Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

Chapter 5

even if the Court would wish to build a coherent system.259 The CJEU will only create European private law where it has the authority to do so based on the Treaties.260 Harmonization through case law will thus only occur within the limitations of the Treaties. The Treaties do not contain a general competence for the Union in the area of private law261 and so the CJEU is limited in its judgments to the specific issue-areas with regard to which it has been established that the Union has competence.262 Particularly in light of the argument often voiced by national property lawyers and Member State governments that European property law rules could damage the coherence of the national system,263 harmonization through case law may not be the best option because it does not offer a coherent system.

FINAL CONCLUSIONS

This chapter explored the possible forms in which future EU property law could be shaped. The chapter has been structured along the same lines as the Commission’s 2010 Green Paper on policy options for progress towards a European Contract Law for consumers and businesses. As argued in Chapter 3 of this study, it is not just the differences between the substantive rules of property law of the Member States that cause obstacles to the internal market but, in particular, the combination of these differences with the private international law rule of lex rei sitae. This chapter therefore first addressed the possibility of replacing the lex rei sitae with a different PIL rule in order to find out whether some of the internal market problems could be solved in this way, before looking at the different options for the creation of substantive EU property law. I concluded that if EU measures of PIL are considered as a replacement for the lex rei sitae rule, they must be applied uniformly throughout the EU. Even then, a change of the PIL rules in itself cannot solve all the hindrances to free movement that occur when property rights (or the people or companies holding them) cross borders. Additional, substantive rules of EU property law are necessary.

A preliminary point that must be discussed for any instrument – and is discussed by the Commission in the Green Paper as well – is the question whether the instrument should only apply in cross-border situations or also in purely domestic situations. I would submit that it should be available in both situations. If it were available for cross-border situations only, a situation of reverse discrimination would arise: parties doing cross-border business would be able to make use of a European regime that would not be available for parties doing business in a purely internal situation. Furthermore, parties doing business both in a purely internal setting as well as cross-border would still be subject to two different legal regimes, a situation which any future instrument of EU property law would be meant to remedy.

259Van Gerven 1998, p. 92.

260Van Erp 2001, section 4 ‘Comparing and concluding remarks’.

261Ibidem.

262Art. 5(2) TEU (ex Art. 5 EC) lays down the principle of conferral.

263See on this argument concerning the coherence of the national system of property law Chapter 2, section 7. Justification grounds.

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Options for the Future Development of EU Property Law

Next to the three soft law options from the Commission’s 2010 Green Paper, there are two other non-legislative forms: future EU property law could be shaped by way of an international agreement – possibly in the form of enhanced cooperation – or through case law of the CJEU. While these options may be less intrusive from the point of view of the national systems of law than the hard law options, they all share the disadvantage of not removing the discrepancies between the national laws that cause hindrances to the internal market. The hard law, legislative options for EU property law can lead to one of two scenarios: either the legislation is binding and replaces national property law or it is optional and exists next to the national systems of the Member States. In the latter case, the European legislation would constitute a 28th system of property law next to the national systems,264 or, from the point of view of property law, a second system next to a party’s own national system. In property law, choice of law is not generally possible, meaning that parties cannot choose the law of another Member State as the applicable law. With an optional instrument, the choice would therefore be between either the party’s own national law or the European regime.

The option of introducing binding legislation is subdivided in the Green Paper in three versions: a minimum harmonization directive; a regulation; or a European Civil Code. Article 114 could form a legal basis for a directive or a regulation but not for a European Civil Code. An all-encompassing code would go beyond the scope of the Treaties. A minimum harmonization directive is not to be recommended because it would not remove the discrepancies that currently exist between the Member States’ laws and that cause the obstacles to the internal market. In that regard, a regulation would be the better option. It must be noted, however, that a regulation would completely replace the national rules, which could be a highly costly operation and possibly an unnecessary one, given that the majority of transactions will remain purely internal and can be concluded on the basis of national law. A framework directive may be a better alternative. Such a framework directive could contain general principles of property law and systematic choices about rules such as those concerning the creation and transfer of property rights. The Member States would implement the framework directive, after which the EU legislature could use it as the basis for future rules of EU property law, such as the creation of a European right of mortgage or pledge.

Policy Option 4 of the Green Paper – a regulation containing an optional regime as an alternative to the national regimes – is currently the preferred option.265 The proposed Regulation for a Common European Sales Law will, if it becomes law, constitute an optional instrument which can be chosen by parties as an alternative to national contract law. The most suitable legal basis for such an optional instrument would seem to be Article 352, although the proposed Regulation on a CESL has been based on Article 114. It is not completely certain that Article 114 can be used, however, because an optional instrument does not lead to approximation of the laws of the Member States.

264As indicated above, it would actually be a 29th system or more, given that several Member States contain more than one national legal system; see supra, at note 86.

265Basedow et al. 2011, p. 71.

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From the point of view of proportionality, an optional instrument may be the less far-reaching measure as opposed to a mandatory instrument.266 It leaves the national systems intact and provides an alternative to contracting parties. The introduction of an optional instrument could help to establish whether there is truly a need for European legislation for cross-border transactions involving property law. How often the instrument would be chosen as the applicable law could be an indication of its quality and its attractiveness to the end-users. Moreover, the parties’ choice for this instrument would provide it with a degree of legitimacy which a binding instrument, ‘forced’ upon the parties, might not have. There are already some examples of optional instruments that illustrate how optional regimes work, such as the Societas Europaea267 and the Community trade mark268 and Community designs.269

In conclusion, the optimal form for the development of future EU property law would be the following: first of all, the implementation of a framework containing basic principles, definitions of property law concepts and ground rules. Thereafter, an optional EU regime of property law, available for both cross-border and internal situations, could be embedded within this framework. The fact that such a regime would be directly applicable in all the Member States would greatly reduce the need to change the PIL rule of lex rei sitae.

The next and final chapter will be devoted to the content of future EU property law. The first part of the chapter will summarize the existing EU property law, based on the results of the research conducted for Chapter 4. The System-Cube, as developed in Chapter 1, will be used to visualize the status quo of EU property law. The second part of the chapter will take as its starting point the conclusion reached in Chapter 5 that an optional instrument would be the best way forward to develop EU property law. A proposal will be made in the final chapter as to what the content of such an optional instrument could and should be, encompassing issues like the creation of European-autonomous property rights and the development of a European operating system governing those rights.

266Schulte-Nölke 2010, p. 144.

267Reg. 2157/2001/EC on the Statute for a European company (SE), [2001] OJ L 294/1, Preamble at 6: ‘[P]rovision should be made for the creation, side by side with companies governed by a particular national law, of companies formed and carrying on business under the law created by a Community Regulation directly applicable in all Member States.’

268Reg. 207/2009/EC on the Community trade mark, [2009] OJ L 78/1, Preamble at 4: ‘In order to open up unrestricted economic activity in the whole of the internal market for the benefit of undertakings, trade marks should be created which are governed by a uniform Community law directly applicable in all Member States.’

269Reg. 6/2002/EC on Community designs, [2002] OJ L 3/1, Preamble at 4 and 5: ‘The effect of design protection being limited to the territory of the individual Member States […] leads to a possible division of the internal market […] and hence constitutes an obstacle to the free movement of goods. This calls for the creation of a Community design which is directly applicable in each Member State’.

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Chapter 6

A FRAMEWORK FOR EUROPEAN UNION PROPERTY LAW

INTRODUCTION

The purpose of this study has been twofold: mapping out the landscape of the acquis communautaire in the field of property law, in other words EU property law,1 and proposing a framework for its future development. The reasons for conducting this research were first of all that the differences between the national systems of property law and their closed nature cause, or have the potential to cause, obstacles to the internal market,2 and secondly that the (lack of) developments in EU property law were significantly out of step with the rest of EU private law, in particular with EU contract law.3 Chapter 1 set out how the research was going to be conducted: by developing a standardized model – which I have called the System-Cube model – which describes the characteristics of a system of property law and by using that model to demarcate the field of EU property law. Chapter 2 showed in what way the differences between the national systems of property law (potentially) create obstacles to the internal market and how the four freedoms4 affect national property law. Given the potential obstacles to the internal market, the EU may have the competence to enact legislation to remove these obstacles. Chapter 3 explored whether and to what extent the EU has the competence to legislate in the area of property law, paying particular attention to Article 345 TFEU which, at first glance, seems to preclude legislative action in the field of property law. Chapter 4 showed to what extent the EU has already legislated in the area of property law. It covered not only substantive EU property law but also whether and to what extent the EU legislature uses property law terminology. The research conducted for Chapter 4 showed that the substantive rules of EU property law are scattered over a number of instruments, which do not

1For the difference between EU property law and European property law, see Chapter 1,

Introduction.

2See Chapter 2 for a detailed explanation how these obstacles flow from the different national systems of property law, and what these obstacles consist of.

3See for a more detailed description of the reasons for conducting this study Chapter 1, section 1, Reasons for the development of property law by the European Union.

4Free movement of persons, services, goods and capital.

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primarily purport to deal with property law but with different topic areas such as the return of stolen cultural objects or combating late payments. This is mainly caused by the competence-driven nature of European legislation.5 Chapter 4 also showed that the use of property law terminology by the EU legislature has so far been inconsistent and incoherent and often heavily reliant on national law for the interpretation of these terms. Chapter 5 explored the different options for the future development of EU property law. These options range from soft law, such as a Commission Recommendation, to hard law, such as a regulation replacing national laws with a uniform set of European rules. The conclusion of that chapter was that an optional instrument would be the best way forward for EU property law.

This chapter proposes a framework for future EU property law, laid down in a regulation as an optional instrument and consisting of three elements: operating rules6 for the creation and transfer of European property rights; substantive rules on European property rights which function within the operating rules created for that purpose;7 and a list of definitions of key terms, such as ownership, (im)movable, transfer. This chapter takes as a starting point the System-Cube model as developed in Chapter 1. The ‘blank’ version of this model shows the characteristics of a system of property law but it has not yet been filled in with information from any specific system of property law. In Chapter 1, this blank version of the model was filled in with information from several national systems to show how it functions and how it can be used. In this chapter, I again start with the blank version of the System-Cube model which is then filled in with the results from the research conducted for Chapter 4. This will show the status quo of EU property law. From there on, the optional instrument on EU property law can be developed.

Certain parts of the optional instrument will be inspired by national property law. The choice for three European-autonomous property rights is one example.8 This trichotomy will be founded on the functions fulfilled by national property rights. Other parts of the optional instrument will be based on existing EU property law and international property law, such as the Cape Town Convention on international interests in mobile equipment. When developing EU property law, national property law from the Member States is a useful source of inspiration. There is no need to deviate completely from national property law at EU level unless there is a specific reason for doing so, for instance, where the interests of the internal market would not be best served by staying too closely to national concepts of property law. Developing EU property laws that resemble national property laws can only help their acceptance by Member States. Having said that, EU property law will inevitably serve different purposes than national property law and is therefore likely to encompass new and different rules and concepts.

5Chapter 1 at 2. The acquis method: defining EU property law.

6The term ‘operating rules’ was developed in Chapter 1 to describe those rules in property law that determine what one can and cannot do with a property right, how a property right can be created and transferred, etc. See Chapter 1, sections 2.2.1. and 2.2.2.

7Cf Kieninger 2004a, p. 666.

8See infra, Part II, section 2.

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PART I – STATUS QUO OF EUROPEAN UNION PROPERTY LAW

1.The System-Cube

Chapter 1 presented a method which makes it possible to establish what belongs to the European property law acquis and what does not. This method made use of the System-Cube model. The elements of the model were derived from comparative studies of national systems of property law in Europe.9 The practical application of the model was illustrated by filling it in with examples drawn from several national systems of property law.10 Subsequently, the model was used to select European legislation that dealt with property law, either substantially or terminologically. This legislation was thereafter described and analysed. In this chapter, the SystemCube model will be revisited to show the outcome of the analysis conducted in Chapter 4.11 Starting with a blank model (Fig. 1), the model will be filled in on the basis of the results from the search conducted with the list of search terms12 to show what the European system of property law currently looks like (Fig. 2). To clarify up front: the model is fed with the results from the search for terminology and substantive property law in the Lisbon Treaty and in secondary legislation as carried out in Chapter 4. The four freedoms as discussed in Chapter 2 cannot contribute to the EU version of the System-Cube, because they only affect national law. In other words, even though they are likely to affect the System-Cube model at the national level – as demonstrated in Chapter 213 – they do not themselves contain new, European-autonomous, rules or concepts that could be reflected in the EU version of the System-Cube.

9Van Erp & Akkermans 2012; Van Erp 2009b; Hinteregger & Bori 2009; Akkermans 2008; Faber & Lurger 2008; Gretton 2007; Drobnig, Snijders & Zippro 2006; Van Erp 2006a; Van Erp & Akkermans 2006; Von Bar 2000; Merrill & Smith 2000-2001; Van Vliet 2000; Rutgers 1999; Herfurth 1998; Kieninger 1996; Ginossar 1979; Honoré 1961; Hohfeld 1916-1917.

10See Chapter 1, section 2.2.3. Practical application of the System-Cube.

11An overview of the results is also included in the Conclusion to Chapter 4.

12See Chapter 4 at Part II, section 3. Searching for property law terms.

13Under the headings entitled The effect of the free movement of […] on national property law.

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OPERATING SYSTEM

Core: system of property rights

- CREATION - REGISTRATION

Figure 1. Blank System-Cube

Before filling in the model with the data acquired through the research done for Chapter 4, let us first briefly revisit the different elements that make up the SystemCube model. The model consists of a core – represented by the cube – and a framework of rules surrounding that core, which I have called the operating system. The operating system consists of the rules that govern property rights: rules on creation, transfer, registration and destruction and rules concerning the effects property rights have on third parties. The core consists of the system of property rights. The core and the framework together represent the system of property law. Whether or not a right is a property right is determined by the principle of numerus clausus. According to this principle the list of property rights available to parties is closed. Rights featuring in the numerus clausus, and which are thus property rights, all share the characteristics that they are rights in relation to an object, which can be invoked erga omnes. Rights that do not pass through the filter of the numerus clausus

– i.e. that do not have these characteristics – are not property rights.14 Once it is established that a right is a property right, the System-Cube can be applied to show what the right looks like and what the operating system looks like within which it functions.

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Every property right has three dimensions. The first dimension is the content of the right. This dimension gives information on the powers of the rightholder, whether they are extensive as, for instance, in the case of a right of ownership or whether they are more limited as, for instance, in the case of a right of pledge. The second dimension is the object in relation to which the property right can be held. Three different categories of objects are distinguished: immovables, movables and intangibles. Some property rights can be held in relation to each type of object, whereas other property rights can only exist in relation to one or two types of objects. The third dimension is the dimension of time. This dimension reflects the fact that property rights can be limited in time, as is, for instance, the case with a right of usufruct connected to the life of the usufructuary. It also reflects the fact that objects can be limited in time, as is, for instance, the case with emission rights, a new object of property law that was introduced by EU legislation.15

The following sections describe the status quo of EU property law using the System-Cube model. They start with the three dimensions of the core of the model and continue with the operating system that surrounds the core.

1.1.Dimension One: Content of Property Rights

EU legislation seems to maintain a list of property rights, and the distinction between more/most extensive rights and lesser/limited rights is there. One can see examples of the use of freehold or ownership of security rights, such as a right of pledge, and of rights of use such as a right of usufruct. In contrast to the dimension of objects, however,16 EU legislation seems to be borrowing heavily from national law. The content of rights is never defined and is thus left to be interpreted by the national implementing legislation. Only a functional description of ‘rights in rem’ is provided but there are no definitions of any specific rights in rem (i.e. no European definition of a pledge, a usufruct, a servitude etc.). How rights are dealt with depends on the context, the issue area of the measure, in which the right is mentioned. The measure may, for instance, be an agricultural, taxation, or antiterrorism measure. The purpose of anti-terrorism measures is, for instance, to prevent blacklisted persons from acquiring assets. In those measures it makes sense that rights in rem are defined as being capable of existing in relation to any type of object so that people suspected of terrorism cannot acquire or transfer rights in rem in relation to any assets. It can be said that the contours of a list of property rights are there, but the content of those rights cannot be established in a Europeanautonomous way with the information that is currently available in the acquis.

1.2.Dimension Two: Objects of Property Rights

EU legislation distinguishes between movable and immovable property and accepts both as being capable of forming the object of property rights. It also includes intangible property as an object of property rights. There seems to be a functional

15Dir. 2003/87/EC establishing a scheme for greenhouse gas emission, [2003] OJ L 275/32.

16See infra, section 1.2. Dimension two: Objects of property rights.

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approach: as long as things or assets have an economic value, they are deemed capable of forming the object of property rights, both of a right of ownership or freehold, as well as of limited property rights, most notably security rights. EU legislation also introduces new objects of property rights, often of an intangible nature, such as emission trading rights or the Community trade mark.

1.3.Dimension Three: Time

Given that the content of property rights is not defined in a European-autonomous way, it is difficult to say anything about the element of time in these rights. European legislation mentioning property rights relies on national law to fill in the content of these rights. Therefore, whether or not these rights are limited in time also depends on how these rights are defined by national law. As far as objects are concerned, however, EU legislation has introduced an object which is by nature limited in time, namely emission trading rights. Once emission trading rights have been used up – in other words, once the greenhouse gases that were allowed to be emitted under such a right, have been emitted – they seize to exist.

In light of the above, the European version of the core of the System-Cube, depicting the European system of property rights, looks like this:

Figure 2. EU System-Cube.

The dotted lines indicate the areas that have not yet been filled in or are insufficiently defined by the acquis to draw any definite conclusions.

2.The Operating System

The acquis currently only shows the very earliest beginnings of an operating system. The following sections describe to what extent there already are operating rules and what is still lacking.

2.1.Creation

There are examples in EU legislation that property rights can be created and a distinction is made between creation and transfer. There are no examples as to how

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