Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

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site concerned and, if appropriate, after having obtained the opinion of the general public.’

This means, for instance, that hunting certain species of animals is not allowed and that construction, or any other activity that risks disturbing the habitat of certain species, is not allowed either. The same is true for the disturbance of plant life.125 Similar provisions concerning the preservation of certain bird species can be found in the Birds Directive.126 In essence, through these directives an owner can be restricted in the exercise of his right of ownership of a particular area of land by a public law measure.

2.4.Directive 93/13/EEC on Unfair Terms in Consumer Contracts127

The Unfair Terms Directive is meant to aid consumers when concluding crossborder contracts for the supply of goods or services, by ensuring that unfair terms are removed from those contracts.128 Because the Directive applies to goods and services,129 it will affect movable property law: contracts concluded for the creation, transfer or destruction of property rights in relation to movable objects will fall under the scope of application of the Directive.130 Whether the scope of the Directive extends to contracts relating to immovable property remains to be seen.131 The English and German versions – using the terms ‘goods’ and Güter respectively – might indicate that the Directive does not cover contracts relating to immovable property. The French and Dutch versions on the other hand – using the terms biens132 and goederen respectively – might indicate that the Directive does cover contracts relating to immovable property, given that these terms cover both movable and immovable property in their respective national systems.133 The Explanatory Memorandum to the original Commission proposal stated:

‘It cannot be assumed that consumers who cross frontiers to buy goods or services, or to invest or acquire property in other Member States, have understood and agreed the terms of a contract they have made, if they do not speak the local language or are unfamiliar with the local law.’134 [emphasis added]

On this same issue a question was asked by European Parliamentarian Yves Verwaerde, who wished to know ‘[w]hat specific measures […] the Commission plan[s] to adopt to increase legal protection for those acquiring immovable property in the European Community […]?’.135 The Commission’s representative answered

125See Artt. 12 and 13 of the Habitats Directive.

126Artt. 5-8.

127[1993] OJ L 95/29.

128Preamble, Recital 10.

129Art. 4.

130Akkermans 2010a, p. 14.

131Bright & Bright 1995, p. 655.

132Cf Schulte-Nölke, Twigg-Flessner & Ebers 2008, p. 367.

133Cf Bright & Bright 1995, p. 664.

134COM(90) 322 final of 3 September 1990, p. 2.

135Written Question No. 2325/90 by Yves Verwaerde, [1991] OJ C 177/9.

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that the proposal for the Unfair Terms Directive ‘offers considerable protection in relation to contracts for any kind of consumer purchase’. The final version of the Directive no longer contains the reference to the investment or acquisition of property. Bright ventures to say that the specific exclusion of immovable property from a number of directives may indicate that, in the absence of any such exclusion, immovable property is normally covered.136 This is certainly a possibility. Below, under the heading Movable/immovable, it is shown that the term immovable is often used to exclude immovable property explicitly from the scope of application of a directive or regulation. The absence of such an exclusion from the Unfair Terms Directive, together with the Explanatory Memorandum and the Parliamentary Question just mentioned,137 may indicate that the Unfair Terms Directive should be read as including contracts relating to immovable property. This argument is supported by a judgment of the English Court of Appeal in which Laws LJ states the following:

‘I am unable to perceive any rationale for the exclusion of land transactions from the [Unfair Terms] Directive’s scope. Such an exclusion would cut across the grain of the legislation’s aim to provide “a high level of protection”. I agree [...] that one would expect to find such an exclusion expressly provided for; and it is not to be found.’138

Contracts for the supply of services are not restricted by the Directive to movable property only, thus services relating to immovable property may be covered.139 A mortgage loan, for instance, could be seen as the provision of a (financial) service.140 Bright draws a parallel with the VAT Directive in which the creation of rights in immovable property is classified as a supply of goods or services.141 A parallel can also be drawn with the Doorstep Selling Directive.142 The ECJ held in the Dietzinger case, which involved the Doorstep Selling Directive, that ‘[t]he grant of a credit facility is indeed the provision of a service [in the sense of the Directive]’.143

In conclusion, it would seem that the scope of application of the Unfair Terms Directive not only includes contracts for the supply of goods or services in relation to movable property but also such contracts in relation to immovable property.

2.5.Directive 85/577/EEC on Contracts Negotiated away from Business Premises (‘doorstep selling directive’)

The starting point in this Directive is that it excludes contracts relating to immovable property from its scope of application. This follows from Article 3(2) of the

136Bright & Bright 1995, p. 666.

137See supra note 135.

138R. (on the application of Khatun) v Newham LBC, [2005] QB 37.

139Akkermans 2010a, p. 14.

140Bright & Bright 1995, p. 662.

141Bright & Bright 1995, p. 669. For a more detailed discussion of the VAT Directive see supra, section 1.5.

142See supra, section 1.5.

143Case C-45/96, Bayerische Hypothekenund Wechselbank AG v Edgard Dietzinger, [1998] ECR I- 1199, para. 18.

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Directive.144 At first glance, therefore, the Directive appears not to concern matters of property law. However, Article 3(2) has been interpreted by the ECJ in such a way that it can actually have an effect on national rules of property law. The cases Heininger,145 Schulte146 and Crailsheimer147 all involved investment deals – for instance to renovate residential apartment blocks – consisting of an agreement to purchase immovable property and a credit agreement (or loan agreement) to finance the purchase, with the immovable property as collateral.148 When the deals turned out to be bad investments, it proved impossible to cancel the purchase agreements, even though the deals had been concluded in what the Directive would consider to be ‘doorstep’ conditions.149 The parties in these cases then tried to challenge the credit agreements under the Directive, arguing that the purchase agreements formed an economic unit with the credit agreements so that, if the credit agreements could be cancelled under the Directive, the purchase agreements should also be able to be cancelled. The Court however held that a credit agreement falls within the scope of the Directive but that the effects of a cancellation of that agreement on the purchase agreement are to be governed by national law.150 However, cases such as Heininger, Schulte and Crailsheimer arise mainly if the consumer has not been told of his doorstep right of cancellation.151 The consumer cannot avoid exposure to the risks of a bad investment if he is not informed in time of his right of cancellation.152 If this is the case, Member States are required ‘to ensure that their legislation protects consumers who have been unable to avoid exposure to such risks, by adopting suitable measures to allow them to avoid bearing the consequences of the materialization of those risks.’153 In other words, Member States are to ensure the effet utile of the Directive. If linked contracts are involved such as in the abovementioned cases, the effet utile of the Directive may not be realized if consumers can only withdraw from the credit agreement but not from the purchase agreement.154 Therefore, the effects of these judgments may be direct in causal systems (both causal consensual and causal tradition systems), where ownership passes upon conclusion of the agreement.155 In abstract tradition systems, where the transfer of ownership depends not only on a valid agreement but also on an act of

144See Art. 3(2): ‘This Directive shall not apply to: (a) contracts for the construction, sale and rental of immovable property or contracts concerning other rights relating to immovable property. Contracts for the supply of goods and for their incorporation in immovable property or contracts for repairing immovable property shall fall within the scope of this Directive.’

145Case C-481/99, Heininger, [2001] ECR I-9945.

146Case C-350/03, Mr and Mrs Schulte v Deutsche Bausparkasse Badenia AG, [2005] ECR I-9215.

147Case C-229/04, Crailsheimer Volksbank, [2005] ECR I-9273.

148Sparkes 2007, p. 205.

149Sparkes 2007, p. 205.

150Schulte, at 68.

151Sparkes 2007, p. 244.

152Schulte, at 98-99.

153Schulte, at 101.

154Akkermans 2010a, p. 7.

155Cf Hoge Raad 10 August 2012, BW4992, 11/01768.

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delivery, property law rules may have to be altered or added to, to conform with the Directive.156

PART II – TERMINOLOGY

3.Searching for Property Law Terms

During the search for property law aspects in EU law it became clear that, while there are only very few measures that actually contain substantive property law, measures containing property law terminology can be found frequently. The research for this part of the chapter was conducted on the basis of a list of search terms. The list was compiled on the basis of knowledge gained through several years of researching comparative and European property law. The literature consulted for this research shows that there is a basic set of terms used within the field of property law to describe the core concepts and relationships.157 This information was used to decide what terms would be included in the list of search terms. The search was conducted with the use of the EUR-lex database158 and with the use of the Google search engine. The list of search terms and a description of how the search was conducted are provided below:159

-owner/ownership/proprietor

-possessor/possession

-in rem/in re

-real right/personal right

-proprietary

-numerus clausus

-lex rei sitae

-transfer

-convey* with land

-assign* with claim

-cession

-pledg* (to find pledge, pledgor, pledgee and any variation of the verb to pledge)

-mortgag* (to find mortgage, mortgagor, mortgagee and any variation of the verb

to mortgage)

-hypothec* (to find hypothec, hypothecor, hypothecee)

-lien* except client

-charge/floating charge/fixed charge

-estate

-tenure

-freehold* (to find freeholder as well)

156Akkermans 2010a, p. 7.

157See, for instance, Lawson & Rudden 2002, Sparkes 2007, Baur, Baur & Stürner 2009, Libchaber 2004, Asser & Hartkamp 2011, Von Bar 2000, Faber & Lurger 2008, Van Erp 2009b.

158<http://eur-lex.europa.eu/en/index.htm> Simple Search.

159The search was conducted between April 2010 and March 2012. Legislation enacted after that time is not included.

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-free simple

-lease* (to find leasehold and leaseholder as well)

-tenancy/tenancies

-title to with interest in/legal title

-retention of title/reservation of ownership

-servitude

-usufruct* (to find usufructuary as well)

-easement

-restrictive covenant

-emphyteusis

-superficies

-trust* (to find trustee as well)

-beneficiary with trust

-movable* (to find both movable(s) and immovable(s))

-tangible* except tangible evidence/contribution/criteria (to find both tangible(s)

and intangible(s))

- corporeal* (to find both corporeal(s) and incorporeal(s))

Compiling a list of search terms was not the most difficult part of this research. EUR-lex seemed the logical search engine to use for searching property law terminology in EU legislation. A simple search by word in title and text was the first step. The search results were then narrowed down by indicating that the type of document should be a regulation or directive. Other refining tools used were the EXCEPT and WITH fields, providing the possibility to exclude or include a term or terms in combination with the main search term.160 However, the EUR-lex search engine has a number of shortcomings, which are felt in particular when looking for terms that have a colloquial meaning in addition to their legal meaning, such as assignment or title. It is impossible in EUR-lex to separate a term’s legal meaning from its colloquial meaning. One cannot tell a search engine to look for title ‘in the property law sense’; it takes a human brain to understand such a contextual qualification.

Secondly, it is not possible to manipulate what comes in front of your search term. To clarify: an asterisk (*) can be used as a so-called wild card to tell the search engine to fill in the blanks. For instance, EUR-lex makes a search for own* possible, which yields documents containing terms such as owned, owner and ownership. Unfortunately, it also yields documents with words such as known or down. Due to these limitations in the search engine, some search terms yield (tens of) thousands of results, a quantity of data impossible to manage in the context of a PhD research project. This problem is exacerbated by the fact that, unlike many other search engines, EUR-lex does not display the context – i.e. sentence or paragraph – in which the searched term appears, so that one could immediately infer from the context whether the document is relevant or not. One can, for instance, quickly

160For instance: convey WITH land will only yield documents that contain both these words. Lien EXCEPT client will only yield documents that contain the word lien, but not the word client.

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deduce from context whether ‘assignment’ is used in the meaning of task or in the meaning of transfer of a claim.

Thirdly, EUR-lex also renders search results of measures which are no longer in force. That means having to check for each individual measure whether or not it has expired or been replaced by a new measure. I did this for every measure enacted before the year 2000. Furthermore, it renders amendments separately from the original document – usually, there is no consolidated version. That means that the amendments must be compared to the original to find out whether anything relevant from a property law point of view has been added or removed by the amendment. One final problem is that the search results cannot be downloaded into, for example, an excel file where they could be archived for later use.

EUR-lex’s advanced search engine does not solve these problems. It is not user friendly, does not yield certain results of which you know are ‘out there’ and, while it does allow you to be somewhat more detailed with the search terms, for some search terms this still does not reduce the number of results to a manageable level, due to some of the other difficulties described above. Unfortunately, the EUR-lex helpdesk was unable to help me to solve these problems, primarily because the solution lies in a reprogramming of EUR-lex itself (for instance, so that it provides the context of the search term, like Google and others do).

In conclusion: the EUR-lex search engine is not suitable to do a search for certain terms. The term ownership, for instance, is found in approximately161 451 regulations and 126 directives; the term transfer is found in approximately 1896 regulations and 427 directives. Processing these results would either require an enormous amount of time, or a group of researchers. Different ways to do the search were therefore necessary. I decided to use EUR-lex only for terms that yield no more than 20 pages of results, containing a maximum total of 200 search results. Where the number of results exceeded 20 pages, I used Google as an alternative search engine. Google has a few important advantages over EUR-lex. Most importantly, Google displays the context in which the search term appears, making the selection process of relevant documents much quicker. Furthermore, Google provides a number of tools to conduct a very detailed search. It is possible to instruct Google to only search for results in EUR-lex, by including in the search ‘site:eur-lex.europa.eu’. By adding ‘intitle:“EN”’ the search results are restricted to documents whose webpage has EN in the title, meaning that you only get the English version of an EUR-lex document. Moreover, I added the phrase ‘having regard to’, because the preamble of a regulation or directive always starts with this phrase. Conversely, Google allows you to exclude certain terms – I chose to exclude ‘judgment of the court’ and ‘opinion of the advocate general’, given that I was only looking for regulations and directives. Finally, Google allows one to search for terms that appear close to each other in the text – the AROUND function. This function helped with searches for terms which otherwise, even in Google, simply rendered far too many results. ‘Possession’ rendered 1210 results in Google, i.e. 51 pages of search results. Taking into account that the vast majority of search results will either be using possession in a sense not relevant for property law, or will use

161Given that the search conducted for this chapter took place within a certain time frame – April 2010 until March 2012 – these numbers may have slightly changed since then.

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the term in a property law sense but not define it, they are a lot less relevant for the research than the handful of measures hidden in that jungle of search results that possibly do contain a definition of the term possession that is meaningful in the property law sense. When it proved impossible to go through all the search results – which was the case with possession and also with transfer – the next best thing was to try and find measures in which the term possession is defined. Looking at how regulations and directives are generally drafted, such a definition will either be found under the heading ‘definitions’ or in a sentence containing the words ‘shall mean’ or ‘shall in particular mean’. Google’s AROUND function makes it possible to search for possession not more than, say, 50 words removed from the word definitions. The search then includes ‘possession AROUND(50) shall mean’. The end result is a search term that, for example, looks like this: ‘[“in rem” AND “having regard to” site:eur-lex.europa.eu intitle: “en” – “judgment of the court” – “opinion of the advocate-general”].’162

Only one problem remained: copying several of the searches already conducted with EUR-lex in Google showed that not all search results that should come up, did come up. This appeared to be an indexing problem: anything not indexed by Google cannot be found. Having run this problem by a Google employee revealed that – for reasons unknown – some EUR-lex documents have been indexed by Google in their .pdf format only, not in their .html format. They sometimes do not show up in the search, because they do not always have EN in their title. The Google contact person suggested changing intitle:”EN” to inurl:”EN”, because the .pdf documents did have EN in their URL. This created more problems than it solved, however. The number of additional, irrelevant search results that show up because they contain the letters ‘en’ in their URL referring to something other than the English language version was entirely disproportional to the number of relevant search results missing because of this indexing problem. I therefore decided to leave the search query as before and accept the minute risk that the one regulation or directive containing a term which could not be searched with EUR-lex and which has actually been defined in a European-autonomous way did not show up in the search results.

While EUR-lex contains a very valuable, extensive database, often with documents going far back in time to the early years of the EU, difficulties with its search engine are not something that I alone have experienced in my research. Ronny Patz’s blog and the comments it has received163 is a testimony to the despair felt by many a researcher when trying to make sense of the EUR-lex search engine. In the end, most people – including myself – find themselves resorting to Google, which tends to deliver the sought after document much more easily. A Council document of 15 December 2010 entitled “New EUR-lex” indicates that EUR-lex is currently

162For possession, the search term would look like this: [“possession” AROUND(50) “shall mean” AND “having regard to” site:eur-lex.europa.eu intitle:”en” –“judgment of the court” – “opinion of the advocate-general”].

163<http://polscieu.ideasoneurope.eu/2011/01/13/the-quest-for-eu-documents-an-exemplary- journey/>.

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under revision.164 I wrote to the Council and suggested that they consider a Googlelike function for EUR-lex, which displays with each search result the sentence or paragraph in which the search term features. This function would enable a speedier selection of relevant search results than EUR-lex currently does because in EUR-lex one has to open and search in each individual search result for the sought-after term.

3.1.Language of the Search

The search was conducted in English, since that is currently the most commonly used working language of the EU.165 Sometimes, however, the wording of a provision was ambiguous. In such instances a comparison was made with, first of all, the French version, French being one of the original languages and still one of the primary working languages of the EU Institutions; and secondly, with the Dutch and German versions, both also being original languages. The results of the search will show that a wide variety of property law terminology is already being used in secondary EU legislation, albeit in different contexts. This chapter provides an overview of what terminology is used, how it is used and in what context and whether any definitions are given. From this overview conclusions will be drawn regarding the extent to which the EU legislature uses property law terminology and whether or not its use is consistent and coherent. These conclusions will form the starting point for Chapter 6, in which a framework for the future development of EU property law will be developed.

Each of the following sections analyses a property law term or group of terms as used in the Treaties and in secondary legislation. The searched terms have been printed in bold in the text, as well as in the quotations of legislation.

3.2.TEU and TFEU

The TEU does not contain any of the search terms in the list. The TFEU, on the other hand, does. Several provisions mention the term own or ownership, the most prominent of course being Article 345.166 Furthermore, Article 75 TFEU reads:

‘Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, [...], shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.’

It thus contains several of the search terms.

164Doc No. 17427/10, to be found at: <http://register.consilium.europa.eu/pdf/en/10/st17/ st17427.en10.pdf>.

165English has gradually taken over from French, which used to be the main working language. The CJEU forms an exception by still using French as the primary working language.

166‘The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership’ [emphasis added]; see Chapter 2. See also Art. 123(2).

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Property is the search term most often found. Apart from Article 345, it also features inter alia in Article 335:167

‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property.’

Other examples include Article 50(2)(e) which mentions ‘to acquire [...] land’;168 Article 64 which mentions real estate; Article 192(2)(b) again mentioning land;169 and Articles 318 and 321 both again mentioning assets. Neither Treaty contains any definitions of property law terms, however.

4.Defined Property Law Terms

4.1.Right in Re(m)/Real Right/Personal Right

The search for rights in re(m) led to a number of results, amongst others Regulation 593/2008/EC (‘Rome I’), Regulation 44/2001/EC (‘Brussels I’) and Regulation 207/2009/EC on the Community trade mark (codified version).170

The Rome I Regulation171 excludes from its scope of application contracts relating to rights in rem in immovable property; their validity is determined by the law of the country where the property is situated.172 The Regulation is silent on rights in rem in movable property. The Brussels I Regulation173 stipulates what is the competent court in matters relating to rights in rem in immovable property.174 It does not give a definition of rights in rem – neither does the Rome I Regulation – and is silent on rights in rem in movable property. The Commission’s proposal for the recasting of Brussels I,175 however, provides for a new provision concerning rights in rem and possession in movable property.176 Again, there will not be a definition of rights in rem.177 In addition, several authors have expressed the opinion, in response to the Green Paper and subsequent Proposal for the review of Brussels I, that the scope of the provision should only include rights in rem in

167The other articles are 36, 118, 207 and 262 TFEU, although in these articles the term is used in the sense of intellectual property (rights).

168Art. 50(2)(e) was also mentioned in Chapter 2 as a possible legal basis for rules of European property law.

169Art. 192 also forms the Legal basis for Dir. 2003/87/EC on greenhouse gas emissions and for Dir. 2004/35/EC on environmental liability.

170The term rights in re was found only once, in Dir. 2001/24/EC.

171Reg. 593/2008/EC on the law applicable to contractual obligations, [2008] OJ L 177/6.

172Preamble, at 27; Artt. 4(1)(c), 6(4)(c) and 11(5).

173Reg. 44/2001/EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1.

174Artt. 6(4) and 22(1).

175COM(2010) 748 final.

176Art. 5(3) of the Proposal: ‘The following courts shall have jurisdiction: [...] 3. as regards rights in rem or possession in moveable property, the courts for the place where the property is situated.’ For a detailed discussion of this proposed provision, see Franzina 2011.

177Cf Franzina 2011, p. 5.

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relation to tangible movable property and that rights in rem in intangible movable property should be excluded.178 The main argument put forth in this respect is that the connecting factor to determine which court shall have jurisdiction is the situs of the object and that the situs of intangible assets is difficult to establish.

While the Brussels I Regulation does not provide a definition of rights in rem, there is an ECJ judgment concerning the Brussels Convention – the predecessor to Brussels I – that makes the fundamental distinction between rights in rem and rights in personam. This case, Lieber v Göbel,179 revolved around the question, whether compensation for use of a dwelling after a failed property transfer was covered by the term right in rem under Article 16(1) of the Brussels Convention.180 The Court stated, in paragraph 14:

‘The difference between a right in rem and a right in personam is that the former, existing in an item of property, has effect against the whole world, whereas the latter can only be claimed against the debtor.’

This statement is based on the Schlosser Report, which first – in an EU context – described the difference between rights in personam and rights in rem.181 This characterization of rights in rem is repeated in the Vírgos/Schmit report.182 According to this report rights in rem have two characteristics, namely a direct and immediate relationship with the asset they cover independent of any relationship between the holder of the right in rem and another person; and an absolute nature meaning that they are enforceable erga omnes.183 The same characteristics of rights in rem are applied by the Court, not only in Lieber v Göbel but also in Webb v Webb184 and in Reichert.185 The latter two cases both concerned the Brussels Convention. According to these cases, the Brussels Convention – now the Brussels I Regulation – only applies to actions in rem that are based on a right in rem,186 i.e. actions

‘which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with the protection of the powers which attach to their interest’.187

Rights in rem are then described as ‘rights directly relating to the property which are enforceable against the whole world’.188

The distinction between rights in rem and rights in personam presupposes the existence of a numerus clausus – or closed list – of property rights. Rights in rem,

178Franzina 2011, p. 8-10; Dickinson 2009, at 50; Review of the Brussels I Regulation (EC 44/2001) – Comments from the United Kingdom, at 44.

179Case C-292/93, Norbert Lieber v Willi S. Göbel and Siegrid Göbel, [1994] ECR I-2535.

180Para. 8 of the judgment.

181Schlosser Report, [1979] OJ C 59/71, para. 166.

182See supra, Part I, section 1.3.

183Vírgos/Schmit report, at 103.

184Case C-294/92, Webb v Webb, [1994] ECR I-1733.

185Case C-115/88, Mario P.A. Reichert and others v Dresdner Bank, [1990] ECR I-27.

186Webb v Webb, para. 14.

187Reichert, para. 11.

188Webb v Webb, para. 15.

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