Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

Chapter 4

tenancies only to exclude them from the scope of application of the Regulation. It is noteworthy that this is the Regulation establishing a European Small Claims Procedure.229 According to Article 2(2)(g) of the Regulation, a European small claims procedure cannot be brought on matters concerning tenancies of immovable property. There are no directives mentioning tenancy or tenancies.

5.4.Estate/Fee Simple/Freehold/Leasehold

The search for the term estate returned a few hundred results, so the search was modified to reduce the number of results. A search was conducted for ‘real estate’ but that did not render any relevant results. Neither did the search for estate combined with the term land. A sample of the results based on the titles of the regulations and directives, and whether or not they indicate a potential link to property law, showed that the term estate is generally only used in the sense of assets/objects/property, not in the sense of ‘an estate in land’. The search for fee simple yielded no results; the search for freehold only one, namely Regulation 2909/2000/EC on the accounting management of the European Communities’ nonfinancial fixed assets:230

‘Article 7

Land and buildings

1. The heading “land and buildings” shall comprise property rights and similar entitlements as defined by the national legislation of the country in which the asset is located.

The following shall be regarded as land:

-bare ground,

-developed land,

-built-up land.

2. The following shall be regarded as buildings:

-freehold buildings of the Institutions,

-buildings in shared ownership with co-proprietors,

-fixtures within the meaning of paragraph 3.’

It is not clear from this provision what is meant with the term freehold; the term is only used but not defined or explained. The German version of the Regulation uses the phrase Gebäude im vollständigen Eigentum; the French version reads les immeubles dont les institutions ont la pleine propriété, and the Dutch version reads onroerende goederen die volledig eigendom zijn van de instellingen.

When searching for the term lease(hold), hundreds of search results came up which contained the term ‘release’. These search results were excluded. The remaining results mostly contained the term lease, but there are two regulations that use

228See, for instance, the Rome I Regulation and the Brussels I Regulation.

229Reg. 861/2007/EC, [2007] OJ L 199/1.

230[2000] OJ L 336/75.

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the term leasehold. See Regulation 1768/95/EC,231 which is an agricultural regulation:232

‘Article 4

The farmer […]

2. An 'own holding’ within the meaning of Article 14 (1) of the basic Regulation shall be considered to be any holding or part thereof which the farmer actually exploits for plant growing, whether as his property or otherwise managed under his own responsibility and on his own account, in particular in the case of leaseholds. The disposal of a holding or part thereof for the purpose of exploitation by others shall be regarded as transfer within the meaning of paragraph 1.’

The term lease is defined in Regulation 1120/2009/EC233 – also an agricultural regulation – as follows:

‘Article 2

Definitions […]

(f) “lease” means lease or similar types of temporary transactions;’

This definition does not tell us much, other than that lease is considered to be a temporary transaction. The French version of this provision reads bail: le bail ou toute autre transaction temporaire du même type, the German version reads Pacht: Pacht oder ähnliche Arten von befristeten Geschäften, and the Dutch version reads (ver)huur: (ver)huur en daarmee vergelijkbare soorten tijdelijke transacties.

The search for these four terms – estate, fee simple, freehold, lease(hold) – shows that, while they are used in EU legislation (with the exception of the term fee simple), they are not given a European-autonomous definition, nor does the context in which they appear provide much information about how they should be interpreted. What can be noted is that the term lease(hold) is used particularly often in regulations on agricultural policy, although it also appears in measures concerning accounting standards or financial institutions.234

231[1995] OJ L 173/14.

232The other Regulation using the term leasehold is Reg. 318/2006/EC, Annex V, Point I: ‘For the purposes of this Annex […](d) “lease of a factory” means the leasehold contract of a technical unit including all the plant required for the manufacture of sugar, with a view to its operation, concluded for a period of at least three consecutive marketing years, which the parties agree not to terminate before the end of the third marketing year, with an undertaking which is established in the same Member State, as the factory concerned, if, after the lease takes effect, the undertaking which rents the factory can be considered a solely sugarproducing undertaking for its entire production.’

233[2009] OJ L 316/1.

234See e.g. Dir. 2006/48/EC relating to the taking up and pursuit of the business of credit institutions (recast), or Reg. 1606/2002/EC on the application of international accounting standards.

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5.5.Trust/Beneficiary

Searching for the term beneficiary was complicated by the fact that that term is mostly used in the sense of recipient (i.e. the beneficiary of an insurance policy) but not in the sense of a beneficiary of a trust. The term beneficiary was therefore combined with the term trust to limit the search to relevant results. A notable result was the Brussels I Regulation235 which uses the term beneficiary in its English law meaning:

‘Article 5

A person domiciled in a Member State may, in another Member State, be sued: […]

6. as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled;’

The French version uses the terms fondateur, trustee, bénéficiaire and trust; the German version uses the terms Begründer, trustee, Begünstigter and trust. Neither seem to be linked to the French or German ‘version’ of the trust, being the fiducie and the Treuhand. They are only a translation of the English concepts.

The term trust itself can furthermore be found in a number of regulations and directives. One interesting example is the Rome II Regulation on the law applicable to non-contractual obligations:

‘Article 1

Scope […]

2. The following shall be excluded from the scope of this Regulation: […]

(e) non-contractual obligations arising out of the relations between the settlors, trustees and beneficiaries of a trust created voluntarily;’

In this Regulation the term settlor is translated into French as constituant, as opposed to fondateur, which was the translation used in the Brussels I Regulation. The German version here uses the terms Verfügenden and Treuhändern, as opposed to Begründer and trustees used in Brussels I. These terms used in the French and German versions of Rome II are more in line with the terminology used in French and German law concerning the fiducie and the Treuhand. The Rome I Regulation uses the same terms as the Rome II Regulation. This means that, of these three principal regulations in the field of EU private international law, Rome I and II are consistent with each other and with national law, but Brussels I deviates from Rome I and II and uses terms that may not be as easy to implement for national legislatures.

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5.6.Numerus Clausus and Limited Property Rights

At the outset, it must be noted that the search for the term numerus clausus did not yield any results. The search for specific limited property rights, such as usufruct and emphyteusis, yielded only a few results as far as the limited property rights to use are concerned. The term servitude cannot be found in any regulation or directive, nor can the term restrictive covenant; the term easement is mentioned only once, in Directive 88/361/EEC.236 The term superficies was not found in any regulation or directive. The term usufruct is used in Regulation 1248/2006/EC237 and in Directive 88/361. Regulation 1248/2006 amended a previous regulation and, in fact, the term usufruct was added through this amendment. Directive 88/361 states:

‘EXPLANATORY NOTES

For the purposes of this Nomenclature and the Directive only, the following expressions have the meanings assigned to them respectively: [...]

Investments in real estate

Purchases of buildings and land and the construction of buildings by private persons for gain or personal use. This category also includes rights of usufruct, easements and building rights.’

The term usufruct is also used in Regulation 1200/2009/EC, which is an agricultural Regulation,238 and in Regulation 1444/2002/EC, also an agricultural regulation.239

Although the term emphyteusis as such cannot be found, remarkably, Directive 72/160/EEC240 speaks of emphyteutic lease. This is the only time that this term is mentioned:

‘Article 5

1. At least 85% of the utilized agricultural area released by persons benefiting under the measures provided for in Article 2(1)(a) and (b) must either: (a) be leased for a minimum period of twelve years, or convey in absolute ownership or by way of emphyteutic lease, to farmers benefiting from incentives given under Article 8 of the Directive on the modernization of farms; [...].’241

236[1988] OJ L 178/5.

237[2006] OJ L 227/3, amending Reg. 2342/2002/EC: ‘29. In Article 116, paragraph 1 is replaced by the following:

‘1. Building contracts cover the purchase, long lease, usufruct, leasing, rental or hire purchase, with or without option to buy, of land, existing buildings or other real estate.’

238[2009] OJ L 329/1. Annex II, 5.01.01: ‘The holder can own the holding outright or rent it or be a hereditary long-term leaseholder or a usufructuary or a trustee.’

239[2002] OJ L 216/1. This Regulation uses the exact same sentence as Reg. 1200/2009; see previous footnote.

240[1972] OJ L 96/9.

241Dir. 72/160/EEC concerning measures to encourage the cessation of farming and the reallocation of utilized agricultural area for the purposes of structural improvement

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In the French version, the equivalent to emphyteutic lease is emphytéose. The same French term was used earlier for the English ‘heritable long-term lease’.242

5.6.1. Security Rights

Security rights are mentioned quite a lot more often than limited property rights to use. I will therefore highlight the more interesting examples.

The term pledge features, for instance, in Regulation 108/2006/EC amending Regulation 1725/2003/EC adopting certain international accounting standards:243

‘Collateral

14. An entity shall disclose:

(a)the carrying amount of financial assets it has pledged as collateral for liabilities or contingent liabilities, […] and

(b)the terms and conditions relating to its pledge.’

Hypothec does not yield any results but mortgage does.244 A particularly striking example can be found in Regulation 2454/93/EC implementing Regulation 2913/ 92/EC establishing the Community Customs Code:245

‘Article 857

1. The types of security […], within the meaning of Articles 193, 194 and 195 of the Code, […] shall be as follows:

(a)the creation of a mortgage, a charge on land, an antichresis or other right deemed equivalent to a right pertaining to immovable property;

(b)the cession of a claim, the pledging, with or without surrendering possession, of goods, securities or claims or, in particular, a savings bank book or entry in the national debt register; […]’

This provision lists a number of security rights in relation to immovable property, as well as in relation to movable property, including claims. The use of the term antichresis (or antichrèse in the French version) was unexpected. It used to be a French security right – a charge on land by which the owner of an immovable object transfers the enjoyment of that object to a creditor allowing him to receive the revenues of the immovable up to the point where the value of those revenues repays the debt owed by the owner to the creditor – under Article 2072 of the Code Civil. It was altered by Loi No. 2009-526 of 12 May 2009 and is now called gage immobilier (or charge on land).246

242See supra, section 5.3. Tenure/tenancy.

243[2006] OJ L 24/1.

244In the French version, mortgage is generally translated as hypothèque.

245[1993] OJ L 253/1.

246Art. 2373 French civil code. See also: <http://www.dictionnaire-juridique.com/definition/ antichrese-ou-gage-immobilier.php>.

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Another interesting aspect of Article 857 of the Regulation is that it mentions the possibility of pledging goods with or without surrendering possession. It would seem from this provision that the acquis accepts not only the traditional possessory pledge but also the non-possessory pledge.

When searching for the term lien, a large number of search results turned out to be irrelevant but nevertheless came up because they contained the term client. After excluding all results containing the word client, only a handful of regulations and directives was left containing the term lien.

The term lien can inter alia be found in Directive 98/26/EC on settlement finality in payment and securities settlement systems:247

‘[W]hereas collateral security is meant to comprise all means provided by a participant [...] to secure rights and obligations [...], including repurchase agreements, statutory liens and fiduciary transfers.’

It is furthermore used in all regulations concerning restrictive measures against a particular country.248

The term charge was difficult to search for, particularly because it can be both a noun and a verb that has a property law sense but also because of its colloquial meaning of either fee or authority. The search was therefore broken down into three sub-searches. EUR-lex was used to search for ‘floating charge’ and to search for ‘fixed charge’, neither of which returned any results in regulations or directives. A search in EUR-lex for charge WITH assets, on the other hand, returned too many results. The latter search was therefore repeated in Google. The Google search showed that the term charged is mostly used as ‘in charge of’ or ‘free of charge’. There was only one result which was relevant from a property law point of view, namely Directive 95/18/EC.249 The Annex to this Directive reads under I:

‘1. Financial fitness will be verified by means of an undertaking's annual accounts […] Detailed particulars must be provided, in particular on the following aspects: […]

(e) charges on an undertaking’s assets.’

In conclusion, Directive 95/18 provides the only information that the acquis uses the term ‘charge’ in a property law sense. The acquis does not use floating charge or fixed charge specifically but only pledge, mortgage and lien.

247[1998] OJ L 166/45; Preamble, Recital 9.

248See e.g. Reg. 965/2011/EU amending Reg. 204/2011/EU concerning restrictive measures in view of the situation in Libya, [2011] OJ L 253/8, Art. 1(5): ‘Article 8 is replaced by the following: “Article 8 […]

(a) the funds or economic resources in question are the subject of a judicial, administrative or arbitral lien […] (b) the funds or economic resources in question will be used exclusively to satisfy claims secured by such a lien”’.

249Directive on the licensing of railway undertakings, [1995] OJ L 143/70.

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5.7.Movable/Immovable

Often, when the term immovable (property) is used, it is used to indicate that rights relating to immovable property are excluded from the scope of application of the measure. A good example is Directive 97/7/EC on distance contracts:250

‘Article 3:

1. This Directive shall not apply to contracts: […]

- concluded for the construction and sale of immovable property or relating to other immovable property rights, except for rental, […]’

See also Directive 2008/48/EC on credit agreements for consumers,251 which excludes both credit agreements relating to rights in immovable property as well as credit agreements relating to rights in movable property:

‘Article 2:

[…] 2. This Directive shall not apply to the following:

(a)credit agreements which are secured either by a mortgage or by another comparable security commonly used in a Member State on immovable property or secured by a right related to immovable property;

(b)credit agreements the purpose of which is to acquire or retain property rights in land or in an existing or projected building; […]

(k) credit agreements upon the conclusion of which the consumer is requested to deposit an item as security in the creditor's safe-keeping and where the liability of the consumer is strictly limited to that pledged item; […]’

The new Timeshare Directive can also be mentioned as an example.252 Its exclusion of immovable property is a reflection of the fact that, while timeshare has property law elements particularly under English law, the Directive only regulates the contractual side of timeshare agreements; it does not deal with any property law matters.253 This is also the reason why it is not discussed in the first part of this chapter on substantial EU property law.254

250[1997] OJ L 144/19.

251[2008] OJ L 133/66; repealing Dir. 87/102/EEC.

252Dir. 2008/122/EC, [2009] OJ L 33/10. Art. 2 states: ‘This Directive is without prejudice to national legislation which: [...] (b) relates to the registration of immovable or movable property and conveyance of immovable property.’ See also Dir. 2002/65/EC, [2002] OJ L 271/16 concerning the distance marketing of consumer financial services, Art. 6(3): ‘Member States may provide that the right of withdrawal shall not apply to:

(a)any credit intended primarily for the purpose of acquiring or retaining property rights in land […], or

(b)any credit secured either by mortgage on immovable property or by a right related to

immovable property.’

253Sagaert 2007, p. 329: ‘De richtlijn beheerst enkel de contractuele aspecten, terwijl de goederenrechtelijke aspecten niet aan de orde zijn. Reden hiervoor is dat het juridische karakter van de rechten van deeltijds gebruik sterk verschilt van lidstaat tot lidstaat, en er op

à

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Other interesting examples of EU legislation containing the term movable can, inter alia, be found in Regulation 2909/2000/EC255 on the accounting management of the European Communities’ non-financial fixed assets,256 and in Directive 1999/34/EC257 amending Directive 84/386/EEC on product liability.258

5.8.Tangible/Corporeal

The term (in)corporeal is only used in two directives, one of which is Directive 2005/60/EC on the prevention of money laundering and terrorist financing:259

‘Article 3

For the purposes of this Directive the following definitions shall apply: [...]

(3) “property” means assets of every kind, whether corporeal or incorporeal movable or immovable, tangible or intangible, and legal documents or instruments in any form including electronic or digital, evidencing title to or an interest in such assets; [...]’

The term (in)tangible is used more often. To reduce the number of search results the combinations ‘tangible evidence’, ‘tangible contribution’ and ‘tangible criteria’ were excluded from the search. Directive 1999/44/EC on the sale of consumer goods260 uses the term tangible in the following way:

‘Article 1: Scope and Definitions […]

2. For the purposes of this Directive: […]

dat vlak geen overeenstemming tussen de lidstaten kon worden bereikt.’ See also Snijders 2006, p. 158.

254Apparently, there were three Member States, apart from those that were already familiar with timeshare in their national law, that implemented timeshare as a property right, namely Italy, Spain and Portugal: Rodriguez Murillo 2007, p. 82 and 85. If that were the case, the Timeshare Directive would have made an addition to the numerus clausus of those countries. I cannot say with certainty, however, that that was indeed the case. I have no knowledge of the Portuguese language, and while I was able to find the implementing legislation of Italy (Decreto Legislativo No. 79, GU No. 129 of 06-06-2011), I was unable to discern with my limited understanding of Italian whether or not this legislative act implemented timeshare as a property right. Spain has implemented the Directive in Ley 4/2012, Boletín Oficial del Estado (B.O.E.) nr 162/2012 of 07 July 2012 and Real Decreto Ley 8/2012, B.O.E. No. 66/2012 of 17 March 2012. My understanding of Spanish is better than of Italian but it was nevertheless not clear – at least to me – from these laws that Spain implemented timeshare as a property right.

255[2000] OJ L 336/75.

256Art. 7, Land and Buildings, s. 3: ‘Any item of movable property which is permanently and inseparably attached to a building (such as defined under the first and second indents of paragraph 2) shall constitute a fixture.’

257[1999] OJ L 141/20.

258Art. 1: ‘Directive 85/374/EEC is hereby amended as follows:

1. Article 2 shall be replaced by the following: “[…] For the purpose of this Directive,

‘product’ means all movables even if incorporated into another movable or into an immovable. ‘Product’ includes electricity”.’

259[2005] OJ L 309/15. Similarly: Dir. 91/308/EEC, [1991] OJ L 166/77, Art. 1.

260[1999] OJ L 171/12.

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(b) consumer goods: shall mean any tangible movable item, with the exception of:

-goods sold by way of execution or otherwise by authority of law,

-water and gas where they are not put up for sale in a limited volume or set quantity,

-electricity; [...]’

Another interesting example is contained in Regulation 683/3008/EC on the further implementation of the European satellite navigation programmes (EGNOS and Galileo):261

‘Article 8

Ownership

The Community shall be the owner of all tangible and intangible assets created or developed under the programmes, to which effect agreements shall be concluded with third parties, wherever appropriate, with regard to existing ownership rights.’

The terms tangible/intangible are normally used in English law. The terms corporeal/incorporeal are not used in English law but are translations used by comparative lawyers of the civil law terms (in)corporel/(nicht)körperlich. It can be seen in all regulations and directives containing anti-terrorist measures or concerning restrictions against a particular country that (in)tangible and (in)corporeal are used in the same sentence, probably because that sentence contains a catch-all definition of assets. Otherwise, as can be seen from the examples above, the use of the term (in)corporeal is rare – normally the term (in)tangible is used, which is in line with the terminology used in English law.

5.9.Lex Rei Sitae

The phrase lex rei sitae is technically not part of property law but private international law, being the conflict rule that decides the applicable property law. However, since the lex rei sitae rule was identified in Chapter 2 as one of the two causes of obstacles to cross-border trade involving matters of property law – the mandatory nature of substantive property law being the other cause – it has been included in the search conducted for this chapter.

The phrase lex rei sitae can be found in two directives,262 namely Directive 2002/47/EC on financial collateral arrangements and Directive 2001/24/EC on the reorganization and winding up of credit institutions.263 Directive 2002/47 mentions the lex rei sitae rule in its preamble:

‘(8) The lex rei sitae rule, according to which the applicable law for determining whether a financial collateral arrangement is properly perfected and therefore good against third parties is the law of the country where the financial collateral is located, is currently recognised by all Member States.’

261[2008] OJ L 196/1.

262The Insolvency Regulation mentions lex situs in its preamble.

263[2001] OJ L 125/15.

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The EU legislature here recognizes that the lex rei sitae rule is adhered to by all Member States and chooses not to deviate from it. In this context, the lex rei sitae is the applicable law to determine whether the financial collateral agreement – and the property rights resulting from it – has been validly created. The situs is the location of the financial collateral. Directive 2001/24 deals with the lex rei sitae rule in a slightly different manner:

‘Article 24

Lex rei sitae

The enforcement of proprietary rights in instruments or other rights in such instruments the existence or transfer of which presupposes their recording in a register, an account or a centralised deposit system held or located in a Member State shall be governed by the law of the Member State where the register, account, or centralised deposit system in which those rights are recorded is held or located.’

This provision does not deal with the applicable law determining the valid creation of a property right but with the applicable law determining the valid enforcement of proprietary rights. Article 24 only concerns proprietary rights that have to be recorded in a register of some sort. Whether and how they can be enforced is then governed by the law of the Member State where the register is ‘located’. In this context there is no physical situs because the objects – the ‘instruments’ as they are called by Article 24 – are incorporeal.264

The situs-rule is also adhered to in other legislation, although the literal phrase lex rei sitae is not always used. One example is the Insolvency Regulation which states in Article 8 that contracts relating to immovable property ‘shall be governed solely by the law of the Member State within the territory of which the immoveable property is situated’.265 The Insolvency Regulation is especially interesting because it determines what the situs of a given object is. According to Article 2(g), the situs for tangible property is the Member State within the territory of which the property is situated; the situs for property and rights, ownership of or entitlement to which must be entered in a public register, is the Member State under the authority of which the register is kept; and the situs for claims is the Member State within the territory of which the third party required to meet them has the centre of his main interests.

CONCLUSION

What conclusions can be drawn from all the data collected for this chapter as regards the formation of a system of property law at EU level? The contours of such a system are starting to become visible. Using the elements of the System-Cube as developed in Chapter 1, some search results say something about what are considered to be property rights – or rights in rem – at the EU level; some results tell

264The definition of these instruments can – in accordance with Art. 2 of Dir. 2001/24 – be found in Section B of the Annex to Dir. 93/22/EEC on investment services in the securities field; [1993] OJ L 141/27.

265Reg. 1346/2000/EC, [2000] OJ L 160/1.

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