Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

Chapter 3

Traité. This left a version of the text that is almost identical to the version that would make it into the Treaty of Rome. The only difference remained in the reference to undertakings (des entreprises) qualifying the system of ownership (régime de propriété). During an Intergovernmental Meeting (IGC) in March 1957 and not during an official meeting devoted to the wording of the Treaty provisions, the Chefs de Délégation met, on 6 March 1957, and removed the expression des entreprises from the text of the Article.24 The changes made to the text of the Article therefore provided Article 222 EEC with its final wording.

The Travaux Préparatoires of Article 222 EEC do not mention more than the chronological order of the changes that have been made to the draft version of the Treaty. They do not explain why these changes were made, nor do they provide insight into whether or not the changes made, in particular by the Comité des Chefs de Délégation, were intended to enlarge the scope of application of the Article. As the text of the Article can be directly traced to the Schuman Declaration, it seems that altering the meaning of the Article would have been an important decision. Earlier writings concerning the meaning of Article 345 occasionally mention that this expression is left out of the final version, only to then continue by either sidestepping this point completely or by merely mentioning that further background information is not available and leaving it at that.25 The fact that the Article was amended by the Chefs de Délégation, and not during an intergovernmental conference at a political level by the Ministers themselves, seems to suggest it was a mere change of wording.26 Moreover, the lack of attention to the change seems to suggest it was considered unimportant.

In line with this reasoning, it has sometimes been concluded that Article 345 therefore deals with the ownership of undertakings only; in other words, that the European Union will not concern itself with whether undertakings are publicly or privately owned.27 See, for instance, a statement by the CJEU in the case Commission v Portugal:

‘[Article 345 TFEU] merely signifies that each Member State may organise as it thinks fit the system of ownership of undertakings whilst at the same time respecting the fundamental freedoms enshrined in the Treaty.’28

This is an interesting interpretation, but whether it is correct remains unclear, just as it remains unclear why the Chefs de Délégation removed the reference to undertakings from the wording of the Article. If this was just an aesthetic change, the focus of the Article on means of production or undertakings subject to the Treaties remains. However, the removal of undertakings from the wording of the Article seemingly broadens its scope beyond ownership of undertakings to systems of ownership in general. Advocate-General Jacobs in his Opinion in Spain v Council carefully remarks that perhaps the reference to undertakings was removed because

24Doc. MAE 786/57 (Art. 282).

25Cf Riegel 1979, p. 746.

26The Travaux Préparatoires of the meeting of 6 March 1957 do not mention any explanation on the change in wording. MAE 786/57, Art. 232, Fiche CM3-NEGO-000268.

27Devroe 1997.

28Case C-367/98, Commission v Portugal [2002] ECR I-4731, para. 28.

99

The EU’s Competence to Regulate Property Law

the Treaty not only applies to Member States but also to private individuals.29 This, however, is a conclusion that can only be drawn in hindsight. It was through the judgments of Van Gend & Loos30 and Costa v E.N.E.L.31 that the ECJ established that the E(E)C Treaty entailed rights and obligations for individuals as well, and then only those Articles of the Treaty that were sufficiently clear and precise. These judgments were rendered after the entry into force of the Treaty and there is thus no reason to assume that the drafters of the Treaty intended its Articles to be directly applicable to individuals. The wording of the Article alone is insufficiently clear and precise to have a bearing on private individuals and cannot provide complete clarity on its scope.32

More clarity is provided by looking back into history even further than the time the Travaux Préparatoires were drafted. As previously mentioned, it follows from the Travaux Préparatoires for Article 345 (then Art. 222) that one of the earlier versions of the Article read ‘le régime de propriété des entreprises’.33 This is not surprising, given the wording of Article 83 of the Treaty on the European Coal and Steel Community (ECSC) which was the precursor of Article 345 TFEU.34 Unlike the TFEU, the ECSC Treaty was only authoritative in French: Article 100 ECSC states that the treaty is ‘rédigé en un seul exemplaire’.35 The term préjuge is used in the French version of both Article 83 ECSC and Article 345 TFEU. As was mentioned before,36 it was also already used in the Schuman Declaration.

The interpretation given by the Court to Article 345, as can be deduced from the abovementioned judgment of Commission v Portugal, seems to lie closer to the earlier draft of Article 222 EEC, which in turn seems inspired by the text of Article 83 ECSC and the Schuman Declaration. Next to that, the Commission’s interpretation of Article 345 as well seems to be in line with the previous versions of what

29Opinion delivered on 9 March 1995; para. 29.

30Case 26/62, Van Gend & Loos [1963] ECR 1.

31Case 6/64, Costa v E.N.E.L. [1964] ECR 585.

32The Advocate-General himself concludes, regardless of his own statement, that Art. 345 is probably only relevant for nationalisation and privatisation of undertakings; para. 29. See further on the addressees of Art. 345: Burghardt 1969, p. 71. The author would agree with Riegel (Riegel 1979, p. 746), that the decision to leave out the reference to undertakings might seem to broaden the scope of the article and might cast doubt to the submission that it nevertheless still only applies to undertakings. (‘Gerade die Tatsache aber, dass man letztlich eine weitere Fassung gewählt hat als ursprünglich, spricht doch eher dafür, dass dies dann auch so gemeint ist, zumal der EWGV im Gegensatz zum EGKSV ja nicht nur für Unternehmen relevant ist. Deshalb sind an der Folgerung, Art. 222 EWGV betreffe dennoch nur die Eigentumsordnung der Unternehmen, erhebliche Zweifel angebracht.’) However, since there is no evidence in case law or otherwise that supports this view, we are forced to conclude, as we have, that Article 345 TFEU is still to be interpreted as referring to the ownership of undertakings only.

33Conseil des Communautés Europeennes, Archives Historiques, Negociations des Traités Instituant la communauté Economique Europeenne et la communaute europeenne de l’energie atomiche, CM 3, N. 0261, Conférence intergouvernementale: Historique des articles 210 à 225 du traité instituant la CEE.

34Supra, at section 3.1.

35The English version states ‘drawn up in a single original’. See also Van Calster 1997, p. 366.

36Supra, section 2. Methodology of the CJEU.

100

Chapter 3

used to be Article 295 EC. Its interpretation is referred to as the ‘neutrality principle’:

‘The Treaty of Rome (Article 222) clearly establishes that each Member State is entitled to decide on the most appropriate form of property ownership. The Commission has therefore never taken any position on the question of public ownership and has always scrupulously ensured neutrality in its dealings with different forms of ownership.’37

Finally, the explanatory memoranda of the governments of the initial six Member States clarify why it is specifically the ownership of undertakings that is emphasized. The German Bundesregierung, for instance, commented that Article 222 EEC was in the Treaty because no other provision in the Treaty and no measure of the Community Institutions should be allowed to have the purpose or effect of nationalizing or privatizing undertakings.38 Also Italy and France wanted Article 222 in the Treaty out of concern that the Community would interfere with their practice of nationalizing certain industries.39

Therefore, even though the reference to undertakings has been removed from Article 345 TFEU, all the above-mentioned sources indicate that the Article should still be interpreted as though that reference was still there.40 On the basis of a historical interpretation, Article 345 therefore relates to the neutrality of the Treaties in respect to the ownership, private or public, of undertakings only.

3.2.1. Article 345 TFEU as seen from the Point of View of Property Law

The rules mentioned in Article 345 are the rules governing the system of property ownership, or in French le régime de la propriété. The Article does not state the rules of property ownership but the rules on the system of property ownership. It is here that an additional argument may be found in property law, rather than in European law, that might clarify the meaning of the Article.

37EC Bulletin 7/8-1991, point 1.2.75. See further Annex 1 (Definition of terms) to the Commission White Paper on Services of General Interest: ‘The term “public undertaking” is normally also used to define the ownership of the service provider. The Treaty provides for strict neutrality. It is irrelevant under Community law whether providers of services of general interest are public or private; they are subject to the same rights and obligations.’ COM(2004) 374 final.

38Rieber 1957, 312: ‘Durch den Vertrag soll nicht in die rechtlichen Bestimmungen der Mitgliedstaaten eingegriffen werden, durch die das Eigentum geregelt wird. Das gilt besonders für das Eigentum an Unternehmen. Keine Bestimmung des Vertrags darf daher so ausgelegt werden und keine Maßnahme der Organe der Gemeinschaft darf zum Ziele haben, ein Unternehmen in Gemeinwirtschaft zu überführen oder umgekehrt ein im Gemeineigentum stehendes Unternehmen zu privatisieren.’

39See, for instance, Schwarze 2000, 2334; Léger 2000, 1879; Sauter 1998, 57. One of the earliest examples is the nationalisation of the Italian electricity sector, which led to the famous Costa v E.N.E.L. judgment (Case 6/64 [1964] ECR 1141). The Commission answered to a written question from Philipp MEP concerning this intended nationalisation, that in accordance with Article 222 EEC every Member State has the right to change the system of property ownership in a sector of its economy: OJ 1962, No. 121, 2715-2716.

40See, for instance, also VerLoren van Themaat 1982, p. 365.

101

The EU’s Competence to Regulate Property Law

In property law it is uncommon to speak of the system of ownership, except when defining types of ownership such as fragmented or unitary concepts of ownership.41 The addition of the term ‘system’ therefore suggests that we are not dealing with the right of ownership itself but rather with the way in which the right of ownership can be held. Burghardt gave a similar explanation only a few years after the entry into force of the EEC Treaty. According to him, the term ‘system’ refers to the collection of rules that regulate ownership in the broadest sense, including the rights and obligations that are attached to the right of ownership and the way in which the right of ownership can be used but also nationalizations, privatizations and expropriations.42 He emphasized that ‘system of property ownership’ – and the equivalents in the original four languages – is not normally used as a legal technical term. More recently, Advocate-General Colomer gave a statement to the same effect in his Opinion of 6 November 2008 in the Commission v Italy case:43

‘I therefore repeat my view that the expression “system of property ownership” contained in Article 295 EC refers not to the civil rules concerning property relationships, but to the ideal body of rules of every kind, including public law rules, which are capable of granting ownership rights in respect of a business; in other words, rules which allow the person vested with such rights to exercise decisive influence on the definition and implementation of all or some of its objectives; […].’

In other words, a wording leaving out the word system would immediately provide a different meaning to Article 345 for a property lawyer: rules of the Member States governing property ownership would imply a direct effect on the right of ownership itself. It is in this regard important to refer to Article 91 of the Treaty establishing the European Atomic Energy Community (EAEC), which corresponds to Article 83 ECSC and Article 345.44 This Article states:

‘Le régime de propriété applicable à tous objets, matières et biens qui ne font pas l'objet d'un droit de propriété de la Communauté en vertu du présent chapitre est déterminé par la législation de chaque État membre.’45

A difference is made in this Article between the régime de propriété – system of property ownership – and a droit de propriété – right of ownership. For a property lawyer these are two different things. The German version of the Article provides the same results: the German version differentiates between the term Eigentumsord-

41Van der Walt & Kleyn 1989, p. 213-60.

42Burghardt 1969, p. 18-19. See also Grabitz 2005, Art. 295 EGV, 1; Lenz 1999, 1978; Bartels 1995, p. 246.

43Case C-326/07 [2009] ECR I-2291, para. 36. See also his earlier Opinion to joined cases C- 367/98, C-483/99 and C-503/99, Commission v Portugal, at para. 54.

44And to Art. 125 EEA, which will be discussed in section 5.2.

45The English version states: ‘The system of ownership applicable to all objects, materials and assets which are not vested in the Community under this Chapter shall be determined by the law of each Member State.’ Originally the Treaty was only authentic in four languages – Art. 225 EAEC: ‘This Treaty, drawn up in a single original in the Dutch, French, German and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which shall transmit a certified copy to each of the governments of the other signatory States.’

102

Chapter 3

nung (system of property ownership) and the term Eigentumsrecht (right of ownership). The system of property ownership concerns the entire body of rules that regulates the way in which the right of ownership is held, whereas the term ownership – or droit de propriété/Eigentumsrecht – refers to the (content of) the right of ownership itself.46 Article 345 TFEU is therefore concerned with the subjects of the property relationship, namely undertakings. It excludes the application of the Treaties to the question whether these undertakings are held in private ownership – by shareholders – or in public ownership – by a Member State government. Given the limitation to undertakings, Article 345 is concerned only with legal persons and not natural persons as the subjects of the property relationship, which means that it has no bearing on consumers. Most importantly, the Article does not concern the content of the right of ownership, nor does it concern what types of things (e.g. tangibles or intangibles) can form the objects of a right of ownership. This means that undertakings, and the question whether or not they are owned publicly or privately, are excluded from the scope of application of the Treaties, but that national rules governing the right of ownership and the objects of ownership are not excluded from the scope of application of the Treaties.

Concluding, on the basis of the foregoing, that ‘system of property ownership’ refers not to the right of ownership itself but only to the way in which it is held, the continued reference to undertakings and whether they are held in public or private ownership becomes easier to understand.

3.2.2. Private or Public Property Law?

Another possibility would be to distinguish, with regard to the interpretation of ‘system of property ownership’, between private property law and public property law. Private property law would then be the area of law regulating relationships of persons with regard to objects, in civil law countries primarily to be found in the civil code. Public property law would include areas of law such as planning law, environmental law, land taxation and possibly even human rights law: think of the right to property as laid down in Article 1 of Protocol I to the European Convention on Human Rights and in Article 17 of the EU Charter of Fundamental Rights and similarly the right to property as laid down in many constitutions of the EU Member States.47 Article 345 TFEU could in that case be interpreted as excluding from the scope of the Treaty only one of these two branches of property law, namely public property law.48 This interpretation can be deduced from the focus placed on ownership of undertakings in previous versions of Article 345.

Whether the European legislature would actually distinguish between private property law and public property law in this manner remains to be seen. As

46See to this effect Groeben 1997, 5/386-5/387. The same is true for the Italian version, which differentiates between il regime di proprietà and un diritto di proprietà.

47See e.g. Art. 14 of the German Grundgesetz, Art. 14 of the Dutch Grondwet, Art. 17 of the French Déclaration des Droits de l’Homme et du Citoyen de 1789, and Art. 42 of the Italian Costituzione.

48The author wishes to thank Professor George Gretton, University of Edinburgh, for suggesting this possible interpretation of Article 345 TFEU.

103

The EU’s Competence to Regulate Property Law

explained in Chapter 1,49 the EU generally does not classify legislation in areas of law along the same lines as national legislatures do because EU law is competencedriven. Nevertheless, presuming that the European legislature would distinguish between private and public property law, one has to conclude, on the basis of the other findings described in this chapter, that Article 345 would exclude public property law from the scope of application of the Treaties, but not private property law. Whether ownership of an undertaking is in the hands of the State or in private hands, i.e. whether an undertaking is nationalized or privatized, would be classified as public property law. This is in line with the previous conclusion that Article 345 only concerns the system of property ownership of undertakings and not the entire private law area of property law.

It may be difficult to draw a strict line separating public from private property law, and this line may of course be drawn differently in different Member States. National rules on expropriation, for instance, are arguably more of a public law nature and would because of Article 345 TFEU not be ‘prejudiced’ by the Treaties. Until the EU Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty it was more likely, however, that the EU would not interfere with national rules on expropriation, not because of Article 345 TFEU, but because that was the domain of Article 1 First Protocol of the European Convention on Human Rights. However, since the right to property is now also protected under Article 17 of the Charter, national rules on expropriation may fall within the scope of application of the Treaties after all, in spite of Article 345. It always remains the case, though, that the Charter only applies to Member States when they are implementing EU law. Therefore, national rules on expropriation that have nothing to do with the implementation of EU law – and they probably do not – will not be affected by the Treaties.50

On the other hand, national rules excluding certain objects from private ownership (and which therefore regulate which types of things can be the objects of the right of ownership)51 may be considered to be more of a private law nature. Given that Article 345 would not apply to such rules, they would come under the scope of application of the Treaties. This argument is supported by what was seen in Chapter 2 with regard to the Spanish Ley de Costas.52 This Spanish law excludes certain coastal regions from private ownership and is likely to be in violation of the Treaties’ rules on free movement of capital.

49Chapter 1 at 2. The acquis method: defining EU property law.

50Cf case 40/11, Yoshikazu Iida v Stadt Ulm (8 November 2012, n.y.r.), para. 78: ‘As to the fundamental rights mentioned by the referring court […] it must be borne in mind that, in accordance with Article 51(1) of the Charter [of Fundamental Rights], its provisions are addressed to the Member States only when they are implementing European Union law. Under Article 51(2) of the Charter, it does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called on to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see Dereci and Others, paragraph 71).’

51See supra, section 3.2.1.

52Chapter 2, section 4.3. Obstacles to the free movement of capital.

104

Chapter 3

3.3.‘The Treaties’ to which Article 345 TFEU Refers

The words ‘the Treaties’ in Article 345 refer to the TEU and the TFEU. They seem to refer to the free movement of goods, persons, services and capital, the rules of EU Competition law, as well as the Articles in the Treaties providing rights directly, for instance, Article 9 TEU that creates European citizenship and Articles 20 et seq. TFEU attaching rights to European citizenship, and the Articles providing a legal basis for secondary EU legislation.53 There are other Articles in the TFEU that also exempt the application of the Treaty but which use different words. For example, Article 346 TFEU mentions ‘the provisions of the Treaties’ rather than ‘the Treaties’ only. Article 55 TFEU (ex Art. 294 EC) mentions ‘the other provisions of the Treaties’.54 It is unclear whether there is a difference between these two wordings.55

The short wording ‘the Treaties’ leaves open whether secondary EU legislation can be enacted contrary to Article 345 TFEU, in the sense that it affects the Member States’ rules on their system of property ownership. It would then technically be the secondary European legislation that would be contrary to Article 345 and no longer the provisions in the Treaties themselves. This question is relevant as Article 345 is occasionally used by Members of the European Parliament or by the European Commission to attempt to prevent secondary legislation from being enacted.56 As will be shown in Chapter 4, the EU has already enacted a number of regulations and directives that have an effect on the national systems of property law. It would appear that in those instances Article 345 has not prevented the European legislature from legislating.

3.4.Combining the Above: a Possible Interpretation of Article 345 TFEU

Taking all of the above into account, it is possible to formulate a most likely interpretation of Article 345, against which the current use and interpretations by the European legislature and Courts can be tested. The following interpretation will be revisited in the conclusion of this chapter to see whether the interpretation is sufficiently accurate or might need adaptation in light of, for instance, CJEU judgments.

Article 345 TFEU, formerly 295 EC and 222 EEC, is an Article that limits, but does not prevent, the application of the Treaties as a whole to the way in which rules of a Member State deal with the right of ownership of undertakings. The

53On rights derived from Art. 21 TFEU (ex Art. 18 EC) see Case C-353/06, Grunkin-Paul [2008] ECR I-7639.

54See also Artt. 25 (to the other provisions of the Treaties), 122 (to the other procedures provided for in the Treaties), 140 (to the other provisions of the Treaties), 212 (to the other provisions of the Treaties), 226 (to the powers conferred by the Treaties), 262 (to the other provisions of the Treaties), and 325 (to the other provisions of the Treaties).

55It might be that this difference has gone unnoticed thus far.

56See e.g. Green Paper on Wills and Succession COM(2005) 65 final and the questions of the Members of the European Parliament mentioned infra in section 4.

105

The EU’s Competence to Regulate Property Law

Article does not provide powers to the European Union to legislate in the field of property law, nor does it give powers to the Member States.57

The conclusion can be drawn from analysis of the Travaux Préparatoires and the predecessors of Article 345 – in particular Article 83 ECSC – that Article 345 only concerns the private or public ownership of undertakings, with which the EU shall not concern itself and which can thus be regulated by the Member States themselves,58 especially since there is no apparent reason why the reference to undertakings was removed from the final version of the Article.

4.Article 345 TFEU in EU Legislative Work

The linguistic, historical and contextual interpretation of Article 345 provides a better overview of the scope and meaning of the Article than a mere literal interpretation does. Additionally, the way the Article is used in practice must also be considered. Such an examination is necessary to see whether the intention of the drafters of the Treaty was followed or whether, over time, the Article has gained a different meaning from the one originally intended by the drafters.

Because Article 345 does not offer a legal basis for secondary European legislation, it is difficult to find instances where Article 345 is used in a systematic way. Nonetheless, there are certain subject areas where Article 345 is dealt with more often than others. Competition Law, in particular State aid, and Enlargement are the two main fields in which the Article has been used. However, the use and interpretation of the Article are not always consistent.

When Article 345 is mentioned in relation to Competition Law, the European Commission usually recalls that this Article relates to the principle of neutrality. By using that term the Commission wishes to show that the Treaty is neutral concerning the question whether a company – or undertaking – is in public or private ownership, i.e. whether the shares in such a company are held by the State or by private shareholders. For example, in its Notice on the Application of Article 87 and 88 of the EC Treaty (now Artt. 107 and 108 TFEU) to State aid in the form of guarantees, the Commission states:

‘This Notice applies without prejudice to Article 295 of the Treaty [now Art. 345 TFEU] and thus does not prejudice the rules in Member States governing the system of property ownership. The Commission is neutral as regards public and private ownership.

In particular, the mere fact that the ownership of an undertaking is largely in public hands is not sufficient in itself to constitute a State guarantee provided there are no explicit or implicit guarantee elements.’59

This use of Article 345 is in conformity with the interpretation of the Article as presented above. It is this interpretation that is most often used by the European

57As may be implied from Joined Cases C-92/92 and C-326/92, Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Imund Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v EMI Electrola GmbH [1993] ECR I-05145, paras. 18, 27.

58See Craig & De Búrca 2011, p. 1073.

59Commission Notice 2008/C 155/02, OJ 20.6.2008, C 155/11.

106

Chapter 3

Commission in its documents.60 Moreover, this interpretation is used by institutions of the European Union involved in the legislative process. For example, the Committee of the Regions states in a Resolution on Enlargement:

‘15) Deplores the fact that the Commission systematically recommends accelerating the pace of privatisation in its monitoring reports on the acceding countries. It must be recalled that Article 295 EC provides neutrality of EU legislation as regards property. Privatisation is not an aim in itself and should not be confused with opening of market access in the sectors where the EU is competent to regulate. The social impact of opening market access in the applicant countries should be closely monitored;’61

The European Council conclusions of the Laeken Council on Services of General Interest of 17 October 2001 mention in recital 18:

‘18. As regards the means to ensure the compensation, Member States have in fact a large margin of discretion. Depending on the specific needs of the undertakings concerned, these can receive annual subsidies, a preferential fiscal treatment, lower social contributions etc. The decisive element for the Commission lies in the fact that the value of these advantages does not exceed the extra-costs of the undertakings concerned for the provision of a service of general economic interest. Similarly, in accordance with Article 295 the Commission's approach is neutral as regards the public or private nature of the undertakings concerned. This choice is entirely up to the Member States.’62

Despite this seemingly uniform interpretation of the Article, the European Institutions, especially the European Commission, do not always act in conformity with the general interpretation of the Article. In the past decades several Members of the European Parliament have asked questions on the use of Article 345 TFEU as a restriction on the competences of the European Union. In answering these questions the Commission is a lot less clear as to its meaning.

On 16 October 1997 MEP Watts asked the European Commission whether ‘there are any restrictions placed on the purchase of a property in EU Member States for non-nationals of that State?’ The Commissioner for the Internal Market Monti answered:

‘The Honourable Member’s questions concern, without reference to a particular Member State, the purchase of real estate in one Member State by nationals of another Member State. The Commission would recall earlier parliamentary questions concerning property acquisition in particular Member States ((See, for example, written questions No E-1032/96 by Mr Böge, OJ C 297, 8.10.1996; No 2491/95 by Mr Sakellariou, OJ C 66, 4.3.1996. )). (…)

While the EC Treaty in no way prejudices the system of ownership in Member States (Article 222), rules will remain subject to the fundamental rule of non-discrimination at the basis of Articles 6, 48, 52 and 59 and measures to give effect to certain of these Articles, as well as the prohibition of all restrictions, subject to the usual exceptions, on

60See, inter alia, COM(2004) 327 final, 20, COM(2007) 529 final, 6, COM(2007) 530 final, 6, COM(2007) 532 final, 6.

61Committee of the Regions Resolution on Enlargement, 2004/C 73/16.

62Council Conclusions of 17 October 2001, COM(2001) 598 final.

107

The EU’s Competence to Regulate Property Law

cross border capital movements (which includes the acquisition of real estate) provided in Article 73b.’63

On 1 December 1998 MEP Angelilli asked a question to the Commission regarding a campaign to save an authentic Italian farm, which had been State owned, from the hands of a commercial company that might use the building for non-farming purposes. The Commissioner for Agriculture, Rural Development and Fisheries Fischler answered:

‘Under Article 222, the EC Treaty does not in any way prejudice the rules in Member States governing the system of property ownership. There are no Directives or other acts in Community law containing provisions allowing agricultural cooperatives or workers to exercise a right of pre-emption when the holding on which they work is sold. Any provisions establishing such a right for the above entities, to which the Honourable Member refers, would thus be governed exclusively by national law.’64

Moreover, on 8 June 1998 the Commissioner for Competition Van Miert recalled the more generally accepted meaning of Article 345 TFEU by stating:

‘The Commission shares the Honourable Member’s view that the Treaty is neutral with respect to the ownership of business, a principle laid down in Article 222 of the EC Treaty.’65

This last interpretation was confirmed by Commissioner Bolkenstein:

‘5. Article 295 of the EC Treaty stipulates that This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership. Member States therefore have the right to nationalise or to privatise.’66

However, Article 345 TFEU has also been used to deny competence of the European Union. For example, on 11 March 2003, MEP Borghezio asked the Commission a question relating to property caught up in an inheritance that would not be released by the Italian State. Commissioner Vitorino answered:

‘The Commission does not have a general competence as regards the fundamental rights under the terms of the treaties on European Union and establishing the European Community. It could intervene only in the event of violation of the fundamental rights in the field of application of Community legislation, which does not seem to be the case related to the property of the letters of the late Mrs Petacci. Indeed the regulation of property comes under the responsibility of the Member States. In fact, Article 295 of the EC Treaty provides that: This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.’67

63Written Question E-3216/97 by Mark Watts (PSE) to the Commission (16 October 1997).

64Written Question E-3543/98 by Roberta Angelilli (NI) to the Commission (1 December 1998)

65Written Question E-1564/98 by Marie-Noëlle Lienemann (PSE) to the Commission (20 May 1998).

66Written Question E-0476/03 by Erik Meijer (GUE/NGL) to the Commission (20 February 2003).

67Written Question P-0818/03 by Mario Borghezio (NI) to the Commission (11 March 2003).

108