Apparent conflicts in the characterisation of cross-border transfers of rights in rem and concealed substantive connecting factors for jurisdiction over immovable assets

• Pages: 291-312
• Author: Ilaria Pretelli

APPARENT CONFLICTS

IN THE CHARACTERISATION

OF CROSS-BORDER TRANSFERS OF RIGHTS

IN REM AND CONCEALED SUBSTANTIVE

CONNECTING FACTORS FOR JURISDICTION

OVER IMMOVABLE ASSETS

Ilaria pretelli*

Swiss Institute of Comparative Law

SUMMARY: I. INTRODUCTION.— II. THE PROCESSES OF CHARACTERISATION

(QUALIFICATION) IN PRIVATE INTERNATIONAL LAW: 1. Traditional and con-

temporary connecting factors for rights in rem; 2. «Characterisation» in the concrete

subsumption process or in the development of new legal rules?: 2.1. The process of

characterisation between the two characterisation processes in historical dimension;

2.2. The importance of the conceptual distinction for the interpretation of Article

24(1) of the Brussels I bis Regulation.— III. CROSS-BORDER TRANSFERS OF

RIGHTS In rem AS A MATTER OF CONTRACT: 1. The undisputed contractual

character of cross-border transfers of rights in rem; 2. Avoidance actions of cross-

border transfer of rights in rem as a matter of contract: 2.1. The rationale of the

exclusive character of the forum rei sitae in Reichert; 2.2. Good faith as a connecting

factor in Feniks compared to the Italian case Corkran; 2.3. The principle of effecti-

veness in Reitbauer and Schmidt.— IV. NON-CONTRACTUAL TRANSFERS OF

RIGHTS In rem FALLING WITHIN THE SCOPE OF THE RULE ON RIGHTS In

rem: 1. The scope of the jurisdictional rule on rights in rem; 2 Examples of causes

* Dr. Hab. Senior Research Fellow at the Swiss Institute of Comparative Law. This study

has been conducted in the framework of the research Project I+D+i PID2020-112609GB-I00

«Property rights system over tangible goods in the eld of European Private International Law:

aspects of international jurisdiction and applicable law» funded by the Spanish Ministry of

Science and Innovation (MICIU/AEI/10.13039/501100011033). All the websites mentioned in

this study were visited on 1 April 2024.

PRIVATE INTERNATIONAL LAW ON RIGHTS IN REM IN THE EUROPEAN UNION

DERECHO INTERNACIONAL PRIVADO SOBRE DERECHOS REALES EN LA UNIÓN EUROPEA

Maria Font-Mas (dir.)

ISBN: 978-84-1381-849-8

Madrid, 2024

pp. 291-311

DOI: 10.37417/PILRIRUE/11

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

292 ILARIA PRETELLI

of action falling within the scope of Article 24(1) EU Regulation 1215/2012: 2.1.

Subrogation in actions for damages; 2.2. The Right of pre-emption; 2.3. Common

property; 3. Vis attractiva of the forum rei sitae in litigation on modication of ins-

criptions in national land registers— V. CONCLUSIONS: 1. The characterisation

of cross-border transfers of rights in rem; 2. The use of good faith and effectiveness

as connecting factors for avoidance actions.

I. INTRODUCTION

The purpose of our investigation is to consider how the two rules

explicitly dealing with rights in rem in Regulation 1215/2012, Article

24 and Article 8(4), need to be coordinated with the rule applicable

to Article 7(1) for contracts organising their cross-border transfer.

The solutions offered by the Court of Justice of the European Union

(CJEU) to this problem are also applicable to the corresponding rules

of the 2007 Lugano Convention, namely Articles 22(1), 5(1) and 6(4) 1.

Despite the different source of the two instruments, they both form part

of the EU system of private international law in eri, which will be re-

ferred to, in this paper, as Brussels-Lugano system 2. As of the entry into

force of the 1971 Protocol on the interpretation of the 1968 Brussels

Convention, the CJEU is building a system of EU private international

law. Its quasi-legislative role has been constantly endorsed by the EU

legislator, also by recognising the principles of its jurisprudence as part

of an acquis capable of being «ratied» in subsequent reforms of the

EU Regulations in private international law.

The rules of the Brussels-Lugano system are constantly being

claried, but they are also being developed by the CJEU in a creative

and legislative mode. Clarications on the rationale and the limits of

the connecting factor designed for rights in rem, on its scope and ap-

plication provide a good example of the structural importance of the

Court of justice in the development of a uniform system of law. By

proceeding to characterise, on the one hand, the facts presented by the

case and, on the other hand, the national legal rules which have been

selected to frame the case on the merits, the CJEU is able to act in this

dual function of judge and legislator. Acting in its role of judge, the

CJEU uses the «characterisation» process to decide the case at hands

—minor premise of the judicial syllogism— but at the same time,

acting in its «nomophylactic» function, the CJEU uses the «charac-

1 Convention on jurisdiction and the recognition and enforcement of judgments in civil

and commercial matters, OJ L 339, 21.12.2007, p. 3–41.

2 The CJEU has interpreted the rules of the 1968 Brussels Convention, of the subsequent

Regulations as well as of the 1988 and 2007 Lugano Conventions while in force. The decisions

interpreting these instruments are used as precedents for the interpretation of the rules in force

—which are given, today, by the 2007 Lugano Convention and the 1215/2012 EU Regulation.

It is therefore possible to refer to such uniform body of law as a system.