This post has been written by Silvana Canales Gutiérrez, who is a Postdoctoral Researcher at Rovira i Virgili University (Tarragona).
The “First International Seminar on rights in rem in the European Union: General Aspects and International Jurisdiction”, directed by Georgina Garriga (Universitat de Barcelona) and Maria Font (Universitat Rovira i Virgili), took place at the Faculty of Legal Sciences of the Universitat Rovira i Virgili in Tarragona, on 10 and 11 November 2022.
The conference focused on rights in rem, approached from the standpoint of EU private international law (EUPIL) and comparative law, trying to identify the problematic aspects of the “in rem” qualification under the regulatory instruments applicable in the EU (mainly, Regulation (EU) 1215/2012), as well as under Spanish domestic law, owing to the plurilegislative nature of its legal system.
A. The Contents of Rights in Rem from a Comparative Law Perspective
The conference was permeated by an analytical and comparative approach that began with the presentation by Héctor Simón Moreno (Universitat Rovira i Virgili) on “Rights In Rem in Europe: A Comparative Perspective”. The speaker explained the essential differences in the conception of rights in rem existing in common law and civil law legal systems. He argued that these differences affect the dimension of these rights and directly influence their material content, as well as the ways of acquiring, transmitting, or losing these rights, their effects on third parties and the legal actions for claiming them, which can change from system to system.
In the same line of thought, Francisco J. Garcimartín Alférez (Universidad Autónoma de Madrid) pointed to the difficulties in delineating rights in rem in the EU legal order. These difficulties stem from the uncertainties that surround the definition and the terminology relating to this subject-matter both in the normative instruments and in the case law of the EU. However, the speaker deemed it possible to identify certain “key points” of rights in rem, such as the right of ownership and their enforceability against third parties. It is even possible to shape a relatively consistent general definition of rights in rem: although such exact definition cannot be directly extracted from normative texts, it is possible to identify the essential attributes of these rights, that could help in their characterization.
Eva-Maria Kieninger (Julius-Maximilians-Universität Würzburg), addressed the traditional distinction between rights in rem on movable and immovable property. The speaker explained that the general idea of rights in rem existing only on immovable property can also be extended to movable property, through a legal fiction which portrays them not only as an accessory, but also as an integral part of a piece of land. In this regard, the speaker gave the example of solar panels: according to Dutch case law, if their vocation is to remain in the real estate, they can change their status of movable property and become part of the land where they are located. However, the criterion to determine the legal conversion of movable property into real estate presents difficulties in the EU, taking into account that there are neither proposals for unification of the Member States’ land laws, nor domestic proposals within each State to define or regulate such conversion. To solve this legal vacuum at a global level, UNIDROIT developed a proposal for a convention that was adopted in 2019, the “Protocol to the convention on international interests in mobile equipment on matters specific to mining, agricultural and construction equipment” (MAC protocols), which, as of 20 September 2022, has only been signed by six countries and has been ratified by none.
B. The Contents of Rights in Rem in Plurilegislative Legal Systems
From a comparative perspective, rights in rem can be regulated in different ways, especially when dealing with plurilegislative legal systems. This premise was developed by Ángel Serrano Nicolás (Notary in Barcelona), who presented a comparative analysis of the different legal systems coexisting in Spain to regulate rights in rem. In particular, he explained the differences between the Spanish Civil Code and the foral civil regulations of Catalonia, the Basque Country and Navarra, in relation to legal institutions such as usucapio, surface rights, easements, the right of withdrawal and first refusal, and the right of use and habitation, among others.
In the same line of argument, but from a conflict-of-laws perspective, Albert Font i Segura (Universitat Pompeu Fabra) highlighted the exclusive competence of the State in registry matters. This exclusive competence unifies the access, publicity and regulation of rights in rem, facilitating their homogeneity of treatment despite the diversity existing in the Spanish civil regulations. This diversity impacts, in particular, on the regulation of inter-local conflicts (Basque Country), on the administrative control of the registry qualification, on procedural legislation and on the guarantees of the rights in rem. The application of one regulation or another is not easy to establish and this problem cannot always be avoided by means of an agreement on the applicable law. These legal frictions create an inter-regional conflict of laws that is at least debatable, and which has been the subject of decisions by the Constitutional Court on several occasions.
The analysis of the current situation of rights in rem within this panel revealed that there are different ways of conceiving their constituent elements. At the same time, it is not possible to say that there are currently new rights in rem, which are excluded from the applicable regulations, even where they involve electronic contracting with innvoative elements, such as transactions with cryptocurrencies or 3D property rights.
C. International Jurisdiction
Moving on to the subject of international jurisdiction, specifically on Regulation (EU) 1215/2012, the remaining speakers analyzed the most important aspects of this Regulation, pointing to the problems of application of certain of its articles, the alternative interpretations of some of its provisions and, in some cases, making proposals on how to improve its wording or application to meet its objectives in the light of the new challenges facing EUPIL.
Ilaria Pretelli (Institut Suisse de Droit Comparé) began by explaining that the maxim forum rei sitae applies when it comes to actions related to determining the extent, content, ownership or possession of property. This classic relationship between jurisdiction and the place where the property is located is justified by the fact that, for evidentiary purposes, it is necessary to carry out verifications, investigations and expert opinions in the place where the property is located, provided that the claim involves an assessment strictly linked to such place, in accordance with the doctrine developed by the CJEU. However, as regards mixed actions, these may generate a conflict of jurisdictions when they involve a personal right and a right in rem, taking into account that these actions are predominantly in personam. The fact that the contract in dispute concerns immovable property is irrelevant, the immovable nature of the subject matter of the contract being of marginal importance only (e.g. Case C-417/15). This being so, it may be necessary to reconsider the applicability of the forum rei sitae rule in cases where the main object of the action is the claim of a personal right and not of a right in rem.
Ivana Kunda (University of Rijeka) gave an interesting explanation on the recovery of cultural objects under Regulation (EU) 1215/2012. The speaker explained that cultural objects have a special protection, as they are part of the heritage and history of mankind, which means that they do not theoretically belong to a State, but are goods of interest to the society as a whole. Taking the above into consideration, art. 7.4 of Regulation (EU) 1215/2012, whose intention is to protect cultural objects located in the Member States by establishing a specific forum to recover them, has a limitation that is not in line with the objectives of the special protection needed by this type of property. In fact, this provision requires both the defendant and the cultural object to be located in the Member States for the Regulation to be applicable. The speaker proposed a change of this provision, modeled on other RBIbis protective fora, in which the defendant is not required to be domiciled in the Member States in order to be sued in the EU. This same model could be replicated for Art. 7.4 of the Regulation.
Cristina González Beilfuss (Universitat de Barcelona) focused on the problematic assimilation (for civil law) of the trust. In English and Anglo-American law, it is not clear whether the trust is a right in rem: while being included within the property right, there is a split between the rights of the beneficiary and those of the trustee. In contrast, in civil law, the property right is absolute, which makes it necessary to adapt the trust. These different understandings of the trust in civil and common law systems have an impact on the determination of international jurisdiction, since it must be established whether it is an action related to a right in rem, or whether the subject matter of the claim falls under the scope of personal rights. This distinction affects the determination of the forum (Articles 7 and 25 of Regulation (EU) 1215/2012). Additionally, other interpretative doubts arise, concerning, for example, the lack of uniformity and the difficulties in determining the domicile of the trust, or the application of Regulation (EU) 1215/2012 to testamentary trusts (considering that wills are excluded from the scope of application of the Regulation).
Carmen Parra Rodríguez (Universitat Abat Oliba CEU) put forth a proposal for improving Regulation (EU) 1215/2012 as concerns rights in rem over movable property. The speaker remarked that the concept of movable property is not defined in this Regulation, which does not contemplate a specific forum in this respect. Due to this, there are proposals that regard the forum rei sitae as a potential alternative for actions involving movable property, although the mobility of such assets generally makes it difficult to definitively determine the place where they are located. Thus, other fora may be more appropriate to the nature of movable property, such as the defendant’s domicile, the place where the property is registered, the court with the closest ties, or determining jurisdiction by express or implied submission.
Josep Maria Fontanellas Morell (Universitat de Lleida), argued for a relaxation of the exclusive forum of Article 24 of Regulation (EU) 1215/2012. The speaker argued, on the one hand, that the qualification adopted by the CJEU in this respect needs clarification, insofar as it should better delimit the category to distinguish it from other adjacent ones, such as contractual obligations or delictual or quasi-delictual matters. On the other hand, the arguments that justified, at the time, the creation of an exclusive forum should be reconsidered, as they have now partly lost their raison d’être.
D. Future Events
The ideas put forward in the Seminar are the beginning of a debate on the Private International Law of rights in rem, which will continue in the near future. Two other events (open to the general public) on this same subject are scheduled: the first is especially devoted to the perspective of the Spanish and European notary’s office and it will be held (in Spanish) on 13 and 14 June 2023 at the College of Notaries of Catalonia (Barcelona, Spain). The second will be focused on a future instrument on the law applicable to rights in rem. It will take place in 2024 at the University of Barcelona and it will be held entirely in English.