Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

Purpose and Method of the Study

contract). The transfer of rights in rem from settlor to trustee is therefore subject to a set of in personam duties owed by the trustee to the beneficiaries.88

So how then to decide when something is property law and when not? And if something is property law, what does it look like? The first question pertains to the distinguishing features between property rights and personal rights. Whether or not a right is a property right is determined by the principle of numerus clausus.89 According to this principle the list of property rights available to parties is closed. Parties cannot create property rights that do not feature in the numerus clausus and they can only give their property rights the content permitted by law. Rights featuring in the numerus clausus, and which are therefore property rights, all share two primary characteristics: they are rights against an object, which is reflected by the fact that property rights have a droit de suite, meaning that they follow the object on which they rest;90 and they can be invoked erga omnes or against the world and not just against one or a number of specific persons.91 Rights that do not pass through the filter of the numerus clausus – i.e. that do not have these characteristics – are not property rights.92 Once it is established that a right is a property right, the second question – what do they look like and what does the system of property law within which they function look like – can be answered.

To answer this second question, a general model is needed that fits the characteristics of any property law system. Such a model should be able to incorporate the elements all property law systems share in general, without having to study the specifics of the property law of each of the 27 Member States of the European Union.93 The model must be of a trans-systemic nature.94 The next section provides such a model, with which all the different elements that make up the system of property law can be construed. It must be noted, that this model shows a standardized system of property law and is not dependent upon a specific national definition of property law.95 The model is not meant to explain where property rights

88Merrill & Smith 2001, p. 844. Cf also Von Bar & Drobnig 2002, nos. 467-471. In contrast, Gardner describes the duties of a trustee as in rem obligations: Gardner 2011, p. 14.

89The EU Member States generally adhere to the numerus clausus, although some more strictly than others. It is in that regard interesting to note a judgment of the French Cour de cassation of 31 October 2012 in which the court held that an owner may confer on another person a real right of enjoyment in relation to his object, provided that this does not contravene rules of ordre public: ‘Vu les articles 544 et 1134 du code civil; Attendu qu’il résulte de ces textes que le propriétaire peut consentir, sous réserve des règles d’ordre public, un droit réel conférant le bénéfice d'une jouissance spéciale de son bien’. Cass. civ. 3ième, No. 11-16304.

90Van Erp 2008b, p. 19.

91See e.g. Van Erp & Akkermans 2012, p. 51-53; Clarke & Kohler 2005, p. 18.

92Akkermans 2008, p. 402; Van Erp 2006b, p. 13-14.

93Cf Van Erp 2008b, p. 19.

94Van Erp 2011b, p. 4: ‘Trans-systemic analysis uses the functional method to discover how legal traditions solve particular problems, discovering the underlying values, policy choices, leading principles, concepts, ground rules and more specific technical rules. Through transsystemic analysis the groundwork (perhaps one could say: the matrix) of legal systems can be found.’ See also Van Praagh 2005.

95Cf the distinction made by Hage between doctrinal concepts and internal juridical concepts (doctrinair en intern juridisch begrip); he uses the concept of rechtshandeling (legal act) to clarify this distinction: ‘De karakterisering van rechtshandelingen als handelingen waarmee de handelende personen beogen rechtsgevolgen tot stand te brengen en waaraan het recht de

à

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come from or what their function is but only what they look like. The model shows that the system of property law can be broken down into smaller parts. Once this is done, the building blocks of the system are revealed.96 All these building blocks together form the system of property law, but each separate property right that one encounters within the system is made up of a particular assembly of some of those building blocks. The model visualizes this internal structure of property law. It consists of a core and a regulatory framework surrounding that core. The core represents the system of property rights. The regulatory framework around it – which I have called the operating system – consists of the rules governing these property rights. The operating system contains rules on creation, transfer, registration and destruction. These rules are part of the operating system because they each regulate a different stage in the life of a property right. They inform a person wanting to create a property law relationship how particular property rights can be acquired or passed on to someone else and what these rights can and cannot be used for. They also tell us how a property right may be lost. The operating system also contains rules relating to the third party effect of property rights. One of the distinguishing features of property rights is that they can be invoked erga omnes, whereas personal rights can only be invoked against one or several specific persons.97 Operating rules concerning the third party effect of property rights are therefore, for instance, rules that determine if and when a property right can be invoked against a third party or whether a third party transferee is protected against the invalidity of a previous transfer.

Rules in the operating system are a reflection of underlying principles, such as the principle of transparency.98 The value that a given system of property law attaches to such principles is reflected in its operating rules. For instance, legal systems in which registration is a constitutive element for the transfer of ownership of an immovable attach a different value to the principle of specificity than legal systems in which registration is not a constitutive element. In Chapter 6, where the creation of a European operating system of property law is discussed, attention will, inter alia, be paid to these underlying principles. Choices for particular operating rules at EU level will often be based on the principle of effet utile, one of the leading principles of EU law, which purports to guarantee its effectiveness.

The core of the model plus the operating system together form the system of property law. In the remainder of this chapter emphasis will lie on the core of the model because it is the most complex part. The following figure visualizes what the

beoogde rechtsgevolgen verbindt omdat ze werden beoogd, is niet gebonden aan een concreet rechtssysteem. Sterker nog, hij abstraheert juist van rechtssystemen door de mogelijkheid te bieden om te beoordelen of een bepaald concreet rechtssysteem het verschijnsel rechtshandelingen kent. De notie “rechtshandeling” waar het hier om gaat is een doctrinaire notie, een begrip ontwikkeld in de rechtsgeleerdheid om bepaalde verschijnselen die relevante kenmerken gemeenschappelijk hebben te kunnen aanduiden. 11. Daar staat tegenover het begrip “rechtshandeling” zoals dat voorkomt in rechtsregels.’ Hage 2010, p. 246.

96Sparkes 2007, p. 128-129.

97Van Erp 2006a, p. 1051-1052; Akkermans 2008, p. 2.

98The principle of transparency can be further subdivided into the principle of specificity and the principle of publicity. See Van Erp 2009b.

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Purpose and Method of the Study

entire system of property law looks like. The figures in the next sections further clarify how this model functions.

Figure 1. System of property law.

2.2.2. The System of Property Rights: a Three-Dimensional Model

Every property right has three dimensions. The first dimension – the width in my model – consists of the objects, the things that can be the object of property rights. Depending on the legal system, these can either be only corporeal objects or they can include incorporeal objects as well. The second dimension – the depth in my model – consists of the content of the various property rights, i.e. ownership or freehold title and other, limited, property rights, which one can have in relation to the objects. The third dimension of property rights – the height in my model – is the dimension of time. Property rights, as well as the objects on which they rest, can be unlimited or limited in time. For instance, ownership is unlimited in time, but a security right is usually limited to the time during which the underlying claim, which it secures, is being repaid.

There is a constant interplay between the three dimensions of a system of property rights. For instance, in Germany one can only have a right of ownership over corporeal objects, not over incorporeals, yet rights can be transferred and be burdened with limited property rights, such as a usufruct.99 Emission rights can,

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under Dutch law, not be pledged, even though other incorporeal objects usually can.100

This three-dimensional model that represents property rights shows the building blocks out of which property rights are made. When visualized, it can be likened to a Rubik’s Cube,101 of which the individual cubes can be detached and reattached to give different shapes to its width, depth and height. The model, representing the system of property rights, is then visualised in the following manner:

Figure 2. ‘System-Cube’ representing the three dimensions of a system of property rights.

The visualization of the three-dimensional model is inspired by the composition of a Rubik’s Cube, but the end result is autonomous and differs from the Rubik’s Cube in two ways: first, the disks of this cube – the ‘System-Cube’, see figure 2 – do not rotate, unlike the disks of a Rubik’s Cube. Second, the individual cubes of the System-Cube can be detached and re-attached to account for the variables of specific property rights and their objects.102 Rubik’s Cubes cannot be deconstructed (or taken apart) in that way. In other words, it is not so much the way in which the Rubik’s Cube functions – i.e. having the capacity to rotate in all directions – that

100Art. 16.42(3) of the Dutch Wet Milieubeheer (Law on Environmental Management) reads: ‘In afwijking van artikel 228 van Boek 3 van het Burgerlijk Wetboek kan op een gasemissierecht geen recht van pand worden gevestigd.’ (In derogation from Article 228 of book 3 of the Civil Code a right of pledge cannot be created on an emission right.) [translation by Akkermans 2011, p. 9].

101<http://www.rubiks.com/>.

102The individual cubes of the System-Cube can be detached, because the model that the System-Cube visualizes is based on the French notion of démembrement, or subtraction, for the creation of limited property rights. The method of démembrement takes as a starting point that the right of ownership contains a number of powers, which can be divided into specific parts. Those parts can be transferred to another person. In the hands of that person, they form a limited property right. In other words, the limited property right consists of fragment of the right of ownership, out of which it was created. The other possibility is to see limited property rights not so much as derived from the powers of the owner, but as a limitation of those powers. Such a limitation entails that those powers that accumulate in the limited property right are not taken away from the person with the more extensive property right, but that this person can, temporarily, simply not make use of those powers. This is the socalled limitation model. See Akkermans 2008, p. 116 and 415.

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Purpose and Method of the Study

inspired this visualization, but the way in which it is constructed: it is compiled of smaller cubes with different colours,103 all somehow connected to each other. It is this interconnection between the cubes that forms the essence of the model: the building blocks of the system of property rights are also interconnected. If one is affected, the others are also affected.

2.2.3. Practical Application of the System-Cube

With the System-Cube, any given property right can be visualized. I will give a few examples to illustrate. The whole cube will hereafter be called the System-Cube, whereas the individual smaller cubes of which it is made up will be called the minor cubes. The minor cubes each have their own designation, as shown in Figure 1 above. The three minor cubes in the bottom front row represent, from left to right, immovables and movables (together: corporeals) and incorporeals. The two cubes behind each of these three (forming the dimension of depth) represent the most extensive property right available in a legal system. This would be ownership in civil law systems or freehold title to land or title to personal property in English common law.104 On top of each minor cube at the bottom of the System-Cube, are stacked two more minor cubes, representing the dimension of time. Two minor cubes on top of the rights-cubes indicate that the right is in principle unlimited in time. Take one away from the top and the right is limited in time. The same goes for the time-cubes placed on top of the objects-cubes: take one away from the top and the object is limited in time.

The full depth of the System-Cube symbolizes the right of ownership or freehold title/title to personal property, since it is the most extensive property right a person can have. By taking minor cubes away from the depth of the System-Cube it is possible to visualize limited property rights. Limited property rights are less extensive than the right of ownership, which is shown by a reduction of the dimension of depth of the System-Cube. If a particular property right only relates to corporeals or incorporeals, this can be visualized by taking away minor cubes from the width of the System-Cube. The minor cubes representing the corporeals can be subdivided into movables and immovables, if wanted.105 The third dimension, of time, is represented by the height of the System-Cube. If a property right is limited in time,

103Because this book is printed in black and white the colours have been replaced by patterns, i.e. horizontal stripes, diagonal stripes, etc.

104In some countries, such as Germany and the Netherlands, it is technically not possible to be an owner of incorporeals. In these systems, the person ‘owning’ an incorporeal is called the right-holder (rechthebbende in Dutch). In the model of the System-Cube, the fact that this ‘ownership’ is different from ownership of corporeals can be indicated by marking the two minor cubes in the row behind the incorporeal-cube with a dotted instead of a normal . However, given that the powers of a right-holder over his incorporeal object are functionally equivalent to the powers that he or she has as owner of a corporeal object, the shape of the cube, as such, need not be changed.

105I have chosen to do so myself, for the purpose of clarity, but the movables and immovables could just as well be merged into one cube entitled ‘corporeals’, thereby reducing the width of the System-Cube by one minor cube.

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or if an object is limited in time (e.g. emission rights), the height of the System-Cube is reduced by taking away minor cubes.

The number of minor cubes, making up the System-Cube, with which one starts, is irrelevant; the principle idea always remains the same. I chose to work with a System-Cube of 3x3x3 minor cubes, because in my opinion this provides a clear visualization of the building blocks that make up property rights. Taking the cube as shown above in Figure 2 as a starting point, specific property rights in specific countries would have the following composition of minor cubes.

2.2.3.1. A Right of Usufruct

A right of usufruct can, in Germany and the Netherlands be created both in relation to corporeal and in relation to incorporeal objects. It therefore does not limit the width of the System-Cube. It does, however, limit the depth of the System-Cube, since it is a less extensive right than the right of ownership. It also limits the height of the cube, because both under German and under Dutch law, the usufruct is limited in time in the sense that it ends upon the death of the usufructuary.106 However, the object as such is in principle not limited in time, so no time-cubes are taken away there. As a result the System-Cube would have the following composition:

Figure 3. A right of usufruct in Germany and the Netherlands.

2.2.3.2. A Non-Possessory Right of Pledge on an Incorporeal Object

A non-possessory pledge created in relation to a claim, as is possible under Dutch law, would affect all three dimensions of the System-Cube. The width is reduced because the object is incorporeal and not corporeal (movable or immovable); the depth is reduced because a right of pledge is less extensive than the right of ownership; and the height is reduced because the right of pledge only exists during the time in which the loan, that the right of pledge is meant to secure, is not yet repaid and the claim still exists. As a result the System-Cube would be composed like this:

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Figure 4. A non-possessory right of pledge in relation to a claim.

2.2.3.3. Security Rights in Relation to Corporeal Objects

A security right created in relation to a corporeal object reduces the width of the System-Cube, because incorporeals are left out; it reduces the depth of the cube because a security right is less extensive than the right of ownership; and the height above the rights-cubes is reduced, because security rights only exist for the duration of the claim that they are meant to secure. A security right in relation to a corporeal object is therefore visualized by the System-Cube in the following way:

Figure 5. A security right in relation to a corporeal object.

2.2.3.4. Right of Ownership of Emission Rights

The right of ownership of emission rights gives yet another shape to the SystemCube. The width is reduced, because emission rights constitute an incorporeal object. The depth is not reduced, because it is the right of ownership, the most extensive property right, which is being visualized. The height is reduced, but not above the rights-cubes as in the previous examples, because the right of ownership is unlimited in time. The height is reduced above the object-cube, since emission rights are inherently limited in time. They are depleted, used up. This provides the following image:

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Figure 6. Right of ownership of emission rights, in France and Germany respectively.

Since it is not technically possible in systems such as Germany to be owner of an incorporeal object, the objects-cubes in the example of Figure 6 are marked with a dotted instead of a normal . However, since a right-holder in Germany has powers functionally equivalent to those of an owner, the shape of the rights-cubes as such does not have to be altered.107

2.2.3.5. Timeshare of Immovable Property

A person holding a timeshare in, for instance, a holiday home is entitled to that property but only for a limited and specified period of time per year. In other words, timeshares fragment the right of ownership in time.108 Timeshares were already known in English law, where fragmentation of ownership is possible, but civil law systems were not familiar with them until they were introduced by the European Timeshare Directive.109 Given that civil law systems generally adhere to a uniform concept of ownership, meaning that ownership cannot be fragmented, the introduction of a right that does lead to fragmentation of ownership has caused some difficulties. The Timeshare Directive is dealt with in more detail in Chapter 4.110 There, the question whether a timeshare is actually a property right or a personal right is also addressed.

If it is assumed that a timeshare is indeed a property right, then the question becomes how the characteristics of this right can be visualized through the SystemCube. The right of ownership is not so much restricted in its content, meaning that

107See supra, note 104.

108Timeshares can be set up in different ways under different legal systems, with some regarding them more as proprietary rights and others more as personal rights. More about this in Chapter 4. For the purposes of this section, timeshare is treated as a property right.

109Dir. 2008/122/EC on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts [2009] OJ L 33/10. This Directive repeals Dir. 94/47/EC.

110Chapter 4 at 5.7. Movable/immovable.

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the depth of the System-Cube does not need to be reduced, but it is restricted in time, meaning that the height of the minor cubes on top of the rights cubes representing ownership would have to be reduced. Timeshares are therefore represented through the System-Cube in the following way:

Figure 7. Timeshare in relation to an immovable object.

2.2.4. The System-Cube applied to English Law

The English system of property law is somewhat different from the European continental systems. England is a common law jurisdiction, whereas the European continental countries are predominantly civil law jurisdictions.111 The separate development in English law of land law and personal property law, and of common law and equity, has led to a fragmented system of property law.112 Furthermore, while the feudal system of landholding was abolished on the continent after the French Revolution, English land law is still based on feudal concepts of landholding such as fees and estates.113 Nevertheless, as I argued before, the System-Cube can be applied to any property law system, as long as the building blocks of the SystemCube are properly allocated. It therefore also fits the English system of property rights.

English property law does not know an absolute, unitary right of ownership like the European continental systems do. It takes as a starting point the concept of possession: a person holding a stronger right of possession in relation to a certain object will prevail over a person with a weaker right of possession in relation to that same object.114 This concept is referred to as ‘relativity of title’.115 It is however a procedural aspect which does not alter the content of a person’s right. The search for the strongest right of possession eventually leads to two property rights: a fee simple estate or freehold title, to land, and title to a chattel in personal property

111‘Common law’ is hereafter used in the meaning ‘as opposed to civil law’, not ‘as opposed to equity’, with the exception of section 2.2.4.1.

112Akkermans 2008, p. 11.

113Akkermans 2008, p. 11. Also Lawson & Rudden 2002, p. 12-16.

114Clarke & Kohler 2005, p. 260; Akkermans 2008, p. 417.

115Clarke & Kohler 2005, p. 386-387; Lawson & Rudden 2002, p. 50-52.

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