Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations

• Author: Eveline Ramaekers,Bram Akkermans
• Published date: 01 May 2010
• Date: 01 May 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00509.x

eulj_509292..314

Article 345 TFEU (ex Article 295 EC),

Its Meanings and Interpretations

Bram Akkermans and Eveline Ramaekers*

The Treaties shall in no way prejudice the rules in Member States governing the system of

property ownership.1

Abstract: Research that has been conducted over the last decades shows that neither the

scope of application nor the exact meaning of Article 345 TFEU (ex Article 295 EC) is

clear from its wording. This article seeks to clarify its meaning through analysis of the

drafting of the Article as well as the use of it by the EU’s institutions and by the Member

States. Article 345 TFEU, formerly Article 295 EC and, before that, Article 222 EEC, is

an Article that limits, but not prevents, the application of the TFEU Treaty as a whole to

the way in which rules of a Member State deal with the right of ownership of undertakings.

The conclusion can be drawn that Article 345 TFEU only concerns the private or public

ownership of undertakings, with which the Community shall not concern itself and which

can thus be regulated by the Member States themselves. Most importantly, the Article

does not concern the content of the right of ownership, nor the objects of a right of

ownership. It does therefore not form an obstacle to the development of a European

property law.

I Introduction

The wording of Article 345 of the Treaty on the Functioning of the European Union,

formally Article 295 EC Treaty (Article 345 TFEU) could make anyone draw the

conclusion that with this clear statement property law is exempted from influence of

European law.2It could suggest that property law is exclusively for the Member States

to regulate and, therefore, that the European legislature has no power to legislate in this

* Bram Akkermans is Assistant Professor European Private Law at the Faculty of Law, Maastricht

University, The Netherlands. Eveline Ramaekers is PhD Researcher European Property Law at the

Faculty of Law, Maastricht University, The Netherlands.

1Article 345 TFEU (ex Art 295 EC).

2The Treaty of Lisbon amending the Treaty on European Union, the Treaty Establishing the European

Community and the preparatory documents show that the text of Art 345 TFEU has not been reconsid-

ered: Arts 294 and 299 EC (now Arts 55, 349 and 355 TFEU and 53 TEU respectively) are dealt with

because they have been changed, but the Articles in between these were not discussed. In respect to Art 345

TFEU nothing has changed in the wording of the Article, apart from the fact that ‘This Treaty’ has been

replaced with ‘The Treaties’, referring to the Treaty on the European Union and the Treaty on the

Functioning of the European Union. As far as the content of the Article is concerned, this change is

irrelevant.

European Law Journal, Vol. 16, No. 3, May 2010, pp. 292–314.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

area. However, there is existing European legislation that deals with property law, there

is proposed legislation that will deal with property law, and there are several decisions

of the European Court of Justice (ECJ) that deal directly and indirectly with matters of

property law.3Practice, in other words, is very different from the presumption of

Article 345 TFEU one might have at first sight. It seems that Article 345 TFEU does

not prevent the European legislature from acting, nor does it seem to prevent the ECJ

from making a ruling that has far-reaching effect in the area of property law.4

The exact meaning and scope of Article 345 TFEU is not entirely clear. Not much is

known about the origins of the Article, nor about its exact meaning and effect on the

rest of the Treaty, or on national law. The phrasing of the Article is unfortunate, its

wording is so broad that the meaning becomes difficult to determine. It might be

because of this that legal scholars, the European Commission and the ECJ all seem

uncertain how to handle this Article. Moreover, the cases where Article 345 TFEU

comes up are not usually fundamental cases. Perhaps these reasons also explain why

literature and case-law is hardly available.5In this article we attempt to search for more

clarity in the meaning of Article 345 TFEU as well as to investigate its use and

interpretation in both legislation and case-law. In order to do so, a look will be taken

at the historical development of the Article as well as the current application of the

Article by the European Commission, European Parliament and, finally, the ECJ.

Taking a look at the existing legislation as well as future legislation is increasingly

becoming more relevant with the nationalisation of banks by Member States in the

current financial crisis.6One of the questions in the work of the European Commission

is whether such nationalisation is to be considered as state aid under Article 86 EC.

However, when Article 345 TFEU would result in the inapplicability of European law

to national property law, the measure nationalising a financial institution would pos-

sibly be exempted from European law and therefore also from the supervision of the

European Commission under Article 106 TFEU.

3Directive 2002/47/EC of the European Parliament and the Council of 6 June 2002 on financial collateral

arrangements, Green Paper Mortgage Credit in the EU COM(2005) 237 final, White Paper on Mortgage

Credit Markets COM(2007) 807 final, Green Paper on Wills and Succession COM(2005) 65 final, and Case

C-367/98, Commission v Portugal [2002] ECR I-4731, para 48. See also Case C-483/99, Commission v

France [2002] ECR I-4781, para 44, Case C-503/99, Commission v Belgium [2002] ECR I-4809, para 44,

Case C-302/97, Klaus Konle v Republik Österreich [1999] ECJ I-3099, and Joined Cases C-515/99, C-519/99

to C-524/99 and C-526/99 to C-540/99, Hans Reisch and others v Bürgermeister der Landeshauptstadt

Salzburg and others [2002] ECR I-2157.

4Case C-117/06, Möllendorf and Möllendorf-Niehuus [2007] ECR I-8361.

5Riegel exclaimed in 1979: ‘Es ist erstaunlich, dass es zu diesen Fragen kaum Literatur gibt, obwohl sie doch

von zentraler Bedeutung sind für die bisherige und künftige Rechts- und Integrationsentwicklung der

EWG.’ (It is astonishing, that there is hardly any literature regarding these questions, even though they are

of crucial importance for the current and future legal and integration development.) (author’s translation);

R. Riegel, ‘Die Einwirkung des europäischen Gemeinschaftsrechts auf die Eigentumsordnung der

Mitgliedstaaten—Zugleich ein Beitrag zur Auslegung von Art. 222 EWGV’, (1979) 11 Recht der Interna-

tionalen Wirtschaft 744–49. See, however, W. Devroe, ‘Privatizations and Community Law: Neutrality

versus Policy’, (1997) 34 CMLRev 267; S. Bartels, ‘Europees Privaatrecht: Over De Bevoegdheidsverdel-

ing Tussen Unie En Lid-Staat Met Betrekking Tot Het Eigendomsrecht’, (1995) 44/4 Ars Aequi 244–251,

Caramelo-Gomes, ‘Unification in the Field of Property Law from the Perspective of European Law’, in

W. Faber and B. Lurger (eds), Rules for the transfer of Movables, a candidate for European Harmonisation

or National Reform? (Sellier European Law Publishers, 2008), 239.

6For example, Exchange of views with Mrs Neelie Kroes, Comissioner for Competition (ECON/6/51938),

Meeting of the Committee for Economic and Monetary Affairs, 6 October 2008, de auditu.

May 2010 Article 345 TFEU (ex Article 295 EC)

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