in the field of execution or insolvency law, such a mini-directive would have considerable merits for intra-community trade.

II. Harmonisation or unification beyond simple retention of title

1. Form, scope and context

One of the principal questions discussed with respect to European private law unification in general and to European contract law especially62 is whether European legislation should be introduced as an additional model for parties to opt for instead of the otherwise applicable autonomous national law or whether such European legislation should replace national law altogether. In the area of secured transactions law, authors have hitherto argued in favour of an additional ‘European Security Right’ which would supplement but not replace national law.63 Such a European Security Right was already felt to be an extremely ambitious project the acceptance of which should not be undermined from the outset by the goal of replacing national law.64 On a theoretical level, one may also argue that the so-called ‘15 plus 1’ model65 would leave room for ‘competition among legal systems’ or ‘regulatory competition’ and that it would restrict the detrimental effects of errors or false compromises in the legislative process. In practice, the issue will probably depend on development in the area of contract law and of European private law as a whole. If the EU institutions seriously started to prepare a regulation on European contract law or even a European Civil Code replacing autonomous national law, there is no reason why the area of secured transactions should be left outside; rather security rights in movables is the field where unification is most desirable. If, on the other

62See, for example, options IV (a) and (b) on the one hand and IV (c) on the other hand presented by the European Commission in its ‘Communication from the Commission to the Council and the European Parliament on European Contract Law’ of 11 July 2001, COM (2001) 398 final.

63See foremost Kreuzer, in: Festschrift für von Overbeck, 613 (637 ff.); Kreuzer, in: Henrich,

Vorschläge und Gutachten zur Reform des deutschen internationalen Sachenund Immaterialgüterrechts, 37 (107 ff.); Kreuzer, Recueil des Cours 259 (1996) 9 (303 ff.). Cf. also Kieninger, Mobiliarsicherheiten im Europäischen Binnenmarkt 240; Seif, Der Bestandsschutz besitzloser Mobiliarsicherheiten im deutschen und englischen Recht 310 ff. An overview of the different suggestions can be found in Kaufhold, Internationales und europäisches Mobiliarsicherungsrecht 216 ff. and 304 ff.

64According to Kreuzer (Recueil des Cours 259 (1996) 9 (304)), a uniform security right replacing national law would neither today nor in the near future have any realistic chance of being adopted.

65Which from May 2004 should be called ‘25 plus 1’ model, or even, taking account of the autonomy of Scots law, ‘26 plus 1’ model.

666 e v a - m a r i a k i e n i n g e r

hand, the general trend is towards the so-called ‘15 plus 1’ model, it is likely that the EU institutions would rather opt for a European Security Right supplementing existing national law. In that case, the additional question arises whether the supranational legislation should be framed as an opt-in or an opt-out model, that means, whether parties, in case the requirements of an intra-community transaction are satisfied (which would have to be defined in such an instrument), have to declare expressly the applicability of European law (opt-in) or to declare its inapplicability (opt-out). Experiences, especially with the CISG, have shown that an opt-out model is better able to foster acceptance and to provide practice with court decisions in a reasonably short time-span. If an opt-in model is favoured, the parties should be given the option of adopting the European Security Right in cases where the requirements of transnationality are not satisfied. This again would enhance practical experience and acceptance.

The scope of potential European legislation would again depend on its context. If a European Security Right is created within the framework of a European Civil Code, it could be embedded into a unification of the general rules of property law such as the transfer of ownership, the significance of possession, bona fide acquisition from a non-owner or specificatio and commingling. Such a comprehensive unification would seem to be the most desirable option. However, if such a wide-ranging unification is not attainable in the near future, this would not render a more limited project ineffective. This study has shown that the differences of approach towards security rights do not rest on the different systems regarding the transfer of ownership:66 English law, which can be said to adhere to the consensus principle, is nearly as open towards security in movables as is German law with its principle of abstraction. On the other hand, Scots law, if one disregards the elements transplanted into it from English law such as the f loating charge or all-monies clauses, adopts a strict stance towards non-possessory security rights comparable to that of French, Belgian or Italian law, although Scots law is an abstract system whereas Belgium and Italy have taken over the French solo consensu rule. This is not to say that the rules on the transfer of ownership do not matter as far as security rights are based on title; yet, the creation of a European Security Right that would not be title-based would not depend on unifying at the same time the rules on the passing of ownership.

66As to the different systems of transfer of ownership, see comparative observations, case 1(a).