The European Union Development of European Property Law
Hanse Law School in Perspective - Legal Teaching and Cross Border Research after Lisbon, Christine Godt, ed., The Hague, Kluwer, 2011
20 Pages Posted: 18 Jul 2011
Date Written: July 18, 2011
These are exiting times for European Private Law. In 2007 and 2008 the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law presented the outline editions of the Draft Common Frame of Reference (DCFR), completed in 2009 with the full edition. Although the DCFR mainly concerns contract law, other fields of private law are also included. These include tort, unjust enrichment and property law. Although the DCFR increasingly takes the center stage in academic debate, other comparative- and European private law projects also contribute to the further enrichment of the field. Comparative private law scholarship is an increasingly important discipline. Added to this are European private lawyers that focus, rather than on the comparison of legal systems, the development of European Union private law and the influence of European Union law on national law. This European focus creates new challenges such as the combination of knowledge on European Union and private law, the understanding that European Union Law, in particular the European Court of Justice (ECJ), does not care for national classifications of private law and the difficult relationship between European Union law and national law. European private law has, in other words, become a complex and rich discipline that is quickly gaining ground to the cost of national private law. European Property law is a part of this development where, in recent years, much important work is done to uncover similarities and common approaches. This type of analysis is of crucial importance for the further development of European property law because it allows comparatists to move beyond the technical differences between legal systems and focus on the principal compatibility of legal systems to investigate the possibilities for harmonization or the making of European property law. It moreover allows a change of focus beyond the Member State level towards the European level. Such a change in focus will help to overcome differences at the national level. Moreover, it enables an investigation into the effects of European Union law on the law of property, also beyond the specific EU property legislation. Examples of such are emission trading rights, wills and succession and matrimonial property rights. Moreover, also aspects of environmental law (soil protection) and maintenance obligations have effect on property law. Although these are very specific and often technical rules, the effect on the property law systems of the Member States is often very fundamental.
When considering the making of European Private Law, these effects should not be neglected. In fact, the political reality of making European private law often means that through technical regulation more effects can be achieved. This is therefore, not direct but indirect making of European Property Law. Both of these – direct and indirect making of European Property Law - are dealt with in this paper.
Keywords: European property law, European union property law, draft common frame of reference (DCFR)
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