A european regulation for international property law

• Pages: 403-422
• Author: Eva-Maria Kieninger

A EUROPEAN REGULATION FOR

INTERNATIONAL PROPERTY LAW

Eva-Maria kieninGer *

University of Wuerzburg

SUMMARY: I. INTRODUCTION.— II. DESIRABILITY OF A EUROPEAN RE-

GULATION ON INTERNATIONAL PROPERTY LAW: 1. Lex situs as common

principle but multiple differences in detail: 1.1 Traditional approaches: Spain and

Germany as examples; 1.2 French draft PIL Act: traditional and unilateral; 1.3

Modern approaches: Dutch law as an example; 2. Interim Conclusions; 3. Grea-

ter visibility.— III. SOME CENTRAL POLICY ISSUES: 1. Lex rei sitae versus

freedom of choice of law; 2. Security rights and mobile conict: 2.1 Overview; 2.2

Theoretical level: transposition v acceptance and substitution; 2.3 Advantages of

a European Regulation.— IV. STATE OF REGISTRATION AS CONNECTING

FACTOR FOR REGISTERED MOTOR VEHICLES.— V. CONCLUSION.

I. INTRODUCTION

Although it is a well-known fact for every participant in the project

on «International Rights in rem», it might still come as a surprise to

many who are dealing with European Private International Law (EU-

PIL) only occasionally: There is until today no European Regulation

on the law applicable to property rights. The EU has enacted unied

* Professor for German and European Private Law as well as Private International Law

at the Julius-Maximilians-University Würzburg (JMU). 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 juris-

diction and applicable law» funded by the Spanish Ministry of Science and Innovation (MICIU/

AEI/10.13039/501100011033). Websites mentioned in this study were visited on May 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. 403-421

DOI: 10.37417/PILRIRUE/16

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

404 EVA-MARIA KIENINGER

PIL rules on contractual obligations, 1 tort, unjust enrichment and ne-

gotiorum gestio, 2 divorce, 3 maintenance obligations, 4 succession 5 and

matrimonial property, 6 and has recently published proposals on the law

applicable to the protection of vulnerable adults 7 and on parenthood. 8

So why is international property law left out of the European harmoni-

sation process? May-be the unication of International Property Law is

regarded as superuous because it is already uniform enough through

spontaneous harmonisation? A short tour covering some national PIL

Acts and one recent prominent proposal will show the contrary (below,

II.). The paper will then discuss some core issues such as freedom

of choice of law in proprietary matters and potential solutions to the

long-lasting problem of mobile conict (below, III. and IV.). In doing

so, this contribution will be limited to tangible movables and immov-

ables. In conformity with the two academic proposals, one of which

(GEDIP) 9 is already complete, the other (EAPIL) 10 still under way, this

contribution will not cover intellectual property rights, receivables,

virtual property, tokens, and crypto currencies. 11

1 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June

2008 on the law applicable to contractual obligations (Rome I).

2 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July

2007 on the law applicable to non-contractual obligations (Rome II).

3 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced

cooperation in the area of the law applicable to divorce and legal separation (Rome III).

4 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable

law, recognition and enforcement of decisions and cooperation in matters relating to mainte-

nance obligations.

5 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July

2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance

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

European Certicate of Succession.

6 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced coopera-

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

in matters of matrimonial property regimes.

7 See the Proposal for a Regulation of the European Parliament and of the Council on

jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters

relating to the protection of adults, COM/2023/280 nal.

8 Proposal for a Council Regulation on jurisdiction, applicable law, recognition of deci-

sions and acceptance of authentic instruments in matters of parenthood and on the creation of a

European Certicate of Parenthood, COM/2022/695 nal

9 As to the GEDIP proposal see GarciMartÍn-alFérez, F. p. 423 in this volume.

10 https://eapil.org/what-we-do/working-groups/group-on-property-law. On various

aspects of the EAPIL draft see cuniBerti, G., patrão, a. and schenk, J. p. 477 in this volume.

11 See on these subjects in this volume «Challenges of rights in rem in the digital era»,

p. 631.