The Use of the Functional Method In European Union Property Law
Maastricht European Private Law Institute Working Paper No. 2013/7
21 Pages Posted: 6 Mar 2013
Date Written: March 5, 2013
The influence of EU law on the law of property adds a vertical dimension to the otherwise horizontal dimension employed by comparative property lawyers. The traditional functional method can no longer answer the need for modern private law scholarship, especially not EU property scholarship. The traditional functional method is a descriptive method that allows the comparison of functional equivalents at the same level. The dynamics of European integration, however, change the nature of private law by adding a European Union type of functionalism. EU law is focused on the further completion of the internal market and rules that govern the internal market – also known as rules of European economic constitutional law – focus on the effective implementation of EU law in the national legal order. Differences between legal systems of the Member States, how functional equivalent in the traditional sense, cannot survive if they lead to a market access problem. We are therefore in need for a renewed functional method, guided by European economic constitutional law rather than by national law, that better answers to the needs of this new reality.
Keywords: European Union Property Law, Functional Method, Comparative Law
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