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belonged to the Englishman. In this instance, the nemo dat rule – according to which a person cannot transfer more rights than he or she has138 – prevents any other rights than the fee simple estate burdening the land from disappearing when the land is transferred to the Italian. This of course presupposes that the nemo dat rule would be part of EU property law. In my view, it should be since it is a ground rule generally underlying any system of property law.139 The remaining question is whether the conversion of the English fee simple into an EPR itself could cause any limited property rights resting on the land to be lost. Is an EPR a right which did not previously exist or is it a right which previously belonged to someone else?

The argument could go both ways. It could be said that conversion creates a new EPR, which is a right that did not previously exist. In that case, conversion would resemble original acquisition. It is important to keep in mind that original acquisition normally means that previously existing limited property rights are lost because the primary right on which their existence depended has been lost as a result of the original acquisition. It would therefore be dangerous to equate conversion with original acquisition because it could lead to abuse and fraud: a person could get rid of any number of limited property rights simply by converting his or her national primary right into a European Primary Right. This could and should not be the result of a European system of property law.

It could also be argued that an EPR is a right which did exist before but which is simply a conversion of a national primary right into a European Primary Right. In that case, conversion would more closely resemble derivative acquisition, meaning that conversion would not lead to a loss of the limited property rights that burdened the original national primary right.

A decision would have to be made whether or not the primary right can be used for management purposes (like the English trust and certain forms of the German Treuhand140 and the French fiducie)141 and for security purposes (like fiduciary transfers such as the German Sicherheitsübereignung142 and retention of title clauses). In that regard it must be noted that the Financial Collateral Directive has introduced security ownership. This can be taken as an indication that the use of the primary right for security purposes is a concept already known to the acquis communautaire. As regards the use of the primary right for security purposes by way of a retention of title, a decision would have to be made whether this could only be a simple retention of title, as is currently provided for under the Late Payments Directive,143 or whether it could also be an extended retention of title similar to a German Verarbeitungsklausel, which extends the title retention to products manufactured from the original goods.144

138Van Erp 2009b, p. 11.

139Van Erp 2009b, p. 19.

140Van Erp & Akkermans 2012, Chapter 6 at I.B The Fiduziarische Treuhand.

141Van Erp & Akkermans 2012, Chapter 6, Note 7 under excerpt 6.7 (FR).

142Van Erp & Akkermans 2012, Chapter 5, Note 2 under excerpt 6.76 (DE).

143Dir. 2000/35/EC. See Chapter 4, Part I section 1.7.

144Van Erp & Akkermans 2012, p. 499-505.

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5.1.1. Ownership in the Euratom Treaty

A primary right may already exist within EU law. The Lisbon Treaties do not contain any definition of ownership, nor do any measures of secondary legislation, but the ‘Community’s right of ownership’ is explicitly mentioned in the Treaty establishing the European Atomic Energy Community (Euratom).145 The question is whether or not this ‘right of ownership’ is a primary right such as the French droit de propriété, the German Eigentum, the Dutch eigendom, the English fee simple, etc. The first important feature of the Euratom Community’s ownership is that title to nuclear materials is vested in the Community, whereas Member States, persons and undertakings have unrestricted rights of use and consumption.146 Strictly speaking, this division between formal title and economic ownership is already a deviation from the unitary concept of ownership as adhered to by Member States with a civil law system.147 The Community’s title to nuclear materials has no economic content: Euratom cannot profit or lose from changes in value of nuclear materials.148 It cannot possess, use or dispose over nuclear materials and any liability for damages caused by nuclear materials falls on the holder of those materials (i.e. a Member State, person or undertaking – Article 87 Euratom), not on the owner.149 In fact, the only reason that ‘ownership’ of nuclear materials has been vested in the Community is so that it can execute safety control over these potentially very dangerous materials. It follows from Article 86(2) Euratom that the Community’s ownership of nuclear materials is dependent on the existence of safety control.150 This safety control is executed through the Agency.151 As soon as nuclear materials enter Euratom territory, the Community automatically acquires ownership of them.152 The Agency then controls all consumers’ supply and demand and has a right of option with regard to all nuclear materials produced within the Community.

The Euratom Community’s right of ownership under the Euratom Treaty is consequently very limited in terms of capacity (no capacity to transfer or otherwise dispose over nuclear materials) and content (no use or consumption).153 It may be a primary right in the formal sense but it does not constitute a European Primary Right as envisaged in this chapter.

145[2010] OJ C 84/01, Art. 86: ‘Special fissile materials shall be the property of the Community. The Community's right of ownership shall extend to all special fissile materials which are produced or imported by a Member State, a person or an undertaking and are subject to the safeguards provided for in Chapter 7.’

146Art. 87 Euratom.

147Böhm 1962, p. 175-176.

148Böhm 1962, p. 172.

149Böhm 1962, p. 177.

150Böhm 1962, p. 174 and 178.

151Artt. 53 et seq. Euratom.

152Böhm 1962, p. 171.

153Cf Böhm 1962, p. 178: ‘Euratom can be the owner of special nuclear materials only under the ownership provisions in force at the place where such materials are located.’

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5.2.European Security Right

When considering an ESR we can benefit from the example of a number of past attempts – some successful, some unsuccessful – to create a cross-border security right. It was not possible to discuss all examples at length here. I have therefore chosen to focus on five examples, for reasons described below. Examples not included are, for instance, the European Bank for Reconstruction and Development’s Model Law on Secured Transactions and the UNCITRAL Legislative Guide on Secured Transactions.154 The EBRD’s Model Law was drafted with a very specific objective in mind, namely to assist the development of rules on secured transactions in post-communist countries in central and eastern Europe.155 Given that this objective is quite different from the objective of drafting a European Security Right that can be used throughout the EU, the EBRD has not been used as an example here for the development of such a European Security Right.

Previous attempts by the EU itself as regards cross-border security rights were the 1973 Draft Directive on mutual recognition of security rights in movables and the Green Paper on a Euromortgage. Neither of those instruments eventually came into being but they are revisited here to see whether they nevertheless contain elements that can be taken over for an ESR and where improvements could be made to increase the likelihood that an ESR would make it into legislation the next time round. Article 9 of the United States Uniform Commercial Code (UCC) and the Cape Town Convention creating an international interest in mobile equipment are both successful examples of international instruments providing for a cross-border security right. Finally, Book IX of the Draft Common Frame of Reference (DCFR) on proprietary security rights in movable assets is taken into account because it was modelled after Article 9 UCC. A further reason for including Book IX DCFR is that it was developed by the Study Group on a European Civil Code as a proposed law for the whole of the European Union.

Below, each of these five instruments is introduced briefly. They are thereafter used as supporting material for the discussion on the different elements of a European Security Right.

5.2.1. Past Proposals and Existing Cross-Border Security Rights

1973 Draft Directive on mutual recognition of securities on movables

In 1973 the Commission proposed a Draft Directive concerning the recognition of securities on movables without dispossession and of the terms relating to the transfer of ownership156 (hereafter ‘the 1973 Draft Directive’). The Commission was concerned about hindrances to the functioning of the internal market resulting from the fact that security rights on movables differ greatly from Member State to

154For more information about these two instruments, see Van Erp & Akkermans 2012, Chapter 10 at sections V.B and V.C.

155EBRD Model Law on Secured Transactions, Introduction. To be found at: <http://www. ebrd.com/downloads/research/guides/secured.pdf>.

156DG Internal Market, Document XI/466/73-E.

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Member State and that mutual recognition of those rights was (and still is) not guaranteed.157 In the note preceding the Draft Directive the Commission pointed out that the problems with recognition of foreign security rights and reservation of ownership clauses cannot be solved through conflict of laws rules alone.158 The essence of the Draft Directive was therefore to facilitate mutual recognition of security devices by having these security devices be registered in a central European registry.159 The secured party would thereafter obtain the rights which it would have as a pledgee under the law of the host Member State.160 The Draft Directive contained three alternatives for setting up a registration system. In the end, the Directive never came into being because of the inability of the Member States to reach an agreement on a registration system.161

Even if the Directive had come into being, it is questionable whether it would have had any real effect. According to the discussion by the Subcommittee on Private International Law,162 the term recognition, as used in the Directive, should be interpreted as follows: ‘Recognition is restricted to the “validity” of the security and does not cover the “effects”, which will be governed by another law’.163 What is more, the Subcommittee wondered whether an exception should be made allowing Member States to refuse recognition where it ‘would affect the conditions of trade or competition in the country recognizing the security’.164 Experts taking part in the discussion observed that mandatory law should in any event be adhered to.165 In other words, Member States would, under the Directive, only have had to recognize the validity of a foreign security right. They would not have had to recognize it as such, meaning that it would still be transposed into the nearest national equivalent.166 They could moreover choose not to recognize it at all if it conflicted with their mandatory law. Given that essentially all rules of property law are deemed to be mandatory, a Member State could practically always refuse to recognize a foreign security right. By having been drafted the way it was, the Directive barely stood a chance of lifting the barriers to trade caused by non-recognition of foreign security rights.167

157Kreuzer 1991, p. 92 at footnote 211.

158Doc. XI/466/73-E, p. 2. See to the same extent Kreuzer 1990, p. 614, and with regard to the Euromortgage Wehrens 2004, p. 779.

159Doc. XI/466/73-E, p. 3.

160Artt. 3 and 4 of the proposed Directive. See also Kieninger 2004b, p. 22.

161Bouckaert 2006, p. 187; Kieninger 2004b, p. 22. See also Goode 1998, p. 454. The Report of the meeting of the Subcommittee on Private International Law of the Commission’s DG for the Internal Market, Doc. XI/526/74-E, 102 October 1974 does not contain a final decision on a registration system.

162A subcomittee of the European Commission’s DG Internal Market.

163Report of the Meeting of the Subcommittee, Doc. XI/151/74-E of Commission DG Internal Market, p. 11.

164Ibidem.

165Report of the Meeting, p. 12.

166See also the discussion concerning Art. 3 of the Draft Directive, which places the enforcement of a security right under the lex rei sitae at the time of enforcement and provides ‘assimilation rules’ which provide how foreign security rights are to be transformed into an equivalent in the host Member State; Report of the Meeting, p. 14.

167For more about what these obstacles are and how they are caused by non-recognition, see Chapter 2, section 3.4.5. The obstacles to free movement of goods: loss of property right and increase

à

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The Report of the meeting of the Subcommittee on Private International Law of 1-2 October 1974168 briefly mentions that the Subcommittee was invited by the Secretary-General of the Hague Conference to consider the creation of a European Security Right.169 The Subcommittee however does not address this option at all.

Euromortgage

A report drafted for the European Commission by London Economics in 2005 on the Costs and Benefits of Integration of EU Mortgage Markets names as an important, and potentially substantial, benefit of integration the increase of supply and consumption of housing: ‘The primary means by which we expect mortgage integration to benefit the EU is by increasing the supply and consumption of housing. […] The increase in the total EU housing stock, at 3.7%, is fairly substantial.’170

The Commission’s 2005 Green Paper on Mortgage Credit in the EU171 presented the idea of a Euromortgage (Eurohypothèque/Euro-Hypothek).172 The Euromortgage would be a security right that could be used throughout the EU. It would be presented in the form of a 28th system. The main element of the Euromortgage would be a decoupling of the security right – the Euromortgage – from the underlying claim that it secured. In other words, the accessority (principe d’accessoirité/Akzessorietät) between the security right and the secured claim would be weakened.173 Whether or not a European Security Right should be accessory to the underlying claim is discussed in more detail below.174 Suffice it to say, the Euromortgage was never introduced. It disappeared from view after the Commission’s White paper on the integration of EU mortgage credit markets175 no longer made any mention of it.176

According to Wehrens, if the Euromortgage had come into being, its creation would have depended ‘on the composition of the respective national system of land

in costs. Cf Honnebier 2006, p. 26, who criticises the 1948 Geneva Convention on the International Recognition of Rights in Aircraft for only containing rules on mutual recognition but no substantive property law rules.

168Commission DG Internal Market, Doc. XI/526/74-E.

169P. 5.

170The Costs and Benefits of Integration of EU Mortgage Markets, Report for European Commission DG Internal Market and Services by London Economics, August 2005, to be found at: <http://ec.europa.eu/internal_market/finservices-retail/docs/home-loans/2005-report-inte gration-mortgage-markets_en.pdf>. See also Snijders 2006, p. 156.

171COM(2005) 327 final.

1722005 Green Paper, p. 13 at 47, 48. This was not the first time. The idea for a Euromortgage had already been introduced in the 1966 Segré Report on The development of a European capital market; to be found at: <http://ec.europa.eu/economy_finance/emu_history/documenta tion/chapter1/19661130en382develeurocapitm_a.pdf>. See also Wehrens 2004, p. 769-770.

173See also the Text of Forum Group Report Recommendations attached as Annex II to the 2005 Green Paper which, at no 36, recommends that the Commission ‘should ensure that links between mortgage debts and the collateral security are made more flexible’.

174Section 5.2.2.4. Accessory or non-accessory security right.

175COM(2007) 807 final.

176For a more detailed overview of the origins of and developments around the Euromortgage, see Van Erp & Akkermans 2013.

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registration’.177 In other words, national rules on the role of notaries and land registries in the creation of a right of mortgage would also have applied to the creation of the Euromortgage. In my opinion, this would have weakened the effectiveness of the Euromortgage. The reason that I, in this Chapter, propose a European Security Right that must be created in accordance with European rules on the creation of property rights is that any party would be able to use the ESR on the basis of the same set of rules, everywhere in the EU, so as to eliminate obstacles to, in particular, the free movement of capital, which result from the differing national rules on the creation of security rights. By making a Euromortgage dependent on national rules concerning creation and registration, these obstacles to the internal market would not have been sufficiently reduced.

Article 9 of the Uniform Commercial Code (UCC) deals with secured transactions. It has been implemented by all the states of the USA. It provides for a security interest, enforceable throughout the United States, which can be created in relation to movables, both tangible and intangible.178 It is a functional piece of legislation, concerned more with practicality and less with theory.179 According to section 9- 109(a)(1), Article 9 UCC applies to any transaction ‘regardless of its form, that creates a security interest in personal property’. This means any agreement creating a security interest, whether or not it is denominated by the parties as such.180 This makes the Article 9 UCC security interest a self-standing one which is not dependent on a previously created national property right which is then converted into an Article 9 UCC interest.181 Apart from the agreement that creates the security interest, three elements are required for the security interest to ‘attach’, i.e. to become enforceable against the debtor and third parties. These have been listed in section 9-203. Perfection is furthermore necessary to establish priority of a security interest. Some security interests are perfected upon attachment182 but for others either filing, possession or control are required.183 Because every State has its own filing system, a conflicts rule laid down in section 9-301(1) determines that the law of the location of the debtor governs perfection and priority of a security interest.

Cape Town Convention

The Cape Town Convention on International Interests in Mobile Equipment was promulgated in 2001. Its preamble tells us what the essential characteristics and goals of the Convention are: it first of all recognizes the need to ensure that interests in mobile equipment are recognized and protected universally; secondly, it promotes the autonomy of the parties necessary in asset-based financing and leasing

177Wehrens 2004, p. 775.

178S 9-109. The UCC can be found at: <http://www.law.cornell.edu/ucc>.

179Van Erp & Akkermans 2012, p. 430; Sigman 2004, p. 55 and 57; Goode 1998, p. 458.

180UCC: Official Text and Comments 2008 Edition, Official Comment 2 at p. 875; Sigman 2004, p. 64.

181Cf UCC: Official Text and Comments 2008 Edition, Official Comment 3(b) at p. 854: ‘Whether an agreement creates a security interest depends not on whether the parties intend that the law characterize the transaction as a security interest but rather on whether the transaction falls within the definition of “security interest” in Section 1-201.’

182S 9-309.

183S 9-310 – 9-314.

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transactions; and thirdly, it recognizes the need to establish a legal framework for international interests in mobile equipment and for that purpose to create an international registration system for the protection of such international interests.

The Cape Town Convention provides for an ‘international interest’.184 The international interest must be created in accordance with the requirements laid down in Article 7 of the Convention.185 An international interest can take the form of a security agreement, a retention of title agreement or a leasing agreement. The international interest is self-standing in the sense that it derives from the Convention, not from national law.186 This means that an international interest is created if the requirements of Article 7 are met, regardless of whether this would also constitute such an interest under the otherwise applicable (national) law or whether such an interest is known to that law.187 The Convention does however leave certain aspects to national law. For instance, the validity of an agreement which purports to create an international interest is to be determined in accordance with the applicable national law.188 Furthermore, whether the international interest is to be classified as a security agreement, a retention of title agreement or a leasing agreement also depends on the applicable national law.189 For reasons set out above, a European Security Right should function within a European framework that includes rules on creation so as not to be dependent on national law.190 The proposal for an ESR as laid down in this chapter purports to provide a self-standing interest which does not rely on classifications of security rights under national law.

Book IX of the Draft Common Frame of Reference

The Draft Common Frame of Reference (DCFR) is an academic study, conducted and published by the Study Group on a European Civil Code and the Research Group on Existing EC-Contract Law, also known as the acquis group. It is a large body of model rules on European private law. In 2010 the drafters of the DCFR published the final edition, along with their notes and comments on the provisions contained in it. The DCFR consists of ten books. Book IX deals with Proprietary security in movable assets. It has been based on Article 9 UCC.191 Book IX takes a semi-functional approach: it covers all security devices, both limited security rights and ownership for security purposes, but unlike Article 9 UCC it still denominates

184Art. 2(1) of the Convention.

185Art. 7 reads: ‘An interest is constituted as an international interest under this Convention where the agreement creating or providing for the interest:

(a)is in writing;

(b)relates to an object of which the chargor, conditional seller or lessor has power to dispose;

(c)enables the object to be identified in conformity with the Protocol; and

(d)in the case of a security agreement, enables the secured obligations to be determined, but without the need to state a sum or maximum sum secured.’

186Goode 2008, p. 175; Honnebier 2006, p. 26; Goode 1998, p. 460.

187Goode 2008, p. 175; Honnebier 2006, p. 26; Goode 1998, p. 460.

188Goode 2008, p. 15, 35, 176.

189Art. 2(4) of the Convention; Goode 2008, p. 33.

190Cf Wehrens 2004, p. 775.

191Van Erp & Akkermans 2012, p. 1070.

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these devices along the lines of national concepts of security rights.192 Article IX. – 1:101 reads:

‘(1) This Book applies to the following rights in movable property based upon contracts for proprietary security:

(a)security rights; and

(b)ownership retained under retention of ownership devices.’

Articles IX. – 1:102 and 1:103 then continue to further define what a security right is193 and what a retention of ownership device is. Book IX DCFR provides rules for the creation of the security devices covered by it,194 so that it is not necessary to depend on national rules for the creation of limited property security rights.195

5.2.2. Characteristics of the European Security Right

A decision would have to be made regarding each of the following characteristics:196 a) whether the ESR is a possessory or (also) a non-possessory security right; b) in relation to what type of objects the ESR can be created (i.e. movable/immovable, tangible/intangible); c) whether it is a general or specific security right, i.e. must the objects on which it rests be specified or can the ESR be created in relation to a group of (undefined) assets or future assets; d) whether it should be an accessory or a nonaccessory security right; and e) whether registration is required and if so, in what form.

5.2.2.1. Possessory or Non-Possessory Security Right

Non-possessory security rights have increased in popularity over the last decades.197 French law, for instance, went with the legal reforms of 2006 from a very specific non-possessory pledge on cars to a general non-possessory pledge, now laid down in Article 2337 of the Code Civil.198 Conventional possessory security rights fail where the debtor needs the encumbered assets in the course of his business to generate the proceeds necessary to repay his loan.199 Non-possessory security rights, such as the Dutch silent pledge (stil pandrecht) or the Italian hypothec on motor vehicles (ipotecha sul autoveicolo) do not have that downfall and have thus become more common. For the same reason Article 9 UCC also provides for a non-

192Van Erp & Akkermans 2012, p. 430. For a general overview of Book IX DCFR see Erp, Akkermans & Ramaekers 2012, p. 90-91.

193This includes ‘especially the pledge’ – Art. IX. – 1:102(2)(a).

194Artt. IX. – 2:101 and 2:102.

195Van Erp & Akkermans 2012, p. 1070.

196Cf Snijders 2006, p. 157 and 163; Kieninger 2006, p. 166.

197Cf Van Erp 2008b, p. 18; Kieninger 2004a, p. 653; Goode 1998, p. 458.

198Art. 2337 Code Civil: ‘A pledge is effective against third parties due to the compliance with the publicity attached to it. That is also the case by surrendering of its object into the possession of the creditor or a third party upon which they agreed.’ Van Erp & Akkermans 2012, p. 446 and 449.

199Akkermans 2008, p. 429.

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possessory interest; it facilitates ‘efficient financing’.200 The same was already true for the European Commission’s Draft Directive on the recognition of securities on movables without dispossession201 and is also true for Book IX DCFR. The latter provides that ‘[u]nless otherwise agreed by the parties, the creation of a security right by contract does not require possession of the encumbered asset by the secured creditor’.202 AN ESR should follow this trend and should in any case be available as a non-possessory security right. If parties want to agree to use the ESR as a possessory security right after all then this option could be made available to them in the European Regulation providing for the ESR.

5.2.2.2. For what Type of Objects?

Given that there would be one all-encompassing EU security right, that right should be able to be created in relation to all types of objects: immovable, movable and intangible.203 The international interest stemming from the Cape Town Convention can only be created in relation to tangible movable objects. They are however registered movable objects of great value and are therefore similar to registered immovable property which normally also has a high value. The security interest from Article 9 UCC can only be created in relation to movables, both tangible and intangible; and Book IX of the DCFR also only applies to movable property, both tangible and intangible. The ESR, however, should also be able to be used for immovables. Otherwise its goal – improving the functioning of the internal market – cannot be achieved fully. If the ESR were applicable to movables only, it might improve the free movement of goods but not the free movement of capital. As was explained in Chapter 2, property law issues involving the free movement of capital concern mostly the acquisition of immovable property in another Member State.204 The free movement of capital would therefore benefit from an ESR that can also be used for immovable property. Furthermore, because immovable property is still the most common collateral to secure repayment of a loan, having an ESR that can be created on immovable property may increase the importance and volume of crossborder mortgage lending.205

Intangible objects should also be included as possible objects of an ESR. It follows from the research conducted for Chapter 4 on property law in EU secondary legislation that the acquis already accepts that rights in rem – as is the term used in the acquis – can exist in relation to all types of objects, as long as they represent an economic value. Given that the development of an ESR would build on the existing property law acquis, it should be able to be created in relation to movables and immovables, both tangible and intangible.

200Sigman 2004, p. 59.

201DG Internal Market, Document XI/466/73-E.

202Art. IX. – 2:103.

203Cf Kreuzer 1990, p. 639.

204Chapter 2, section 4.3. Obstacles to the free movement of capital.

205Wehrens 2004, p. 770.

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5.2.2.3. General or Specific Security Right

Should the ESR be a general or specific security right? A specific security right can only be created in relation to a specified object, whereas a general security right can be created in relation to (groups of) specifiable objects or in relation to unspecified objects. The Cape Town Convention only allows the creation of an international interest in relation to a specified object. This prerequisite of specification is linked directly to the fact that the registration system set up under the Convention is assetbased.206 Registration of an international interest is not possible if the asset is not identified. General security rights have become more popular, however, over the last few decades. See, for instance, the English floating charge,207 the Belgian gage sur fonds de commerce or pand op de handelszaak,208 or the case law of the Dutch supreme court (Hoge Raad) which permits pledging of groups of (future) claims by way of a verzamelpandakte (collective deed of pledge).209 General security rights allow the creation of a security right over classes of assets or future assets, without having to create a new security right for each individual asset. This makes general security rights cost-effective.210 The security interest that can be created under Article 9 UCC is a general security right or ‘floating lien’, as it is referred to.211 Book IX DCFR has not entirely followed this trend; Article IX. – 2:102 requires inter alia that the asset exists. At first sight, this seems to mean that the creation of a security device in relation to future assets is not possible. However, according to the comments to the DCFR, what this provision means is that a security agreement has no proprietary effect, until the asset in which it is created comes into existence.212 It is emphasized that this delayed creation of the security right does not necessarily affect its priority.213

The ESR should meet the needs of businesses for a general security right. Combined with a debtor-based registration system,214 it is perfectly possible to make the ESR a general security right. What is more, the acquis already provides for the possibility of creating rights in rem in ‘collections of indefinite assets as a whole

206Goode 2008, p. 51: ‘Registration is against the individual object, not against the debtor; hence the requirement that the object must be uniquely identifiable’. See also Goode 1998, p. 460-1, where he describes that the registration system under the Cape Town Convention would originally have been debtor-based, and why it was later changed to an asset-based system.

207Cf Hunter 1976, p. 324: ‘[I]t is felt that this form of security [the floating charge] and its mode of administration may have much to contribute to the more flexible and efficient financing of business throughout the Community.’ Bouckaert pleads for a commercial general security right encompassing all movable assets, such as the company’s inventory. He proposes to use the English floating charge as an example. Bouckaert 2006, p. 192.

208Act of 25 October 1919 with regard to the pledge on a commercial fund, Belgian Official Gazette 5 November 1919; Van Erp & Akkermans 2012 Chapter 5 at III.A.4.b. Belgian law and excerpt 5.35 (BE).

209See recently the Hoge Raad in Dix v ING Bank NV, 03 February 2012, LJN: BT6947 at 4.6.1.- 4.6.4. See also: <http://www.debrauw.com/News/LegalAlerts/Pages/DutchSupremeCourt acceptsfloatingcharge.aspx#page=1>.

210See e.g. Goode 1998, p. 459.

211Sigman 2004, p. 57.

212Comments under B to Art. IX.-2:102, p. 5412.

213Ibidem.

214See infra section 5.2.2.5. Registration.

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