Harmonisation of conflict-of-law rules on rights in rem: a guide to the proposal of the european group for private international law (GEDIP)

• Pages: 423-442
• Author: Francisco J. Garcimartín Alférez

HARMONISATION OF CONFLICT-OF-LAW

RULES ON RIGHTS IN REM: A GUIDE

TO THE PROPOSAL OF THE EUROPEAN

GROUP FOR PRIVATE INTERNATIONAL LAW

(GEDIP)*

Francisco J. GarciMartÍn alFére z**

Universidad Autónoma de Madrid

SUMMARY: I. INTRODUCTION.— II. STRUCTURE OF THE PROPOSAL.— III.

TERMINOLOGY: THE CONCEPT OF PROPRIETARY RIGHTS.— IV. SCOPE

OF APPLICATION: 1. Material scope; 2. Universal scope; 3. Temporal sco-

pe.— V. GENERAL RULES: 1. Lex situs principle; 2. Goods in transit or to be

exported and means of transport.— VI. SCOPE OF THE APPLICABLE LAW.—

VII. CHANGE OF APPLICABLE LAW (CONFLIT MOBILE).— VIII. OTHER

PROVISIONS.

I. INTRODUCTION

The purpose of this contribution is to analyse the proposal of the

European Group for Private International Law (GEDIP) on the law

applicable to rights in rem (the «Proposal») 1. The origin of the project

dates back to 2017, when GEDIP approved the suggestion of one of its

members to prepare a text on the law applicable to rights in rem. Private

International Law is largely harmonised in the European Union. In civil

* This paper offers a reduced version of my contribution to the Tribute to Professor S.

Symeonides (forthcoming in the Willamette Law Review).

** Chair Professor of Private International Law at Universidad Autónoma of Madrid

(francisco.garcimartin@uam.es).

1 The text is accessible at Documents – GEDIP (gedip-egpil.eu) (last visited May 6, 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. 423-441

DOI: 10.37417/PILRIRUE/17

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

424 FRANCISCO J. GARCIMARTÍN ALFÉREZ

and commercial matters, there are four main regulations: (i) the Brus-

sels I Regulation on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters; (ii) the Rome I Regulation

on the law applicable to contractual obligations; (iii) the Rome II Reg-

ulation on the law applicable to torts; (iv) and the Insolvency Regula-

tion. In addition, the EU Commission has recently presented a Proposal

on the law applicable to third-party effects of assignments of claims 2.

However, there is no instrument on rights in rem over corporeal assets.

In 2017, GEDIP concluded that there was no justication for this gap

and agreed to work on this issue. The Proposal was formally adopted in

2021. This rst text excluded stolen goods and cultural objects, but in

2023 a consolidated text including a specic chapter on cultural objects

was adopted. The intention is that this Proposal can be used by the Eu-

ropean Commission as a basis for presenting a formal text in this area 3.

II. STRUCTURE OF THE PROPOSAL

The Proposal follows a relatively classical and simple structure

based on other EU PIL instruments, in particular the Rome I Regula-

tion. It contains 18 provisions, which are divided into ve chapters.

Chapter I sets out the material scope of the instrument and its universal

character; it also includes some denitions. Chapter II contains the

general provisions and includes an article on the scope of the applicable

law and another on the conit mobile problem. Chapter III lays down

special rules for cultural objects (due to its particularities, this chapter

is outside the scope of this paper). And Chapter IV and V contain some

provisions dealing with the general problems of the application of the

conict-of-laws rules and the application in time of the proposal.

In this context, it may be important to draw attention to the footnotes

that accompany the various operative provisions. These footnotes pro-

pose several recitals to be inserted in the text. Their purpose is to clarify

the meaning and purpose of the various provisions and thus to provide

a framework for their interpretation and application.

III. TERMINOLOGY: THE CONCEPT

OF PROPRIETARY RIGHTS

The title of the Proposal uses the term «rights in rem» and the pro-

visions refer to «proprietary rights» but with the term «right in rem»

2 Proposal for a Regulation on the law applicable to the third-party effects of assignments

of claims COM/2018/096 nal - 2018/044 (COD) («Proposal on assignments of claims»).

3 It must be noted that the European Association of Private International Law (EAPIL) is

also working on an EU instrument on rights in rem.