Rights in rem in spanish private international law

• Pages: 141-178
• Author: Josep M. Fontanellas Morell

RIGHTS IN REM IN SPANISH PRIVATE

INTERNATIONAL LAW

Josep M. Fontanellas Mo rell*

Universitat de Lleida

SUMMARY: I. INTRODUCTION.— II. INTERNATIONAL JURISDICTION: 1.

General aspects; 2. Institutional private international law: Regulation 1215/2012:

2.1. Corporeal property; 2.2. Incorporeal property; 3. Conventional private interna-

tional law and autonomous private international law.— III. APPLICABLE LAW: 1.

General aspects; 2. General rule; 3. Particular rules; 4. Scope of application of the

rights in rem statute.— IV. RECOGNITION OF DECISIONS AND ACTS.

I. INTRODUCTION

1. It is surprising how such an important part of private law as that

concerning rights in rem has had such limited development in the eld

of private international law (PIL). The apparent simplicity of the rules

governing it and the relatively small volume of case law on the subject

—compared with other areas of patrimonial law, such as contractual and

non-contractual obligations— may partially explain this phenomenon,

but do not fully justify it. Moreover, the occasional presence of rights

in rem in international private relations has been a historically constant

feature of conict-of-laws legal studies. This could be perceived both

when theories of statutes were at its peak —where the solution of con-

* Professor of Private International Law at the University of Lleida (UdL) (josepmaria.

fontanellas@udl.cat). 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 Euro-

pean Private International Law: aspects of international jurisdiction and applicable law» funded

by the Spanish Ministry of Science and Innovation (MICIU/AEI/10.13039/501100011033).

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. 141-178

DOI: 10.37417/PILRIRUE/05

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

142 JOSEP M. FONTANELLAS MORELL

icts concerning rights in rem was often inseparable from that provided

for mortis causa succession 1— and in the codication period that led

to modern PIL —during which the traditional differentiation between

the regulation of rights in rem in movable and immovable property was

maintained in some civil codes of the nineteenth century (including

the Spanish one), but disappeared when these were revised during the

twentieth century, because, in the recodication, pre-eminence was

given to the vis attractiva of the territory (and territorial law) over all

the assets located in it in order to submit them to the solutions of the

locus situs 2.

2. This paper studies the specic rules of PIL for rights in rem

(that is, non-personal rights or claim rights) in things or property (terms

which are understood to be equivalent for these purposes), provided

that they are capable of being appropriated and deemed to have indi-

vidual status —uti singuli; that is, not having universal status or being

integral parts of a legally separate estate (inheritance, matrimonial

property regime, commercial establishment, etc.)—. Of the multiple

classications that can be established between the things or types of

property that are the object of rights in rem, this paper will focus on

two particularly signicant distinctions: one differentiates movable

property from immovable property, and another one separates corporeal

(tangible or material) property from incorporeal (intangible or imma-

terial) property. The sections below will show that the rst distinction

is decisive in current PIL, especially in international jurisdiction. The

second distinction contrasts corporeal property with incorporeal prop-

erty and is also highly signicant, as both types of property are subject

to PIL regimes with substantial divergences.

3. A crucial fact for a correct understanding of the following pages

is that the unifying efforts within European Union law have only partially

taken place in the areas of the international jurisdiction and the recogni-

tion and enforcement of decisions, without yet reaching the applicable

law. This has at least three consequences. Firstly, while the rules of ju-

risdiction and recognition and enforcement are those generally laid down

by an EU instrument, as far as the applicable law is concerned, one must

continue to have recourse to national conict rules which, albeit similar,

are not identical. Secondly, and as a consequence of the above, it will

not be possible within the realm of rights in rem to appeal to a necessary

«coherence» in the formulation and interpretation of the contemporary

1 A. lainé, Introduction au droit international privé contenant une étude historique et

critique de la théorie des statuts. Et de rapports de cette théorie avec le Code civil, t. II, Paris,

Librairie Cotillon/F. Pichon, 1892, pp. 225-228.

2 G. C. Venturini, «Property», International Encyclopedia of Comparative Law, vol.

III, lipstein , K. (ed.), Private International Law, ch. 21, The Hague/Tübingen, Mouton/Mohr

(Siebeck), 1976, pp. 3-7.

RIGHTS IN REM IN SPANISH PRIVATE INTERNATIONAL LAW 143

rules of PIL 3. This is because the observance of this principle is only

enforceable with regard to European Union law and cannot be extended

to the regulation of the Member States, since it is not possible to make

a common interpretation of their provisions that is ultimately approved

by the Court of Justice of the European Union (CJEU). Thirdly, the

problem of characterisation remains to be solved, since the dual sources

mentioned (European and national) mean that it is necessary to use dif-

ferent characterisation criteria to classify the various actions and claims:

ex lege fori when Member States rules must be applied, and autonomous

(that is, uniform) when EU rules of PIL must be applied.

II. INTERNATIONAL JURISDICTION

1. General aspects

4. In international disputes, including those relating to rights in

rem, the rst step to be taken is to establish the court that will adju-

dicate the dispute. Based on the order of preference of the sources in

Spanish PIL, to specify the rules of PIL applicable in the area of the

international jurisdiction, rstly it is necessary to resort to European

regulations —unless these cede their primacy to a specic convention

under rules of compatibility—. If the EU legal instruments are not ap-

plicable owing to the non-fullment of the requirements, recourse must

be had to an international treaty, provided that it can be applied accord-

ing to its particular scope of application. And lastly, in the absence of

European regulations and international conventions, autonomous law

must be called upon.

5. Once transferred to the issue at hand, the structure of the

sources mentioned above leads to an analysis of the relevant rules of

jurisdiction in Regulation 1215/2012 4, the Lugano II Convention (LC) 5

and the Spanish Organic Law on the Judiciary (LOPJ) 6, which are the

3 Concerning «coherence» in European PIL, see J. Von hein and G. rühl (ed.), Kohärenz

im Internationalen Privat- und Verfahrensrecht der Europäischen Union, Tübingen, Mohr

Siebeck, 2016; S. sánchez lorenzo, «El principio de coherencia en el Derecho internacional

privado europeo», REDI, 70-2 (2018), pp. 17-47; and J. Forner DelayGua and A. santos (ed.),

Coherence of the scope of application of EU private international legal instruments, Zürich,

Schultess, 2020.

4 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12

December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and

commercial matters (recast) (OJEU, L 351, 22 December 2012, pp. 1-32).

5 Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforce-

ment of judgments in civil and commercial matters (OJEU, L 339, 21 December 2007, pp. 3-24).

6 Organic Act 6/1985, of 1 July, on the Judiciary (Ley Orgánica del Poder Judicial), BOE,

n. 157, 2 July 1985, pp. 20632-20678. It should be noted, however, that Art. 22 LOPJ was mod-

ied by the Organic Act 7/2015, of 21 July (BOE, n. 174, 22 July 2015, pp. 61593-61660), that

contains the current Spanish autonomous regime of international jurisdiction (pp. 61600-61603).