Rights in rem in europe: a comparative perspective

• Pages: 59-88
• Author: Héctor Simón Moreno

RIGHTS IN REM IN EUROPE:

A COMPARATIVE PERSPECTIVE

Héctor siMón Moreno *

Universitat Rovira i Virgili

SUMMARY: I. INTRODUCTION.— II. THE CURRENT ACQUIS COMMUNAUTAI-

RE: A BASIS FOR HARMONIZATION OF PROPERTY LAW IN EUROPE?.—

III. THE SYSTEM OF PROPERTY LAW IN CIVIL AND IN ANGLO-AMERICAN

LAW: 1. The civil law «ownership» and the common law «freehold»: 1.1. The

civil law «ownership»: 1.2. In Angloamerican law: the doctrine of estates; 2. The

Charter of Fundamental Rights of the European Union and the social function of

the property; 3. Intermediate tenures; 4. The object of property rights; 5. The trust;

6. Condominium; 7. Ways of acquiring and losing property rights; 8. The publi-

cation of property rights.— IV. NEW CHALLENGES IN THE EVOLUTION OF

PRIVATE PROPERTY: 1. Personal data; 2. Robots; 3. Blockchain; 4. Animals; 5.

Fundamental rights and EU private law.— V. CONCLUDING REMARKS.

I. INTRODUCTION

This chapter depicts the general features of the system of property

law in civil law and Anglo-American law with the aim of identifying

the most common characteristics of rights in rem. It also addresses

emerging trends, such as the signicant role of the social function of

the property in order to implement a new special property regime for

primary residences in Spain, that is currently under state supervision,

* Professor of Civil Law at Rovira i Virgili University (URV) (hector.simon@urv.

cat). All the websites mentioned in this study were visited on 20 April 2024. This work is

developed within the framework of the Research Project of the Spanish Ministry of Science,

Innovation and Universities «Vivir en comunidad: nuevas reglas para un nuevo paradigma»

(PID2020-112876GB-C31).

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. 59-87

DOI: 10.37417/PILRIRUE/02

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

60 HÉCTOR SIMÓN MORENO

or the implementation of temporary and shared ownership in the Civil

Code of Catalonia, a great breakthrough as far as the legal nature of the

right of ownership is concerned (e.g. its perpetual nature), as well as

new challenges to the classical model of property law, such as personal

data, robots, blockchain, animals or the role that fundamental rights

may play in adding a human rights dimension to EU private law.

II. THE CURRENT ACQUIS COMMUNAUTAIRE:

A BASIS FOR HARMONIZATION

OF PROPERTY LAW IN EUROPE?

The overall project of the European integration process has been the

establishment of a common market, so the EU has never been concerned

with the establishment of private law rules (i.e. contract, property and

tort law rules) as a national legal order, based on private autonomy or

freedom of contract. As a matter of fact, the EU does not adopt a clear

distinction between private and public law 1 (the EU does not classify the

Treaty Provisions according to their public or private nature as they have

been created based on subject matter and policies). As opposed to na-

tional private law, the goal of achieving a common market has prompted

the creation of a modern concept of private law in the EU: the so-called

European regulatory private law, which surrounds the core of traditional

national private law 2. Accordingly, the main provisions that have been

enacted in the private law eld aim to protect the interests of consumers

and to ensure a high level of consumer protection in the elds of product

safety, digital market, nancial services, food safety and labelling, ener-

gy, travel, leisure and transport 3, based on arts. 114 and 169.2(a) TFEU).

Even though art. 114.1 TFUE does not a priori set any limitation

regarding the issues that may fall under EU competence 4, there are a

number of conditions to be complied with, i.e. the EU may harmonise

a eld insofar as the measures taken contribute to the establishment

1 C. seMMelMann, «Theoretical reections on the public-private distinction and their

traces in European Union Law», Oñati Socio-Legal Series, Vol. 2, Issue 4, 2012, pp. 51 ff.

2 Hans-W Micklitz, «The EU as a Federal Order of Competences and the Private Law»,

in azoul ai, L. (ed.), The Question of Competence in the European Union, Oxford, Oxford

University Press, 2014, pp. 130 ff.

3 See https://comm ission.europa.eu/live-work-travel-eu/consumer-rights-and-com-

plaints_en. A study that provides a comprehensive overview of EU competence in private

law is R. Mańko, EU competence in private law, The Treaty framework for a European pri-

vate law and challenges for coherence, European Parliamentary Research Service, Brussels,

2015. Available at https://pure.uva.nl/ws/files/2552503/168871_Rafal_MANKO_EU_Compe-

tence_in_Private_Law.pdf.

4 See R. schütze, «Limits to the Union’s ‘Internal Market’ Competence(s) Constitutional

Comparisons», in azoulai, L. (ed.), The Question of Competence in the European Union, op.

cit., pp. 216 ff.