Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

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5-7 of the Green Paper, which provide for a binding instrument. A measure based on Article 114 must have as its objective the establishment and functioning of the internal market. According to the ECJ’s well-known Tobacco judgment, a mere discrepancy between national laws is insufficient to merit regulation of the internal market.184 Rather, it must be shown that this discrepancy actually causes obstacles to intra-Union trade and that the proposed legislation will actually remove these obstacles, be they present or future.185 I refer to Chapter 3 for a more elaborate discussion of whether this is actually the case as regards diverging national property laws.186 The main argument – and an important difference to contract law

– is that parties are unable to circumvent diverging national property laws because choice of law is in principle not allowed in property law. It is therefore the mandatory nature of property law that causes obstacles to intra-Union trade. Depending on the exact content, a binding instrument providing rules of property law that can be relied on throughout the EU could remove such obstacles.

Article 81 TFEU can only be used for measures regulating cross-border trade, not for measures that also apply to purely internal situations.187 Given that I have argued that I would advocate a measure that also applies to purely internal situations,188 I would not be in favour of using Article 81 as a legal basis for a binding instrument.

Article 169(2) TFEU can only be used for measures regulating B2C transactions.189 As indicated before, the majority of cross-border problems in property law are experienced in B2B transactions.190 I would therefore also not propose to use this Article as a legal basis for a binding instrument in the area of property law.

Article 352 TFEU can only be used if action by the Union is necessary to attain one of the objectives set out in the Treaties.191 One of the Treaties’ primary objectives is the establishment or functioning of the internal market.192 Options 5 and 6 of the 2010 Green Paper might fulfil that requirement but Option 7 – a European Civil Code – would contain other rules that are not necessarily aimed at regulating free movement or competition and would thus go beyond the pursuit of the establishment or functioning of the internal market.193 Furthermore, as a point on subsidiarity, Article 352 may only be used if the Treaty provides no other legal basis. Given that Article 114 is already a likely legal basis for a binding instrument – provided that the requirement of approximation is fulfilled – Article 352 may not serve as a legal basis for such an instrument.

Consequently, Article 114 seems to be the most suitable legal basis for a binding instrument as envisaged under options 5-7 of the 2010 Green Paper. For options 5 and 6, Article 352 may form an alternative legal basis, in case the

184Case C-376/98, Germany v Parliament and Council (“Tobacco I”) [2000] ECR I-2247.

185See Chapter 3, section 8. Legal basis.

186Chapter 3, section 8.

187See supra, section 6.1. Legal basis.

188See supra, section 4. Cross-border or purely internal situations.

189See Chapter 3, section 8. Legal basis.

190See Chapter 3, Final conclusions.

191Art. 352 TFEU.

192Art. 3(3) TEU and Art. 26 TFEU.

193Basedow et al. 2011, p. 26.

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requirements of Article 114 are not met, but this is not a possibility for Option 7 of the Green Paper, as a European Civil Code would include rules that pursue other objectives than the ones set out by the Treaties.

7.2.Regulation or Directive

Policy Option 5 entails a minimum harmonization directive; policy Option 6 entails a regulation replacing national laws with a uniform set of European rules. As stated in the introduction, a regulation may be preferable over a directive, for a regulation would apply uniformly throughout the EU and be directly applicable. Not only would this circumvent the private international law problems encountered by an optional instrument,194 but it would also remove the discrepancies between the laws of the Member States. Due to differences in implementation of a directive, new discrepancies between the laws of the Member States might arise. A study performed by Vogenauer and Weatherill on the perceived effects of differing national legislation in the area of contract law on cross-border trade shows that this can be a real problem. This study, in which Vogenauer and Weatherill acted as ‘academic advisors’ to Clifford Chance,195 was conducted as a follow-up to the consultation process started by the Commission with its 2001 Communication on European Contract Law.196 In their opinion, by 2005, the questions resulting from the Commission’s consultation process were not yet sufficiently answered. The Clifford Chance study was a renewed attempt to provide answers to these questions. One of these questions was whether

‘the existing piecemeal approach to European legislation in contract law [was] sufficient to remove such obstacles [to cross-border trade], or [whether] it rather [created] further difficulties, such as an inconsistent application of European law in the various Member States’.197

The results of the survey showed the following:

‘Six out of ten respondents had experienced significant differences in the implementation and interpretation of directives across the Member States. [reference omitted] Almost two-thirds of those who had experienced such differences did not think that they impinged on their ability or desire to conduct cross-border trade. That still leaves approximately a third who are concerned by the issue, and even more so in Germany and in the UK [reference omitted].’198

Granted, this was a study on contract law, not property law, but there is no reason to assume that differing implementations of directives containing property law rules would not lead to similar problems.

194Supra, sections 6 and 6.3. See Basedow et al. 2011, p. 28.

195Vogenauer & Weatherill 2006, p. 117.

196COM(2001) 398 final.

197Vogenauer & Weatherill 2006, p. 113.

198Vogenauer & Weatherill 2006, p. 128-129.

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On the other hand, directives have some advantages over regulations. Leaving a margin of discretion to the Member States as to how to achieve the ends of the directive may make it easier for them to incorporate it into their national system.199 A regulation may have a more disruptive effect on the coherence of the national system due to its direct application. As was shown in Chapter 2, when it comes to rules of European Union private law, Member States are protective of the coherence of their national system. Particularly in the area of property law, European Union rules may put pressure on the national numerus clausus, for instance, by introducing new, European-autonomous property rights. If such European property rights were introduced through a regulation, they would enter the national system of property law without the possibility for the Member States to incorporate them in the national numerus clausus. The Member States would have that possibility if the European property rights were introduced by way of a directive. Therefore, from a point of view of proportionality, directives may be preferred over regulations as the ‘less intrusive legislative device’.200 It must be noted, however, that the Protocol on the application of the principles of subsidiarity and proportionality to the Lisbon Treaty no longer mentions that directives should be preferred over regulations, as it did in the wording attached to the Amsterdam Treaty.201 Nevertheless, it must be taken into account that the costs of adapting various types of transactions – most of which will remain purely domestic – to the regulation may not outweigh the reduction of transaction costs envisaged by the regulation. Furthermore, a uniform regime would make regulatory competition impossible and would take away parties’ possibility to choose the law applicable to their transaction.202

Schulte-Nölke proposes a general framework directive on (consumer) contract law which would contain ‘a legislative reservoir of definitions and general rules’.203 Such a framework directive would form the basis for any future sector-specific directives. These directives – regardless of their specific content – would have to be based on the general definitions and rules laid down in the framework directive, thereby minimizing the patchwork of separate directives that currently exists in European private law. Such a framework directive could help create a more coherent European private law. In relation to property law, a framework directive could lay down certain principles and ground rules, such as the principle of numerus clausus or the nemo dat rule.204 It could also reflect some fundamental choices made by the EU legislature regarding rules on, for instance, the creation and transfer of property rights.205 With such a framework directive in place, future EU legislation creating, for instance, a European right of mortgage has a foundation to build on. It would be clear to Member States and private parties that Europeanautonomous property rights would always have to be created or transferred based on the system as opted for in the framework directive. Yet, in spite of these potential advantages of a framework directive, there are three disadvantages to it: firstly, as

199Johnston & Unberath 2010, p. 85-86.

200Hesselink, Rutgers & Booys 2007, p. 45-46.

201Basedow et al. 2011, p. 24.

202Basedow et al. 2011, p. 29.

203Schulte-Nölke 2010, p. 141.

204Cf the ‘classical model of property law’ as developed by Van Erp; Van Erp 2009b.

205See Chapter 6, Part II at 4. Operating rules and definition of terms.

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with any directive, it would be directed at the Member States who would be responsible for its implementation. Given the closed and mandatory nature of property law, and the sometimes substantial differences between the Member States’ property laws, implementation may result in a different application of the directive in different Member States. Secondly, the introduction of a framework directive on EU property law would undoubtedly spark a discussion on whether such a directive should entail minimum or maximum harmonization. The problems encountered around this issue during the drafting process of the new Consumer Rights Directive206 would undoubtedly also arise with regard to a framework directive on property law. Thirdly, and perhaps most importantly, the creation of EU property law by way of a framework directive and subsequent directives could lead to a fragmented approach to EU property law. Given that the property law acquis is already extremely fragmented,207 a more coherent approach to its future development would be preferable, if not strongly advisable.

7.2.1. Minimum or Maximum, Partial or Full Harmonization

If a choice were to be made to enact rules of European Union property law in the form of a directive, a choice must be made between minimum and maximum harmonization.208 Several authors have argued in favour of maximum harmonization.209 In the case of minimum harmonization, there is still an option for the Member States to go beyond the rules laid down by the European legislature, as long as they fulfil the minimum requirements imposed upon them. Even though, at the minimum level, the rules will be the same throughout the EU, beyond that level there will again be discrepancies. Minimum harmonization would therefore not solve the problems caused by differing national laws, as it does not take away these differences.210 Even though, in its 2010 Green Paper under policy Option 5, the Commission proposes a minimum harmonization directive, it does recognize the problem that minimum harmonization ‘would not necessarily lead to uniform implementation and interpretation of the rules’.211 On the other hand, the new consolidating the consumer acquis was originally proposed as a maximum harmonization directive212 but came under pressure for this reason from MEPs and a

206See infra, section 7.2.1. Minimum or maximum, partial or full harmonization.

207See Chapter 4 of this study.

208See supra, section 1. Explanation of terms.

209In general, not only for EU property law.

210Roth 2009, p. 41.

2112010 Green Paper, p. 10. The Commission also expressed this in earlier documents. See, for instance, Commission 2007 Green Paper on the Review of the Consumer Acquis, COM(2006) 744 final, p. 7; Commission Communication on Consumer Policy Strategy, 2002-6, COM(2002) 208, para. 3.1.2.2.: ‘For these directives, one of the key priorities for the Commission would be to propose full harmonization in order to minimize variations in consumer protection rules across the EU that create fragmentation of the internal market to the detriment of consumers and business.’ See also Basedow et al. 2011, p. 28.

212Maximum harmonization as meant in this Chapter: see section 1. Explanation of terms. Referred to by the European Parliament as ‘full harmonization’: Press Release of 17-03-2010, ref. no. 20100317IPR70798, to be found at: <http://www.europarl.europa.eu/sides/getDoc. do?language=nl&type=IM-PRESS&reference=20100317IPR70798>.

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number of Member States.213 This pushed the discussion towards so-called targeted maximum harmonization.214 The end result was that the Consumer Rights Directive does entail maximum harmonization,215 but it only replaces Directive 85/577/EEC on contracts negotiated away from business premises and Directive 97/7/EC on distance contracts. It does not replace Directive 93/13/EEC on unfair terms in consumer contracts and Directive 1999/44/EC on consumer sales, as was originally intended.216

Furthermore, a choice will also have to be made between full harmonization and partial harmonization,217 meaning that only certain aspects of property law are regulated (e.g. only the rules on security rights) rather than the whole of property law.218 On the one hand, it might be easier to find a proper legal basis for the harmonization of only a certain area, as opposed to an all-encompassing instrument, covering the whole area of property law. On the other hand, partial harmonization may disrupt the national system of property law more than a full harmonization of the area of property law would, given that it would replace only a part of the system, leaving the rest of the system to adapt to the new, European elements.219

7.3.European Civil Code

In theory, a binding instrument could also take the form of a European Civil Code, thereby fully unifying not just property law but also other areas of private law. The Green Paper discusses this as policy Option 7: Regulation establishing a European Civil Code.220 However, the feasibility and acceptability of such a Code is doubted for several reasons, as was inter alia indicated in the Max Planck Research Paper on the 2010 Green Paper:

‘A comprehensive European civil code appears to be practically unrealistic. Especially in relation to areas of the law that lack an internal market link, the competence issue arises. Preliminary work establishing a common European core in fields such as property, family law and the law of succession is far less advanced than with regard to contract law, or even entirely absent. Furthermore, political opposition from the Member States against a comprehensive civil code appears to be insurmountable. The

213European Parliament Press Release of 17-03-2010, ref. no. 20100317IPR70798.

214See an online post by Hector L. MacQueen, Eric Clive and Laura Macgregor of 16 January 2011 in ‘European Private Law News’, to be found at: <http://www.law.ed.ac.uk/epln/blog entry.aspx?blogentryref=8557>.

215Dir. 2011/83/EU on consumer rights, [2011] OJ L 304/64, Art. 4.

216MacQueen, Clive and Macgregor in ‘European Private Law News’, available at: <http:// www.law.ed.ac.uk/epln/blogentry.aspx?blogentryref=8557>.

217See supra, section 1. Explanation of terms.

218Van Gerven 2004, p. 508 where he summarizes the different harmonization methods.

219Full harmonization of the entire area of property law could still lead to disruptions where property law connects to other areas of law, such as insolvency law, matrimonial property law or the law of succession. The question then becomes whether disruptions at these border areas are more or less severe than disruptions within an area, in this case the area of property law. This will depend on the national system and how these different areas are linked to each other.

2202010 Green Paper, p. 11.

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Commission itself recognizes in its Green Paper that the justification for such a farreaching harmonization has not yet been established.’221

First, the EU may not have the competence for the kind of all-encompassing unification that a European Civil Code would be.222 Second, even if such a competence existed, a proposal to draft a European Civil Code would probably not pass the subsidiarity and proportionality tests.223 Third, the costs of unification through a European Civil Code may not outweigh its advantages and will not necessarily be less than the costs of maintaining the status quo.224 The ‘academic, political, administrative and judicial efforts to prepare, adopt, implement and apply comprehensive legislation’225 may lead to higher costs than the original costs one was trying to reduce or eliminate through harmonization in the first place. On the other hand, the costs of transitioning to a European Civil Code are of a temporary nature; the question in the end is whether the long term reduction in information costs and transaction costs of cross-border trade envisaged by a unification of private law in the EU can be offset against the costs of maintaining the status quo.226 The Impact Assessment accompanying the Proposal for a Common European Sales Law answers this question in the negative: ‘Therefore from a holistic perspective, taking all the costs (monetary or otherwise) into account these cost outweigh by far the benefits of the instrument.’227

8.International Agreement

A possibility for the future development of EU private law – be it contract or property law – not mentioned by the 2010 Green Paper is the possibility for Member States to conclude an international agreement in this area. Technically speaking, this would not be EU property law but European property law (or international property law, depending on the countries involved) since it would not originate from the EU. In that sense, it is not surprising that this was not mentioned as a policy option in the Green Paper.

221Basedow et al. 2011, p. 28; see also Schulte-Nölke 2010, p. 140: ‘[P]olitical and academic discussion shows that in many countries lawyers, businesses and consumers are not ready to give up their national laws in favour of a European code. Usually trust in national law, even if it is essentially just a transposition of European law, is much higher than in the case of directly applicable European legislation.’ See also Watson 2000, at para. VIII: ‘[I]t will be objected against a code of private law for the European Union that national pride and identity is much tied up with a system of national law. I understand. But then I would point out how much of a nation’s law – rules, institutions, concepts, structures – results from borrowing.’

222Keirse & Veder 2010, p. 6; Kenny 2006, p. 777; Van Gerven 2002, p. 157; Drobnig 1997, p. 492.

2232010 Green Paper, p. 11; Impact Assessment accompanying the Proposal for a Common European Sales Law, p. 51 – Policy option 5a; Keirse & Veder 2010, p. 52.

224Van Gerven 2002, p. 163.

225Van Gerven 2002, p. 163.

226Strese 2006, p. 200-201.

227SEC(2011) 1165 final, section 6: Comparative assessment of options.

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In case there would not be a legal basis to enact European rules of property law, an international agreement may be the only way to enact uniform measures.228 However, there is one possible, significant disadvantage to harmonizing European property law or indeed European private law in this way. I would agree with Müller-Graf, that:

‘[T]here is no basic obligation of any State to take part in any treaty-project to harmonize the national private law with a model set of rules. In consequence, the composition of the group of participating States may vary from convention to convention, thereby creating a complex and badly arranged private law situation when looked upon from the viewpoint of a common private law in the Community.’229

In other words, unless such an international agreement is concluded by the EU as a whole, the result will be a fragmented and unsystematic European property law. Another matter would be the interpretation of such a convention or conventions. Van Gerven suggests that any agreement concluded should contain a preliminary ruling procedure before the CJEU.230 While I would agree that that could ensure coherent interpretation of the international agreement(s), the practical execution may be problematic. The Courts already have a significant caseload to deal with without adding the task of interpreting international agreements concluded between Member States. Solving this problem by, for instance, creating a new court or extending the current courts would require a lot of resources,231 which Member States who do not participate in the international agreement may not be willing to provide.

A treaty concluded between France and Germany in 2010 shows that the creation of ‘European’ property law through international agreements may, in spite of the concerns just mentioned, nevertheless be an attractive option. Under the treaty, entitled Abkommen zwischen der Bundesrepublik Deutschland und der Französischen Republik über den Güterstand der Wahl-Zugewinngemeinschaft,232 a model matrimonial property regime can be chosen if the law of either Germany or France would apply to the matrimonial property regime.233

8.1.Enhanced Cooperation

The Treaties offer a potential framework for an agreement between the Member States, namely that of enhanced cooperation.234 Title III of Part Six TFEU and Article 20 TEU stipulate the procedure that Member States must follow to establish enhanced cooperation. The result is what is often termed a ‘Europe of two

228Van Gerven 2002, p. 173.

229Müller-Graff 2004, p. 84.

230Van Gerven 2002, p. 173.

231Van Gerven 2002, p. 173.

232To be found at: <http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/Abkommen_zwis chender_Bundesrepublik_Deutschland_und_der_Franzoesischen_Republik_ueber_den_Wah l_Gueterstand.pdf?__blob=publicationFile>.

233Article 1 of the agreement. See also Van Erp 2010b, p. 15.

234Formerly called closer cooperation: Usher 2002, p. 97.

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speeds’.235 Some Member States move forward in a particular area where other Member States do not wish to participate or are not yet able to participate. Closer cooperation, as introduced by the Treaty of Amsterdam,236 was never used as such but it does feature in the Protocol on the Schengen Acquis.237 Article 1 of the Protocol provides that the Member States to the Schengen Acquis ‘shall be authorized to establish closer cooperation among themselves in areas covered by provisions defined by the Council which constitute the Schengen acquis’. Furthermore, a form of closer cooperation can be seen in the context of Economic and Monetary Union (EMU). However, where closer cooperation is open to all Member States at any time on an opt-in basis,238 the EMU is in principle binding on all the Member States but they have the possibility to opt out for various reasons. These Member States are then referred to as ‘Member States with a derogation’.239 With the Treaty of Nice, the possibility for a Member State to veto closer cooperation was removed.240

Creating a ‘European’ property law by way of enhanced cooperation could have the disadvantage that it fragments the internal market.241 Article 326 TFEU stipulates that enhanced cooperation shall not undermine the internal market, constitute a barrier to trade or distort competition between the Member States.242 In the context of Article 114 as legal basis it is often argued that differences between national laws hinder intra-Union trade or distort competition and that harmonizing measures enacted on the basis of Article 114 are therefore justified. At first instance it would thus seem that enhanced cooperation could hinder intra-Union trade or distort competition since it leads to different rules for those Member States who participate and those who do not. However, the ECJ stated in its Tobacco judgment that not all differences in national laws amount to a hindrance of trade or a distortion of competition and that legislative action is only allowed if such a hindrance or distortion becomes ‘appreciable’.243 It could be deduced from this that enhanced cooperation would only breach Article 326 if the resulting differences in national laws had an appreciable effect on the internal market.

Despite the disadvantage of leading to a fragmented internal market, enhanced cooperation may be the only remaining option to move forward in a certain area. This may be the case if no legal basis is found and/or there is no

235E.g. Curtin 1995 as quoted by Weatherill 2010a, p. 628; Scharpf 2002, section 5.1.

236Usher 2002, p. 97.

237Protocol (No 19) to the Lisbon Treaty on the Schengen Aqcuis integrated into the framework of the European Union. See Usher 2002, p. 102.

238Art. 328(1) TFEU.

239Art. 140 TFEU; Usher 2002, p. 102-103.

240Usher 2002, p. 110-111. Art. K.12(2) of the Treaty of Amsterdam stated: ‘If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the granting of an authorization [for closer cooperation] by qualified majority, a vote shall not be taken. The Council may, acting by qualified majority, request that the matter be referred to the European Council for decision by unanimity.’

241Cf Scharpf 2002, section 5.1.

242Cf Curtin, who submits that enhanced cooperation should not be used for the so-called ‘hard core’ of Union law, ‘in particular not those policy areas which might impair the cohesion of the internal market’; Curtin 1995 as quoted by Weatherill 2010a, p. 630.

243Case C-376/98, Germany v Parliament and Council [2000] ECR I-8419, para. 29; Usher 2002, p. 99.

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political will amongst all the Member States to create an optional or binding instrument as described above. In time, this form of cooperation may lead to participation by most or all Member States. Some of the Member States may initially be sceptical, but the way in which the other Member States move forward under enhanced cooperation may ease some of that scepticism and lower the threshold for the others to join.

It is not easy to determine whether enhanced cooperation in the area of property law would actually impair the cohesion of the internal market because, as stated above, enhanced cooperation has never really been used before.244 It is only now – at the time of writing245 – that enhanced cooperation is being used for the first time, in two separate instances. Remarkably, one of those instances246 is an area related to general property law, namely international divorces.247 Fourteen Member States requested the Commission to propose legislation in this area, which it did, and on 20 December 2010 the Council approved the Commission’s proposal and adopted Regulation 1259/2010/EU implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.248 Countries wanting to join at a later stage are free to do so. The Regulation stipulates, among other things, that it has universal application, meaning that ‘[T]he law designated by this Regulation shall apply whether or not it is the law of a participating Member State.’249 This means that the Regulation could have consequences even for those Member States who are not currently participating in the enhanced cooperation.

This agreement on enhanced cooperation in international divorces was followed by proposals from the Commission for EU-wide rules to clarify the proprietary situation of international couples, yet another step closer to matters of general property law.250 The Commission’s 2010 EU Citizenship Report contains a list of 25 Actions to Improve the Daily Life of EU Citizens. Number 1 on the list states that the Commission ‘will make it easier for international couples […] to know which courts have jurisdiction and which law applies to their property rights

244Weatherill 2010a, p. 635; Scharpf 2002, section 5.1.

245May 2011.

246The other instance where enhanced cooperation is being used is the so-called unitary patent protection: see the Proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection, COM(2011) 215 final. For more information see also: <http://ec.europa.eu/internal_market/ indprop/patent/index_en.htm>.

247Press Release of 20 December 2010, ‘European Commission proposals to bring legal certainty to couples in cross-border marriages approved by EU ministers’, MEMO/10/695, to be found at: <http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/695&format=H TML&aged=0&language=EN&guiLanguage=en>.

248[2010] OJ L 343/10, Preamble, Recital 6.

249Reg. 1259/2010, Art. 4.

250Press Release of 16 March 2011, ‘Commission proposes clearer property rights for Europe’s 16 million international couples’, IP/11/320, to be found at: <http://europa.eu/rapid/press Re leasesAction.do?reference=IP/11/320&formate=HTML&aged=0&language=EN&guiLangua ge=en>; ‘Today’s proposals are the logical next step following the swift agreement last year on EU legislation to determine which country’s rules apply in cross-border divorce cases’.

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(e.g. a jointly owned house) by proposing a legislative instrument in 2011’ [emphasis added].251

In this instance, enhanced cooperation seems to have been a stimulant for further legislative action. According to a Press Release of 16 March 2011, the Commission will, amongst others, ‘enable married international couples to choose the law that applies to their joint property in case of death or divorce’ [emphasis added].252 Given that, in general, choice of law in property law is not permitted, or only to a very limited extent, it would be a very interesting development if the Commission proposals would go in that direction. This is indeed the case with the Regulation on international successions, which provides a person with a choice of law to govern his or her succession.253

9.Harmonization through Case Law

Harmonization of European property law through case law of the CJEU is certainly an option,254 although its desirability could be questioned. The method applied by the CJEU to solve cases when EU law does not provide an adequate solution is discussed in detail in Chapter 1. Its functional approach (i.e. ‘looking for common solutions’255 rather than common rules) makes it possible to overcome some of the differences that exist at the national level. Furthermore, the way in which judgments are prepared shows that the Court does not operate in a vacuum. Before the Court gives a judgment, its research department will prepare internal memoranda, thoroughly analysing the national legal systems.256 Moreover, extensive (comparative) research also tends to go into the Advocate General’s Opinion.257 These preparatory works can ensure that the judgment given by the Court in the end will not unnecessarily upset the national legal systems but will rather fit into them relatively easily.

A downside to harmonization through judgments of the CJEU is that the Court will have to wait until a relevant case comes up or until it is asked for its opinion. When a case does come up, it is limited to its particular circumstances and it may therefore be difficult to formulate general rules or principles.258 Overall, harmonization through case law is more likely to be piecemeal than to be coherent,

251EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights, Brussels 27.10.2010, COM(2010) 603 final, p. 24.

252Press Release entitled ‘Commission proposes clearer property rights for Europe's 16 million international couples’; doc. no. IP/11/320.

253Reg. 650/2012/EU,[2012] OJ L 201/107, Art. 22(1): ‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.’

254See e.g. Hartkamp 2011.

255Van Gerven 2004, p. 516. Van Gerven is optimistic: ‘Because of the multi-national composition of the Community Courts, it is very likely that they will succeed in “fashioning” an underlying principle which fits sufficiently well with the legal systems of the Member States, even those where the principle was unknown, or differently formulated.’

256Van Gerven 2004, p. 518.

257Van Gerven 2004, p. 518-519.

258Cf Micklitz 2009, p. 46.

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