учебный год 2023 / Fiorentini, Proprietary Security Rights in the Western European Countries

448 12 · PROPRIETARY SECURITY RIGHTS

fact that they transfer to the creditor “more title” than the latter needs for security purposes, and this fact—mainly by reason of historical path dependency — is often considered dangerous for the debtor. I now provide a brief overview of the legal treatment of ownership as security in western Europe.

In most continental countries with prevalent Roman-law traditions, such security transfers of ownership tend to be banned for a variety of theoretical reasons, such as the existence of a numerus clausus of proprietary rights, or the unsuitability of the security purpose as the legal causa of a transfer of ownership.103 However, the essential reason for this ban seems to be the deeplyrooted idea of debtor protection against usury—and it is this that constitutes the rationale for the prohibition of the lex commissoria in the mentality of the interpretive formants. In Italy, the lex commissoria ban is often applied by courts in order to declare the nullity of security transfers of ownership.104 Substantially, the same ban can be observed in Spain105 and in the Netherlands.106

By contrast, German law is well-known for its liberality in the development of fiduciary transfers of ownership or assignment of claims for security purposes (Sicherungsübereignung, Sicherungsabtertung), also in broader forms whereby the security also covers processing assets.107 Here, prohibition of the lex commisso- ria—although it exists in the code—does not have operational relevance, in that it has almost never been applied by courts in cases concerning (the validity of)

103.F. Anelli, L’alienazione in funzione di garanzia (Milan 1996).

104.For a comparative analysis: M. Bussani, Il problema del patto commissorio; for Italy: F. Fiorentini, Garanzie reali atipiche, 253 ff.

105.In Spain, the problem is not the validity of the transfer of ownership for security purposes but its limits and effects towards third persons, also in consideration of the par condicio creditorum and the prohibition of the forfeiture clause: A. Carrasco, E. Cordero y M. Marín, Tratado de los Derechos de Garantías, 1058 ff. However, the ban of the lex commissoria has a more limited scope of application in Spain than in Italy (Id., 1064). The

Fuero Nuevo de Navarra, Law n. 466 expressly regulates the fiducia de garantía.

106.To be noted is the recession of Dutch law on the subject. Security ownership was recognized by the Dutch Supreme Court in 1929 (HR 25 January 1929, NJ 1929, 616; HR 21 June 1929, NJ 1929, 1096) because a non-possessory security right over movables was needed. Gradually, over many decades following recognition of security ownership in 1929, the Supreme Court reduced the security owner’s rights to the rights of a pledgee, maintaining that the owner is under a duty to sell the security object in execution and satisfy himself from the proceeds of sale. Any surplus money must be given to the debtor. It was thus accepted that security ownership is different from normal ownership. The 1992 Civil Code abolished fiducia at art. 3:84(3), mainly on the ground that security ownership gives the creditor more than is needed: ownership rather than a limited real right: J.H.M. van Erp & L.P.W. van Vliet, Real and Personal Security.

107.R. Serick, Securities in Movables in German law. An Outline (Den Haag 1990), 47

ff.

security transfers of ownership. Control over the proportionality of the security to the amount of the credit to be secured is exerted in Germany through an expost judicial assessment based on general clauses (esp. §138 German c.c.).

The hostility shown by some European systems towards security ownership is difficult to understand if we bear in mind that where it is fully recognized, security ownership is also treated as a ‘formal’ security, and not as an absolute ownership, for instance in the debtor’s insolvency, so that any danger of disproportion in the enforcement of the security is easily averted.108

A slightly different path has been followed by English law, for which a mortgage over movables has always been essentially a transfer of ownership to the creditor, where the proportionality of the transaction has always been checked by the rules of equity.109

Security ownership is generally valid even in the jurisdictions (like Italy) most adverse to it when the asset to be transferred for security purposes is a claim (security assignment). Two meta-positive reasons for this notable exception to the ban on security ownership may be identified where claims are concerned: (a) it is easier to check the proportionality of the secured relationship at the time of the enforcement—set-off often operates between the parties; (b) dogmatic objections may not stop actual bank practices worldwide in the sector of commercial lending.

(b) Retention of Title (RoT): The RoT is the classic security for credit granted by suppliers of goods, who sell the goods to the purchaser but grant him delayed payment of the purchase price, usually in instalments. In these cases, title passes to the purchaser only with full payment of the price (suspensive condition), so that the retention of the title by the seller/creditor has an evident function of security. The legal regimes on the validity and effects of RoT vary significantly among the European countries.

In general, validity of a RoT requires an express contract term which states the particular effect of the RoT, i.e. the transfer of title in the sold goods only at the time of the full payment of the purchase price.110

108.This is the legal treatment of the security ownership in Germany (Insolvenzordnung, §50 and 51), but it is also the legal treatment of the ‘irregular pledge’ of money or fungible assets in Italian law, which evades the ban of forfeiture clause because it is expressly regulated by the code (art. 1851): S. Palummo, Pegno irregolare e fallimento, Fall. 2004, 383 ff.

109.Cousins, The Law of Mortgages, 2nd ed. (London 2001), 141.

110.An express contract term is usually necessary also in order to extend the effects of the RoT to the proceeds deriving from the sale of the goods. An exception is represented by French law: M. Cabrillac, C. Mouly, Droit des sûretés, 7th edn., (Paris 2004), 609 ff. For the legal regime of RoT in French law see c.c. new arts. 2329 n. 4, 2367–2372.

450 12 · PROPRIETARY SECURITY RIGHTS

In England, Germany, and Sweden there is no registration requirement for the RoT to be valid between the parties, as well as erga omnes, and the security is treated as ownership in the case of the debtor’s insolvency so that the supplier can reclaim the sold goods as its own.111 In Spain, RoT produces effects against third persons if it is registered, and in the case of the debtor’s insolvency it is regarded as full ownership.112 In Italy, a ‘certain date prior to the time of the attachment’ is required for the validity of the RoT against third persons. In the case of machinery, when the price exceeds Euro 15.49, the RoT is effective against third persons provided that it has been entered on a special register kept at the Tribunal with jurisdiction in the place where the machinery is located.113

Finally, in England, Germany, Ireland, and Scotland, a RoT can secure not only payment of the purchase price but also any other obligation of the buyer towards the seller.114 In Germany, the RoT extends not only to the goods sold but also to the products resulting from their manufacture or to proceeds deriving from their sale, whereas such cases are regarded as creation of a new security the Netherlands.115 In England and Scotland, proceeds clauses are not favourably regarded by case law.116

111.U. Drobnig, Present and Future of Real and Personal Security, 649. In Greece, formalities are also not required for the ROT (art. 532 c.c.) to be valid even between the parties, where movables are concerned, unless statutory law expressly provides otherwise: C. Vainanidis, Greece, in I. Davies (ed.), Retention of Title Clauses in Sale of Goods Contracts in Europe (Aldershot, Brookfield 1999), 51. As to England, see however the ongoing reform process and the suggested registration of quasi-security in the area of company law: Law Comm. Cons. Rep. n. 296, 31 Aug. 2005 (see supra, fn. 100).

112.The Ley de venta a Plazos de Bienes Muobles (Law n. 28 of 13 July 1998, art. 15) creates a register of movables on which the RoT must be registered in order to produce its effects: A. Carrasco, E. Cordero, M. Marín, Tratado de los Derechos de Garantías, 967 ff., 981 ff.; Spanish c.c., arts. 1922 para. 2, 1926 para. 1; Ley de venta a Plazos de Bienes Muobles art. 16 para. 5.

113.Italian c.c., art. 1524. In addition to that requirement, and as concerns newly manufactured goods and machines with a value of at least euro 516,45, the Law of 28.11.1965, n. 1329 (so-called legge Sabatini) provides that the asset must bear a plate in a prominent position with the name of the seller as owner and information identifying the machine for a RoT to produce effects against third parties (see also decree of 21 February 1973 for the implementation of the legge Sabatini). Moreover, the contract containing the RoT clause must be registered on a special register kept at the Tribunal with jurisdiction in the place where the contract has been concluded.

114.These are called ‘all money clauses’; Ireland: Frigoscandia Ltd v. Continental Irish Meat Ltd, [1982] ILRM 396; England and Scotland: Armour v. Thyssen Edelstahlwerke AG, [1991] 2 AC 339 (House of Lords decision on Scots law).

115.U. Drobnig, Present and Future of Real and Personal Security, 651.

116.References in I. Davies, United Kingdom, in I. Davies (ed.), Retention of Title Clauses in Sale of Goods Contracts in Europe, 101 ff., 110 ff.; 112 ff.

The main issues treated differently by national jurisdictions are (i) the effectiveness of the RoT against a good faith purchaser from the buyer; (ii) the requirements of validity of the RoT against the buyer’s creditors, especially in the case of the buyer’s insolvency; and (iii) the possibility to qualify the buyer’s expectancy as a proprietary right. In this way, the buyer may be entitled to dispose of it (also as security), because the expectancy may have a substantial economic value depending upon the outstanding amount of the purchase price.117 It is evident that these divergences may obstruct recognition of foreign RoT clauses in cross-border transactions among European countries.118

(c) Financial leasing and lease-back: In financial leasing and sale and leaseback transactions, contract and property law are inextricably bound up together to produce arrangements which may (but not always) have purposes of security.

Financial leasing usually involves a three-party situation in which the lessor purchases assets from the producer and leases them to the lessee. The economic purpose of this arrangement is to enable the entrepreneur (lessee) to use specific assets—especially machinery—without disbursing the amount of money necessary to purchase full ownership of those assets. In fact, the lessee is bound to pay (only) a periodic rent which reflects the discounted value of the goods and the finance charges of the operation until termination of the contract, when, in some countries,119 he will have the option (a) to purchase the full ownership of the leased assets, (b) to renew the leasing contract, or

(c) to return the assets to the lessor. To be qualified as such, a finance leasing must transfer substantially all the risks and rewards of ownership (except legal title) to the lessee.120

117.As is well-known, this is the German practice: R. Serick, Securities in Movables in German law, 61 ff.; U. Drobnig, Present and Future of Real and Personal Security, 651.

118.Only some fragmented aspects of RoT clauses have been object of European ‘legislation’: EC Directive 2000/35 of 29 June 2000, on combating late payments in commercial transactions: EC O. J. L 200 of 8.8.2000, 35 ff., see particularly arts. 2, 3 and 4; and see also arts. 7 and 41 of EC Regulation n. 1346/2000 on insolvency proceedings, in EC O.J. L 160 of 30.6.2000, 1 ff.

119.The inclusion in the leasing contract of an option to purchase is a necessary condition for a transaction to be regarded as a leasing arrangement, for instance, in France (art. 1 law n. 455 of 2 July 1966, modified by ordinance n. 837 of 28 Sept. 1967; now in art. L. 313-1 code monetaire et financier; Cass. com. 30 May 1989, Bull. civ. IV, n. 167; RTDCom. 1990, 93), in Italy (M. Bussani, I contratti moderni, in Tratt. dir. civ. edited by R. Sacco (Torino 2004) 267); but not in England (R. Goode, Commercial Law, 2nd edn (London 1995) 777: indeed, the option converts the transaction into a hire-purchase agreement).

120.See, for all, R. Goode, Commercial Law, 777.

452 12 · PROPRIETARY SECURITY RIGHTS

The sale and lease-back schema is a unique version of the financial leasing transaction mentioned above. It is normally based on a bilateral transaction in which the entrepreneur sells the ownership of his assets to the lessor but continues to use it in his business on the basis of a lease contract. It is evident that this arrangement gives the lessee access to financing, which is alternative to the traditional bank loan.

Because of the strict factual connection of those transactions with financial strategies of the enterprise, it is sometimes difficult to distinguish them from transfers of ownership for security purposes. However, despite the economic framework in which leasing contracts are placed, in Western Europe such arrangements are normally classified not as ‘security rights’ but as ‘business contracts,’ as far as dogmatic classifications are concerned.121 It is thus possible to discern a trend towards the development of a legal regime for such devices which differs from that of ‘formal’ security rights, at least when it is necessary to ensure market access to such arrangements. Exemplifying this trend is the relationship between leasing contracts and the prohibition of the lex commissioria in those legal systems that prohibit the security-ownership, such as those of Italy, Portugal, or the Netherlands. In these countries, the problem of saving such devices (particularly lease-back) from applicability of the lex commissoria ban has been solved by differentiating leasing arrangements from security rights and legitimating the former.122 By contrast, some issues concerning the regulation of leasing transactions could be treated in a similar way to retention of title arrangements, as in the case of the formal requirements necessary to oppose the lessor’s ownership to third parties.123

121.For the qualification of financial leasing as an “atypical contract” or a contract sui generis, also on the basis of the Unidroit Convention on International Financial Leasing of Ottawa, 28 May 1988, see, for Germany, M. Stoffels, Leasing, in Staudinger Kommentar zum BGB, II, §§433–487 Leasing (Berlin 2004), 956 n. 76; for Italy, M. Bussani, I contratti moderni, 268; for Spain A. Carrasco, E. Cordero y M. Marín, Tratado de los Derechos de Garantías, 1027. According to Austrian scholars, leasing contracts are mixed contracts where elements of sale are combined with elements of lease: C. Fischer-Czermak, Mobilienleasing, Rechtsnatur, Gewährleistung und Gefahrtragung, Wien, 1995, 161. For the Dutch differentiation of financial leasing from security arrangements, like the RoT, see S. Bartles & J. Smits, The Netherlands, in E.- M. Kieninger (ed.), Security Rights in Movable Property in European Private Law, 608.

122.Netherlands: HR 19 May 1995, NJ 1996/119; Italy: Cass. 16 Oct. 1995, n. 10805, in Giur. it., I, 1, 1996, cc. 1382; the same is true for Spain: A. Carrasco, E. Cordero y M. Marín, Tratado de los Derechos de Garantías, 1043, 1052; for an account on the issue in Portugal, see L. Menezes Leitão, Portugal, in E.-M. Kieninger (ed.), Security Rights in Movable Property in European Private Law, 603.

123.In Italy, despite the fact that no formal requirements are established by the civil code for leasing transactions, the lessor’s rights will be protected in case of execution only

8.2.Security Rights over Movable Assets and Legal Integration

As mentioned above, the engine of the legal integration began to operate much earlier, and with much more intensity, in the field of security over movables than it did in that of security over immovables. The need to remove the most evident divergences among the legal regimes of the various jurisdictions, which hindered the recognition of foreign security devices and techniques in international commercial transactions, very soon stimulated international efforts for legal integration.124

In this respect, however, the first results have only been achieved in recent years, and mostly at regional level: the International Institute for the Unification of Private Law (UNIDROIT), the Organization of American States (OAS), the European Bank of Reconstruction and Development (EBRD), the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA), the United Nations Commission on International Trade Law (UNCITRAL) have accomplished ‘legislative’ integration by means of model laws or international conventions.125

if the formal requirements provided by art. 1524 para. 1 for RoT clauses are fulfilled (documentary evidence with certain date: M. Bussani, I contratti moderni, 322 ff. In France and Greece, leasing contracts must be registered to render the lessor’s ownership of the leased assets enforceable against third parties: for France see art. 8 of decree n. 72-665 of 4 July 1972; Code com. art. L. 621-116; for Greece see art. 4 law n. 1665/1986, modified by law

n.2367/1995.

124.U. Drobnig, Report of the Secretary-General: International Payments. Study on Security Interests, (1977) 8 U.N. Comm’n on Int’l Trade L.Y.B., 171–221, U.N.Doc.A/CN.9/ SER.A; Id., Empfehlen sich gesetzlichen Maßnahmen zur Reform der Mobiliarsicherheiten?, Gutachten F zum 51. Deutschen Juristentag, München, 1976, 98.

125.The text of the UNIDROIT Convention on International Interests in Mobile Equipment (2001) is available at www.unidroit.org with bibliographical references; see the special issue of the European Review of Private Law, n. 12(1) 2004. More generally, on the role of the UNIDROIT in the harmonization of the law on secured transactions see M. Stanford, From Ottawa to Cape Town: Unidroit’s Role in the Modernisation of the Law Governing Leasing and the Taking of Security, in I. Davies (ed.), Security Interests in Mobile Equipment (Aldershot 2002) 397.

The Inter-American Model Law on Secured Transactions (2002) is available at www.oas.org/; see also J.M. Wilson, La nueva ley modelo interamericana sobre garantías mobiliarias, in Rev. Mex. Der. Int. Priv., 2003, 33; L.P. Castro, La ley modelo interamericana sobre garantías mobiliarias, ivi, 2002, 31; A.M. Garro, Security interests in Personal Property in Latin America: A Comparison with Artiche 9 and a Model Reform, in (1987) 9 Houston J. Of Int’l L., 157; Id., The Reform and Harmonization of Personal Property Security Law in Latin America, in (1990) 59 Rev. Jur. Univ. Puerto Rico, 1; Id., Difficulties in Obtaining

454 12 · PROPRIETARY SECURITY RIGHTS

Of course, not even the EU Institutions have been indifferent to the issue, particularly since they openly acknowledged that the existing divergences are a de facto obstacle to full implementation of the internal market.126

The European legal integration of security rights regimes has two aspects, one ‘legislative’, the other ‘cultural’.

Secured Landing in Latin America: Why Law Reform Really Matters, in J.J. Norton, M. Andenas (eds.), Emerging financial Markets and Secured Transactions, 251.

For the EBRD Model Law on Secured Transactions (1994) see ZEuP, 1998, 766; and J.- H. Röver, Vergleichenden Prinzipien dinglicher Sicherheiten (München 1999) (with a German translation of the law); J. Simpson, J. Menze, Ten Years of Secured Transactions Reform, in (2001) 16(1) B.J.I.B. & F.L., 5; J.A. Spanogle, A Functional Analysis of the EBRD Model Law on Secured Transactions, in (1997) 3-spg NAFTA: Law & Business Rev. of the Americas, 82.

The Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) has enacted a uniform law regulating personal and proprietary security and, among the latter, security rights over both movables and immovables, the Act Uniforme Portant Organisation des Sûretés, see J.O. OHADA, n. 3 of 1 Oct. 1997 and www.ohada.com; J. IssaSayegh, Présentation générale de l’Acte Uniforme de l’OHADA sur les sûretés, in (2003) Unif. L. Rev., 364; F. Anoukaha, Le droit des sûretés dans l’Acte uniforme de l’OHADA (Yaoundé 1998).

The United Nations Commission on International Trade Law (UNCITRAL) in 2001 has elaborated the United Nations Convention on the Assignment of Receivables in International Trade, introducing uniform rules on assignment of receivables also to security purposes (see Explanatory Notes, p. 29, par. 7; text and materials available at: http://www.uncitral.org/uncitral/en/uncitral_texts/payments/2001Convention_receivables.html); this Convention, however, has not yet entered into force. In December 2007 the UNCITRAL has also completed the Draft Legislative Guide on Secured Transactions (text and materials available at: http://www.uncitral.org/uncitral/en/uncitral_texts/payments/Guide_securedtrans.html).

Details on international integration projects concerning security over movable assets can be obtained from C. Bourbon-Seclet, Cross-Border Security Interests in Movable Property: An Attempt at Rationalising the International Patchwork, Part 1, (2005) 20(9) J.I.B.L.R. 419 ff; Part 2 (2005) 20(10) J.I.B.L.R., 501 ff.; M. Bussani, Il diritto delle garanzie reali nella prospettiva transnazionale, in Studi in onore di Piero Schlesinger, Milano, 2004, 849 and D.P. Fernández Arroyo, Las garantías mobiliarias en el derecho del commercio internacional de nuestros días, in 10 Rev. Mex. Der. Int. Priv., 2001, 11.

126. Communication from the Commission to the European Parliament and Council of 12 Feb. 2003, A More Coherent European Contract Law. An Action Plan, COM(2003) 68 fin. (in O.J. C 63, 15.3.2003, 1 ff.), expressly for the security for credit see points 41– 43, 63, 67. The mandate of the EU to approximate rules concerning security rights and/or to create a European security right on its own is discussed by W.-H. Roth, Secured Credit and the Internal Market: The Fundamental Freedoms and the EU’ Mandate for Legislation, in H. Eidenmüller & E.-M. Kineninger (eds.), The Future of Secured Credit in Europe, 36 ff.

Regarding the ‘legislative’ actions taken by the EU Institutions, the main results have been achieved by the financial collateral arrangements envisaged by Directive 2002/47/EC.127 Notwithstanding the limits of any integration brought about by means of a directive, national implementation of this directive has been an important step towards convergence of legal rules in Europe: traditional principles of proprietary security rights, such as the rule of accessority, the rule of specificity, the prohibition of forfeiture clauses, have been eroded by the directive, so that exceptions to such principles have increased homogeneously. Nevertheless, it can also be noted that European legal integration through directives can also produce ‘disintegrative’ impacts.128 In fact, traditional presentations of security rights national regimes may not correspond to the operational level of the empirical solutions developed by the interaction between European and national law. All of this also explains the increasingly urgent need for national legal reform. Of course, it is also because of the inputs from ‘top down’ EU actions that national legislators are undertaking reforms of their legal regimes of security for credit. The main example is France, which has reformed in quite a uniform manner the broad sector of security for credit, including personal and proprietary security over movables and immovables.129

‘Cultural’ integration is represented by academic activity, which is also, in most cases, a consequence of the EU’s interest in the matter, given that the EU Commission is financing an ambitious research network on private law, which includes the law of security for credit.130

Two main approaches can be identified among research projects. One can be termed the ‘cultural approach’ and is the path chosen by the “The Common Core of the European Private Law” of Trento, directed by M. Bussani and

U.Mattei.131 This project aims to deepen comparative law knowledge in Eu-

127.EU Financial collateral directive 2002/47/CE, in O.J. L 168 of 27.6.2002, 43 ff. For the regulation of some aspects of RoT clauses by EU directives see supra, fn. 118.

128.For the essential terms of this paradox see, for all, Ch. Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective, (1997) European Law Journal (ELJ), 378; Id., Disintegrative Effects of Legislative Harmonization: A Complex Issue and a Small Example, in M. Bussani, U. Mattei (eds.), The Common Core of European Private Law, Den Haag, 2003, 105 ff.

129.See supra, fn. 36.

130.Since May 2005, the ‘Study Group on a European Civil Code’ has been part of the Joint Network on European Private Law, a Network of Excellence funded by the European Commission under the Sixth Framework Programme for Research: www.copelc.org.

131.M. Bussani & U. Mattei, The Common Core Approach to the European Private Law, in (1997/98) 3(3) Col. J. E. L., 339 ff.

456 12 · PROPRIETARY SECURITY RIGHTS

rope in order to promote the formation of a truly European legal culture, a feature which seems necessary if any ‘legislative’ legal integration is to be successfully applied throughout Europe. It is well known that any ‘top down’ intervention will be fruitless if national traditions, interpretive usages and mentalities are not nourished and assisted by a European common culture. The factual approach developed by R. B. Schlesinger in the 1950s and 1960s for study of the “common core” in the formation of contracts and the dissociation of legal formants developed by R. Sacco are applied in comparative analysis which measures the degree of convergence or divergence among different legal systems. The main advantage of this technique is that it removes false analogies and false differences produced by merely formal descriptions deriving from the juxtaposition of analyses of individual legal systems made by municipal scholarship. The Common Core research project on security rights over movable assets has been carried out by a group of international researchers directed by Prof. E.-M. Kieninger, which has published its results in 2004.132

A different approach is taken by the Research Team working on Security Rights under the direction of Prof. U. Drobnig (Max Planck Institute for Comparative and International Private Law—Hamburg), within the European network known as the ‘Study Group on a European Civil Code.’133 The aim of this comparative inquiry into the national laws of the member states of the EU is to develop a complete set of rules governing the law of security over movables (as well as personal security contracts). Hence, in this case, the research work is based on a ‘legislative’ approach. Interestingly, the Study Group on the Proprietary Security Rights over Movables seems to have adopted the functional approach, although to an extent and with a meaning not equal to the functionalism of the U.S. Art. 9 U.C.C. Indeed, the provisional text of the black letter rules defines a ‘Proprietary Security Right’ as a category including both ‘formal’ and ‘functional’ security rights. However, a certain degree of differentiation between the legal regime of financial leasing and that of other functional security rights like RoT is still under discussion. A system of registration will be established for all the various domestic security rights—which in a distant future will probably lose their original, national names and become just ‘security rights’—but

132.E.-M. Kieninger (ed.), Security Rights over Movable Property in European Private Law (Cambridge 2004).

133.Ch. v. Bar, The Study Group on a European Civil Code, in The private law systems in the EU: discrimination on grounds of nationality and the need for a European Civil Code, Directorate-General for Research of the European Parliament (DG IV): Legal Affairs Series, W.P. JURI 103, 06/1999: http://www.europarl.eu.int/workingpapers/juri/default_ en.htm.