The Role of the (D)CFR in the Making of European Property Law

Abstract

The publication of the DCFR has renewed the discussion on the need for a European Property Law. The study published by Von Bar and Drobnig while the DCFR was prepared, underlines the inter-relatedness of contract and property. Nonetheless, the drafters of the DCFR have chosen to deal with specific aspects of property law only. At a European level, however, there are much more initiatives that could also have been dealt with. Examples of these are insolvency, emission trading rights, and matrimonial property law and succession issues.

Moreover, even when the CFR would stick to the aspects of property law it deals with now, the effect on the national systems of property law will be severe. This does not only apply to Book IX on security interests, but also to the Book VIII on transfer rules that assumes the existence of an Anwartschaftsrecht in Article VIII.2:307 DCFR. Also Article VIII.1:204 DCFR creates a complex relationship between property rights under the DCFR and property rights that exist at a national level. The numerus clausus principle, as it is adhered to by many European legal systems, will have to be redefined or reshaped depending on the form the CFR will eventually take. Also Book X on Trusts will have effects beyond the mere principles in that book. Holding a right on trust is not generally recognized in civil law systems. Although there are developments in this direction in Germany, France and also Italy, other legal systems, such as Dutch law, remain to resist trusts and trust-like instruments. Also here the effects of the CFR on national property law may be severe.

Member States will have to accommodate these European principles. As a result they are deemed to bring their legal systems more into line with each other. Voluntary convergence will result leading to a better functioning internal market and to rules that are likely to apply beyond the mere scope of cross-border transactions. The DCFR therefore already contributes to the making of European Property Law.

Keywords: European property law, European union property law, draft common frame of reference (DCFR)