The European Community (EC) is an organization of European countries dedicated to increasing economic integration and strengthening cooperation among its members. It has legislative powers conferred by Member-states through the founding treaties.
Whenever this power exist, Member-states lose the ability to legislate. The EC organs are called Institutions and one amongst them is the European Community Court of Justice (ECJ) who has exclusive powers to interpret EC law, which implies that sometimes it may act as a Constitutional Court. Exercising this competence, the ECJ is often called to rule about Member-states legislation compatibility with their European obligations. The main principles laid down by ECJ were the principle of direct effect and the principle of community law supremacy.
The European Community is interested in harmonizing Civil Law in the Member-states and this interest has produced a number of documents and is expressed in several EC acts. The Lando Commission has draft a set of Principles of European Contract Law.
This commission embodies the first effort aiming to harmonize civil law within the EC and was created in 1982 by Ole Lando. It is a non-governmental body of lawyers and academics and it started by drafting a set of Principles of European Contract Law - PECL. The idea of a European Civil Code grounds the existence of the “Study group on a European Civil Code”. The study group constituted itself in 1998, following the international conference entitled Towards a European Civil Code which was organized by the Dutch Ministry of Justice and took place in The Hague in 1997.
Both projects are EC funded, and their basic assumption is that there are significant differences between the national legal systems and that those differences have a negative impact in the European integration. The methodology used in both projects –
PECL and European Civil Code - is quite similar and is more a legislative procedure than a comparative law study. It is not a matter of researching the law within the EC Member-states, but to prepare propositions of law to replace the existing law in the Member-states.
There are two other important projects: The Pavia group and the Trento group. The latter runs the project The Common Core of European Private Law, under the direction of Ugo Mattei and Mauro Bussani, at the University of Trento. The “Pavia Group” has recently published its “European Contract Code – Preliminary draft” containing a body of rules and solutions based on the laws of members of the European Community and Switzerland and covers the areas of contractual formation, content and form, contractual interpretation and effect, execution and non-execution of a contract, cessation and extinction, other contractual anomalies and remedies.
The European Commission has consistently included in some of its official documents the statement that the differences in private law, property law included, in the Member-states are obstacles to the European integration and thus harmonization is required.
Moreover, EC Commission has included these views in the proposals for several Directives and regulations.
The First Council Directive to approximate the laws of the Member-states relating to trade marks (89/104/EEC), the Regulation (EC) No 40/94 on the Community trade mark, the Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs and the Directive 94/47/EC of The European Parliament and The Council of 26 October 1994 are particularly important for this research, as all of them are somehow related to the property legal framework – the latter directly with a right over immovable property and the others with incorporeal property.
Article 295 EC Treaty excludes the property legal framework from the EC competence.
Even so, property law has not completely escaped of the EC law influence and jurisdiction. The ECJ has ruled in several cases that there are some aspects of the
national property law that may conflict with the European integration and thus be incompatible with the EC law. There are several EC freedoms and rights setting the Community requirements that national legal systems must comply with in this specific subject. The most important is the principle of non-discrimination.
This may well be the reason why the European institutions consider that there are differences in the property law in the Member-states that have a negative impact on the European integration. Nonetheless, no studies were commissioned about the property law.
The argument that the differences in the national property laws are an obstacle to the European integration starts with a basic assumption: that there are significant differences in those national regulations. This is not yet demonstrated and I strongly feel that its raison d’etre is the reported conflicts between EC law and the national property law. In fact, Comparative property law is a new subject of research that requires methodological development, as the traditional methodology of comparative law is in crisis.
The first question a researcher must raise in this subject is if there are really significant differences between the various national property laws, especially, the ones related to immovable property. If, after successfully answering that question in a clearly focused subject, significant differences are to be found, then a second research question arises:
do those differences have an impact, positive or negative, in the European integration?
The first research question is a comparative law one, whereas the second is a Comparative Law and Economics, or even purely economic, research question.
This research embodies a Comparative Property Law research with a European Community Law conflict question. It aims to compare the enjoyment rights over immovable property in the EC Member-states and the way those rights are conveyed, so to answer the first question raised when analysing the EC argument that the differences in the national property law are obstacles to the European integration. Furthermore, I
intend to learn if there are nationality or residence based constraints to immovable property ownership in the EC Member-states and, if so, if those legal constraints are compatible with the EC law.
The outcome of this research and its contribution to knowledge is, in the first place, a novel comparative law research methodology and, in the second place, a contribute to an introduction to what may in future be an “European legal theory of the rights in rem”.
The core material of this research is Law: ancient, as to the origins of key concepts such as property and modern as to the present national concepts of property and EC competences. Legal research may be divided into two different proceedings. The first is the search for the relevant legal provisions within a given legal system and the second is the interpretation of those provisions.
The determination of the Jurisdiction or Legal order is essential to narrow the search for the law: there is national law, EC law and International Law, when applicable. After finding the law its time for phase two: legal interpretation. The interpretation of the law follows well-established rules and the first notion that the interpreter must have in mind is that of the nature and elements of the legal rule.
The traditional comparative methodology focus on formal rules that are compared independently of the culture that constitutes and surrounds them. To do so, the comparativist defined the tertium comparationis. This methodology presents several problems and limitations and the various propositions for a new methodology are not adequate to this research. A novel methodology was required.
The methodology used starts with literature review to learn as much as possible about the roots of the various jurisdictions in the EC. The findings allowed the creation of a conceptual framework that grounded a questionnaire to be answered by one legal expert in each jurisdiction.
The questions covered several areas. The first was the concept of immovable thing, the second was the inventory of the existing enjoyment rights in rem and respective contents, object, limits, obligations to the owner and duration. The third area was conveyance, in particular, the form of the contracts, the participating subjects, the conveyance procedure, especially the existence of a national register and the obligation, or not, of the registry. Additionally, the respondents were asked to include brief taxation information related to the conveyance process.
Each of the responses constituted a national framework report and the data thus gathered was horizontally ordered and comparative tables were created.
Further legal research created a conceptual framework for the national constraints to real estate ownership and the EC law and allowed a second questionnaire about this specific issue.