The Politics of Property Law (No property law in CESL, CROBECO moving forward)

by: in Law

Property law's strong ties to the State and the national legal order lead to complications in cross-border settings. As a result, there is a tension between European integration and national property law. 

In the past six months, the European private law debate has been gaining momentum. The publication of the proposal for a Common European Sales Law, much debated already – such as in M-EPLI’s Round Table Conference held on 9 December 2011– brought to light what many property lawyers feared already. Recital 27 of the Common European Sales Law proposal refers all matters of property law to the applicable national law. The reasons for this are understandable – matters of property law are complicated and complex – but not necessarily agreed with. In April 2012, M-EPLI fellow Sjef van Erp, our CSECL colleague Arhur Salomons and I will publish a book on the Future of European Property Law combining contributions that call for a renewed attention to matters of property law. Luckily, the CESL proposal does not mean that property lawyers have stopped working on matters of Europeanisation and harmonisation. In fact, in June 2011 I already reported that the European Parliament has started paying attention to matters of property law. Reason for this attention is the increased focus on cases of land grabbing by Spanish local authorities. It is clear that when attention to protection of ownership is paid, many areas of property law are included. Vice President Diana Wallis MEP, organiser of the June 2011 event, has now published the proceedings of this conference into a booklet, which can be found online. The booklet was presented by VP Diana Wallis herself at the 2nd CROBECO Conference held in Tallinn, Estonia, on 1 and 2 December. The CROBECO project is moving forward and still gaining interest from both inside and outside the European Union. VP Diana Wallis is certainly very interested in the possibilities, having already included ELRA President Gabriel Alonso Landeta in her June 2011 conference. Political attention means that the CROBECO project has entered into the spotlight and is now scrutinised by other stakeholders such as the European notaries (CNUE). Although the notaries give a generally negative opinion, the fact that they are responding can only be applauded and should be considered as a first step towards a new future of property law in the European Union. For the moment, the debate is sometimes difficult, with each participant in the debate primarily defending his own position. Technological developments, especially concerning e-conveyancing and land registration, as well as the political attention through the European Parliament are, however, pushing us all forward. Exciting times therefore lie immediately ahead, where all actors in the conveyancing process, private actors, notaries, solicitors and registrars will have to sit around the table and consider the way forward. We should also consider inviting consumer organisations and banks to the table to complete the stakeholder participation. The uniqueness of this project is that it functions on the basis of existing law, namely both European Union law, such as the Rome-I Regulation, as well as national law, including both private international law (lex rep site) and property law. Participating parties are willing to take a pragmatic approach and seek alternative methods to safeguard the participants’ interests than those provided exclusively by the home Member State. The position of property law is complicated. Its strong ties to the State and the national legal order lead to complications in cross-border settings. The tension between European integration and national property law is obvious. Insofar as movables and claims are concerned some have ventured to make proposals already. Where immovable objects, i.e. land, are concerned, the standard response is that this is a purely internal affair and therefore an exclusive national competence. CROBECO shows how that approach is losing ground and how cross-border transactions in land do create a European and therefore cross-border element. Perhaps that is why it invokes such strong feelings on the various sides of the discussion? Lack of certainty certainly makes it interesting for politics to enter the debate and, as in the case of foreigner-owned land grabbing, might force a way forward.

  • B. Akkermans

    Bram Akkermans is Professor of Property Law. Bram specialises in sustainability and property law and combines property theory with constitutional property and property doctrine to explore how property law can accommodate sustainable thinking. 

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