EAPIL Working Group on Property Law presents Preliminary Draft Proposal for an EU Regulation
By Eva-Maria Kieninger, University of Wuerzburg.
Despite its undeniable commercial importance, international property law has not been subject so far to European unification. Superficially, one might attribute this gap to the universal acceptance of the lex situs rule. But underneath this seemingly harmonious surface, many differences in detail appear. Moreover, the lex situs rule in itself has the potential to create obstacles to cross-border transactions, especially within the EU, because it can trigger a change of the applicable law (a “conflit mobile”) as soon as an asset is moved across borders to another jurisdiction.
After nearly five years of discussion and work, the EAPIL Working Group on International Property Law (Janeen Carruthers, Gilles Cuniberti, Morten Fogt, Iván Heredia, Teemu Juutilainen, Eva-Maria Kieninger, Afonso Patrão, Jonathan Schenk, Teun Struycken (until 2024), Anna Wysocka-Bar; assisted by Niklas Öhrlein and Clara Grunwald), is pleased to present its Preliminary Draft Proposal for a European Regulation on International Property Law. It is available in two versions: (i) text only and (ii) text with comments and comparative notes.
The draft starts from the lex situs principle, but provides a number of special rules, giving limited party autonomy and registration a major role to play: for example, it would be possible for parties to a secured transaction to choose as the applicable law the law of the debtor’s centre of main interests, provided that the state where the COMI is situated allows for the registration of such a choice. For immovables, the group proposes a limited choice of law for the content of a mortgage in order to facilitate cross-border real estate-financing without the need to harmonise mortgage law or introduce a Euro-mortgage. We propose to extend the lex registrationis, which is traditionally applied to aircraft, ships and trains, to regular motor vehicles in order to provide a connecting factor that is more stable than the situs. Other special rules concern cultural objects, assets in transit and assets in the exclusive economic zone. Some of these ideas have already been presented and discussed at a conference on “Rights in Rem” held in Tarragona in April 2024. You can find the conference volume, edited by Maria Font-Mas, here.
The draft proposal is still “preliminary” because in addition to some comments which we received from a group of consultees, we hope to engage with the participants of the forthcoming Geneva conference, at which the draft will be presented on Friday, 18th June. In addition, we encourage the readers of the blog and members of EAPIL to send their remarks to eva-maria.kieninger@uni-wuerzburg.de. All feedback will be considered after the conference and will help us to improve and finalise the text.