) p. 4.

It could, nevertheless, be argued that the series of ECJ cases on recognition of foreign companies as a consequence of the freedom of establishment might be a counterargument against the above

interpretation of the Familiapress case. In this line of cases no longer the acceptance of “products” is the heart of the matter, but the acceptance of legal persons, in other words: a construction created by law. Within the framework of this lecture I do not have the time to analyse this point further. The cases are: ECJ 27 September 1988, Case 81/87 The Queen v H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc.; ECJ 9 March 1999, Case C-212/97 Centros Ltd v Erhvervsog Selskabsstyrelsen; ECJ 5 November 2002, Case C-208/00 Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC); ECJ 30 September 2003, Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd.

12ECJ 16 March 1999, Case C-222/97 Manfred Trummer v Peter Mayer.

13In the Court’s own words: “26. The effect of national rules such as those at issue in the main proceedings is to weaken the link between the debt to be secured, payable in the currency of another Member State, and the mortgage, whose value may, as a result of subsequent currency exchange fluctuations, come to be lower than that of the debt to be secured. This can only reduce the effectiveness of such a security, and thus its attractiveness. Consequently, those rules are liable to dissuade the parties concerned from denominating a debt in the currency of another Member State, and may thus deprive them of a right which constitutes a component element of the free movement of capital and payments (see, in relation to Article 106(1) of the EEC Treaty, Joined Cases 286/82 and 26/83 Luisi

and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 28, and Case 308/86 Lambert [1988] ECR 4369, paragraph 16).

27. Furthermore, the rules at issue may well cause the contracting parties to incur additional costs, by requiring them, purely for the purposes of registering the mortgage, to value the debt in the national currency and, as the case may be, formally to record that currency conversion.

28. In those circumstances, an obligation to have recourse to the national currency for the purposes of creating a mortgage must be regarded, in principle, as a restriction on the movement of capital within the meaning of Article 73b of the Treaty.

29. The Finnish Government submits, however, that the free movement of capital is not an absolute principle and that the national rules at issue in the main proceedings are designed to ensure the foreseeability and transparency of the mortgage system, which constitutes an overriding factor serving the public interest, and is such as to justify the rules in question.

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30. It should be noted that a Member State is entitled to take the necessary measures to ensure that the mortgage system clearly and transparently prescribes the respective rights of mortgagees inter se, as well as the rights of mortgagees as a whole vis-à-vis other creditors. Since the mortgage system is governed by the law of the State in which the mortgaged property is located, it is the law of that State which determines the means by which the attainment of that objective is to be ensured.

31. Neither the Austrian Government nor the parties to the main proceedings have submitted observations to the Court. But even assuming that rules such as those in issue are in fact designed to attain that objective, it appears that those rules enable lower-ranking creditors to establish the precise amount of prior-ranking debts, and thus to assess the value of the security offered to them, only at the price of a lack of security for creditors whose debts are denominated in foreign currencies.

32. In addition, national rules such as those at issue in the main proceedings contain an element of uncertainty which may compromise the attainment of the objective described above. As stated in paragraph 5 of this judgment, the Austrian rules allow the value of the mortgage to be expressed by reference to the price of fine gold. Yet, as the Advocate General observes in point 14 of his Opinion, the price of gold is currently subject to fluctuations in the same way as the value of a foreign currency.”

14As to the role of the European Court of Justice with regard to developing European private law, see the report of Sjef van Erp for the Netherlands Association of Comparative Law, published in print together with a second report on methodological issues surrounding comparative criminal law: S. van Erp, European Union case law as a source of European private law. A comparison with American federal common law and C.J.C.F. Fijnaut, Rechtsvergelijking en strafrecht(swetenschap): enkele methodologische beschouwingen (Deventer: Kluwer, 2006) p. 1 ff.; the article is also available in digital format via the Electronic Journal of Comparative Law: (vol. 5.4, December 2001) EJCL, http://www.ejcl.org/54/abs54- 1.html; See also K. Lenaerts and K. Gutman, “‘Federal common law’ in the European Union: A comparative perspective from the United States” (2006) American Journal of Comparative Law, p. 1 ff., especially with regard to real property law at p. 58 ff.

15Council Directive 93/7/EEC of 15 March 1993 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, OJ L 74, 27 March 1993, p. 74 ff.

16Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on Combating Late Payment in Commercial Transactions, OJ L 235, 8 August 2000, p. 35 ff.; Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings, OJ L 160, 30 June 2000, p. 1 ff.

17Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on Financial Collateral Arrangements, OJ L 168, 27 June 2002, p. 43 ff. For an analysis of the directive see: Th. Keijser, Financial collateral arrangements (Deventer: Kluwer, 2006).

18Reference can be made to the work done by the Mortgage Credit Forum Group, the Green Paper on Mortgage Credit in the EU (COM/2005/0327 final), the Mortgage credit costs and benefits study and the comments made by Member States of the EU and the EEA, corporate entities (banks), a considerable number of representative bodies, European institutions and others. Furthermore, a very well attended public hearing was held. I refer to the information that can be found on: http://ec.europa.eu/internal_market/finservices-retail/home-loans/integration_en.htm. See also the Resolution adopted by the European Parliament on 14 November 2006, to be found at: http://www.europarl.europa.eu/sides/getDoc.do?Type=TA&Reference=P6-TA-2006- 0487&language=EN.

19More information can be found on: http://ec.europa.eu/internal_market/finservices-retail/home-loans/ code_en.htm.

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20See: http://www.eulis.org.

21Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the Protection of Purchasers in Respect of Certain Aspects of Contracts Relating to the Purchase of the Right to Use Immovable Properties on a Timeshare Basis, OJ L 280, 29 October 1994, p. 83 ff.

22See: http://ec.europa.eu/consumers/cons_int/safe_shop/timeshare/index_en.htm.

23Green Paper on Wills and Succession (COM(2005) 65 final). See Juri Report no. 6/2006-6L of 3 May 2006.

24The text of the presentations can be found at: http://www.europarl.europa.eu/comparl/juri/hearings/ default_en.htm.

25Report with recommendations to the Commission on succession and wills (2005/2148(INI)) Committee on Legal Affairs (FINAL), A6-0359/2006, 16 October 2006, to be found on: http://www.europarl.europa.eu/committees/juri_home_en.htm. Recommendation 9 on trusts reads as follows:

“The European Parliament points out that the rules on property ownership come under the competence of the Member States, pursuant to Article 295 of the Treaty, and therefore requests that the legislative act to be adopted should not apply to trusts. However, that instrument should specify that when a trust is created as a result of death, the fact that the law specified by the instrument in question applies to the succession does not prevent another law from being applicable to management of the trust and that, by the same token, the fact that the law governing the trust applies to it should not prevent the law governing the succession by virtue of the future legislative act from being applicable to it.”

26Ch. von Bar and U. Drobnig, Study on Property Law and Non-contractual Liability Law as they relate to Contract Law, submitted to the European Commission – Health and Consumer Protection Directorate General – SANCO B5-1000/02/000574, to be found at: http://ec.europa.eu/comm/consumers/cons_ int/safe_shop/fair_bus_pract/cont_law/study.pdf.

27Public hearing held on 21 November 2006. See: http://www.europarl.europa.eu/comparl/juri/hearings/ default_en.htm.

28285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932). In his own words: “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” (footnote omitted)

29See Article 249 EC.

30For an analysis of the possibilities for harmonisation of private law under the European Constitution see: U.G. Schroeter, “Europäischer Verfassungsvertrag und Europäisches Privatrecht” (2006) Zeitschrift für Europäisches Privatrecht, p. 515 ff.

31ECJ 5 October 2000, Case C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union. See also ECJ 10 December 2002, Case C-491/01 The Queen and Secretary of State for Health, ex parte: British American Tobacco (Investments) Ltd v Imperial Tobacco Ltd.

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32The relevant part of the judgment is as follows: “81 Article 100a(1) of the Treaty empowers the Council, acting in accordance with the procedure referred to in Article 189b (now, after amendment, Article 251 EC) and after consulting the Economic and Social Committee, to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

82. Under Article 3(c) of the EC Treaty (now, after amendment, Article 3(1)(c) EC), the internal market is characterised by the abolition, as between Member States, of all obstacles to the free movement of goods, persons, services and capital. Article 7a of the EC Treaty (now, after amendment, Article 14 EC), which provides for the measures to be taken with a view to establishing the internal market, states

in paragraph 2 that that market is to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty.

83. Those provisions, read together, make it clear that the measures referred to in Article 100a(1) of the Treaty are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provisions cited above but would also be incompatible with the principle embodied in Article 3b of the EC Treaty (now Article 5 EC) that the powers of the Community are limited to those specifically conferred on it.

84. Moreover, a measure adopted on the basis of Article 100a of the Treaty must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. If a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were

sufficient to justify the choice of Article 100a as a legal basis, judicial review of compliance with the the proper legal basis might be rendered nugatory. The Court would then be prevented from discharging the function entrusted to it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring that the law is observed in the interpretation and application of the Treaty.

85. So, in considering whether Article 100a was the proper legal basis, the Court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (see, in particular, Spain v Council, cited above, paragraphs 25 to 41, and Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 10 to 21).”

33Protocol on the Application of the Principles of Subsidiarity and Proportionality, point 6.

34ECJ 4 June 2002, Cases 367/98, C-483/99 and C-503/99 (“Golden Shares” cases).

35Opinion by Advocate-General M. Dámaso Ruiz-Jarabo Colomer, under 1.

36Case 367/98, recital 28.

37On the interpretation of Article 295 see also the Opinion by Advocate-General M. Dámaso Ruiz-Jarabo Colomer, under 39 ff.

38Cf. S. van Erp, “Comparative property law”, in: M. Reimann, R. Zimmermann, The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) p. 1043 ff.

39For a further analysis of property rights as legal relationships see: J.Th. Füller (cf. supra, footnote 11)

p. 27 ff. In my doctoral thesis I examined contract as a form of legal relationship: S. van Erp, Contract als rechtsbetrekking. Een rechtsvergelijkende studie (Zwolle: W.E.J. Tjeenk Willink, 1990). The use of the legal relationship theory makes it possible to compare property law systems from a more abstract perspective and overcome conceptual differences between the common law “bundle of rights” approach to property rights with the civil law “rights in rem” approach. As to the civil law approach see: J.Th. Füller (cf.

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supra, footnote 11) p. 43: “Die Lehre vom Rechtsverhältnis hat die Erkenntnis wesentich gefördert, dass nur zwischen Rechtssubjekten aber nicht zwischen einer Person und einer Sache Rechten und Pflichten entstehen können. Erst im Konflikt mit Dritten muss sich das dinglilche Recht bewähren. Davor spielt es keine Rolle, ob eine Position als dinglich einzustufen ist, weil ihre Berechtigung von keinem Rechtssubjekt in Frage gestellt wird. Es handelt sich hierbei schlicht um keine rechtliche Frage. Ein Rechtsverhältnis zwischen einer Person und einer Sache erweist sich daher als ein Irrweg.”

40Other approaches as to what can be considered principles of European property law can be found in F.J. Säcker, “Vom deutschen Sachenrecht zu einem europäischen Vermögensrecht”, in: M. Stathopoulos (et al.), Festschrift fúr Apostolos Georgiades (Athens/Munich/Bern: Ant. N. Sakkoulas/C.H. Beck/ Stämpfli, 2006) p. 359 ff.; D. Krimphove, Das Europäische Sachenrecht. Eine rechtsvergleichende Analyse nach der komparativen Institutionenökonomik (Lohmar: Josef Eul Verlag, 2006) p. 475 ff.

41Cf. J. Th. Füller (cf. supra, footnote 11) p. 526 ff.

42Caquelard c. Lemoine, Req. 13 février 1834 (D.P. 34, 1. 218, S. 34, 1. 205).

43See concerning the numerus clausus principle: V. Sagaert, “Het goederenrecht als open systeem van verbintenissen? Poging tot een nieuwe kwalificatie van de vermogensrechten” (2005) Tijdschrift voor Privaatrecht, p. 986 ff., p. 1029 ff. The French proposal to introduce a civil law trust (“fiducie”) can be found on: http://www.assemblee-nationale.fr/12/propositions/pion3385.asp. “Fiducie” is defined as: “Art. 2011. – La fiducie est l’opération par laquelle un ou plusieurs constituants transfèrent des biens, des droits ou des sûretés, ou un ensemble de biens, de droits ou de sûretés, présents ou futurs, à un ou plusieurs fiduciaires qui, les tenant séparés de leur patrimoine propre, agissent dans un but déterminé au profit d’un ou plusieurs bénéficiaires.” See: P. Crocq, Propriëté et Garantie (Paris: LGDJ,

1995) p. 36 ff.; cf. also A. Prüm, C. Witz, M. Luther, “Die Treuhand: aktuelle Entwicklung in den Civil Law-Staaten Luxemburg und Libanon” (2006) Zeitschrift für Europäisches Privatrecht, p. 817 ff.; Scottish Law Commission, Discussion Paper on the nature and the constitution of trusts, Discussion Paper No 133 (Edinburgh: The Stationery Office, 2006).

44See the Convention on interests in mobile equipment (Cape Town, 2001), to be found on the website of Unidroit: http://www.unidroit.org/english/conventions/mobile-equipment/main.htm.

45Cf. J.Th. Füller (cf. supra, footnote 11) p. 550 ff.

46Cf. J.-B. Auby, La globalisation, le droit et l’État (Paris: Montchrestien, 2003) p. 86 ff.; E. Ioriatti Ferrari,

Codice Civile Europeo. Il dibattito, i modelli, le tendenze (Milan: Cedam, 2006) p. 181 ff.; J.M. Smits (cf. supra, footnote 1) p. 75 ff.

47In H.P. Bulmer ltd. and another v J. Bollinger S.A. and others, Court of Appeal 22 May 1974 [1974] Ch. 401. Lord Denning, M.R. discussed the enormous impact of the EEC Treaty on English law. He said: “The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the common market besides ourselves. The Treaty does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” See also I. Freeman, Lord Denning. A Life (London: Arrow books, 1994) p. 369 ff.

48Th. Storm, Der Schimmelreiter (Heide: Boyens & Co., 2003) p. 88.

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