Drafting an eu choice-of-law rule for property rights in means of transport: something old, something new

• Pages: 491-508
• Author: Jonathan Schenk

DRAFTING AN EU CHOICE-OF-LAW RULE

FOR PROPERTY RIGHTS IN MEANS

OF TRANSPORT:

SOMETHING OLD, SOMETHING NEW

Jonathan schenk*

University of Antwerp

SUMMARY: I. INTRODUCTION.- II. WHY AND FOR WHICH KINDS OF MEANS

OF TRANSPORT IS A SPECIAL CHOICE-OF-LAW RULE DESIRABLE?.- III.

TERMINOLOGY.- IV. CONNECTING FACTOR: 1. Connecting factor for water-

craft.- 2. Connecting factor for aircraft.- 3. Connecting factor for railway vehicles.-

4. Connecting factor for motor vehicles.- V. CONCLUSION.

I. INTRODUCTION

1. Since the Treaty of Amsterdam, the EU has increasingly adopt-

ed private international law (PIL) instruments 1. While many of these

* PhD candidate at the University of Antwerp (jonathan.schenk@uantwerpen.be), funded by

the Research Foundation Flanders (FWO - 11I8422N). Parts of this study have been conducted

in the framework of the Working Group on International Property Law of the European Asso-

ciation of Private International Law (EAPIL). The author extends his gratitude to this Working

Group’s members for sharing their valuable insights during the discussions on the topic of this

paper. Special thanks are due to prof. dr. Eva-Maria Kieninger for her input to the section on

motor vehicles. In addition, the author thanks his colleagues from the University of Antwerp,

prof. dr. J. Meeusen, dr. Wout De Cock, Helga Luku, and Fien Van Reempts, for providing

valuable feedback on an earlier draft of this text. All the websites mentioned in this study were

visited on 5 May 2024.

1 For a more comprehensive discussion of this topic with additional context, see C. S.

rapatz, Das Internationale Privatrecht der EU Vorbild oder Vormacht?, Tübingen, Mohr Sie-

beck, 2023, pp. 1-32.

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. 491-507

DOI: 10.37417/PILRIRUE/21

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

492 JONATHAN SCHENK

instruments contained conict-of-law rules on a wide range of issues 2,

choice-of-law rules regarding property law matters have largely 3 re-

mained untouched. However, despite the absence of legislative propos-

als in this eld, considerable attention has been devoted to academic

work 4 on a comprehensive EU instrument concerning property rights in

tangible assets in recent years. This research will prove valuable should

the EU legislator indeed decide to adopt such an instrument.

2. If the EU legislator were indeed to decide to embark on that

path, it is highly probable that the lex situs (lex rei sitae) principle

would be chosen as the ‘general’ rule for determining the applicable

law to tangible assets 5, given its ancient lineage and widespread global

application as the fundamental principle in choice-of-law rules concern-

ing tangible property 6. According to the lex situs principle, the assets’

2 For example, contractual obligations (Regulation 593/2008 of the European Parliament

and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)),

non-contractual obligations (Regulation 864/2007 of the European Parliament and of the Council

of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)), and insolvency

proceedings (Regulation 2015/848 of the European Parliament and of the Council of 20 May

2015 on insolvency proceedings (Insolvency Regulation)).

3 Several EU PIL instruments have touched upon property law matters. See, e.g., Art.

22 Council Regulation 2016/1103 of 24 June 2016 implementing enhanced cooperation in the

area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters

of matrimonial property regimes (Matrimonial Property Regime Regulation), providing the

possibility for spouses to designate the applicable law to their matrimonial property regime.

Art. 22 Council Regulation 2016/1104 of 24 June 2016 implementing enhanced cooperation

in the area of jurisdiction, applicable law and the recognition and enforcement of decisions

in matters of the property consequences of registered partnerships (Registered Partnership

Regulation) offers a similar approach for the property consequences of partners’ registered

partnerships. Art. 31 Regulation 650/2012 of the European Parliament and of the Council of 4

July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and accep-

tance and enforcement of authentic instruments in matters of succession and on the creation

of a European Certificate of Succession (Succession Regulation) imposes the obligation of

‘adaptation of rights in rem’ on Member States. This entails that a Member State must adapt a

property right to the closest equivalent property right under its own law, whenever a property

right, to which a person is entitled under the law applicable to the succession, is not known

to the law of that Member State.

4 Numerous (groups of) legal scholars have been conducting research on one single

comprehensive EU instrument regarding choice-of-law rules for property rights in tangible

assets in recent years. See, e.g., the ongoing work conducted by GEDIP (Working Paper «The

law applicable to rights in rem in corporeal assets» of 17 September 2023, accessible on gedip-

egpil.eu), and by the Working Group on Property Law of the European Association of Private

International Law (eapil.org). See also the recent Spanish research project «Regime of rights

in rem over tangible property in European private international law: issues of international

jurisdiction and applicable law».

5 This choice was also made by GEDIP. Art. 4 (General rule) of its Working Paper (re-

ference in footnote 4) stipulates: «The proprietary rights in an asset are governed by the law of

the State within the territory of which the asset is located».

6 B. akkerMans and E. raMaekers, «Lex rei sitae in perspective: national developments

of a common rule?», in akkerMans, B. and raMaekers, E. (eds.), Property Law Perspectives,

Cambridge, Intersentia, 2012, pp. 125-128; J. carrascosa Gonz ález, «Rights in rem, property

and trust», in calVo caraVaca, A-L. and carrascosa González, J. (eds.), European Private In-