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European Civil Law

Common rules, principles and projects concerning civil law in the European Union

General Part Law of Obligations: general rules Contracts Non contractual obligations Family Law Law of Succession Rights in Rem Civil Codes



Warning: a European civil code is not yet a reality; however, while that does not happen, we expose a set of rules within the European Union to govern choice of law in civil and commercial matters as well as projects that aim to unify civil law


Rights in rem

Rights in rem: content and general protection


A right in rem confers upon its holder a direct and immediate legal power over a thing, movable or immovable, exercisable without the intermediation of another person's obligation, comprising the powers of use, enjoyment, and disposition as defined by the law of the Member State concerned.

The existence and substance of rights in rem are protected by the right to property, which is a fundamental right common to all European national constitutions. 

It has been recognized on numerous occasions by the case law of the Court of Justice (initially in the Hauer judgment (13 December 1979, ECR [1979] 3727)); and also by the following legal instruments:


Charter of Fundamental Rights

1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 

2. Intellectual property shall be protected.




First Protocol to the European Convention on Human Rights

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.






Deprivation of property 

Deprivation of property is only permitted if it is: 

 - lawful; 

 - in the public interest; 

 - in accordance with the general principles of international law; 

 - reasonably proportionate ("fair balance" test). 




Territoriality

Real rights are governed by the law of the place where the property is situated (lex rei sitae).


Source: article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, which requires adapting rights in rem to the closest equivalent under the law where the property lies.



Numerus Clausus

1. Rights in rem may exist only in the forms and with the content determined by law, in order to safeguard legal certainty and third-party protection. Therefore, individuals can't invent new types of property rights.

2. The Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession allows the creation or transfer by succession of rights in rem as provided by the law governing the succession, while respecting the numerus clausus of rights in rem under national laws. 

3. A Member State should not be required to recognise a right in rem relating to property located in that Member State if the right in rem in question is not known in its law; however, to ensure the effective enjoyment of succession rights across borders, such a right must be adapted to the closest equivalent right in rem under the law of the Member State where the property is located. 

4. In the context of such an adaptation, account should be taken of the aims and the interests pursued by the specific right in rem and the effects attached to it. For the purposes of determining the closest equivalent national right in rem, the authorities or competent persons of the State whose law applied to the succession may be contacted for further information on the nature and the effects of the right. To that end, the existing networks in the area of judicial cooperation in civil and commercial matters could be used, as well as any other available means facilitating the understanding of foreign law. 


Source: recitals (15) and (16) and article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.


Notes: 

1. In common-law influenced systems there is no explicit doctrinal formulation of numerus clausus. However, as only recognized estates and interests bind third parties; courts resist the creation of novel proprietary interests; and new property rights require legislative intervention, functionally, the result is the same: no free creation of rights in rem. This is often described as a 'functional numerus clausus'.

2. EU-ADAPT - EU Adapt is an IT tool designed to help judges, notaries and other legal practitioners dealing with a cross-border succession to find a closest equivalent right in rem. The user can enter in the tool: 

(i) the law of the Member State applicable to the succession (lex successionis); 

(ii) the right in rem existing under the law of the Member State applicable to the succession (right in rem), and; 

(iii) the law of the Member State in which the right in rem is invoked (lex rei sitae). The tool then provides guidance and suggests the corresponding right in rem under the law of the Member State in which the right is invoked.



Publicity: erga omnes effect

By reason of their erga omnes nature, rights in rem require publicity sufficient to ensure legal certainty and the protection of third parties. 

With regard to movable goods, possession is the most frequent and effective form of publicity.

In respect of immovable property, and in accordance with the principle of lex rei sitae, such publicity is ensured through national land registration systems which determine the opposability and priority of those rights. It should therefore be the law of the Member State in which the register is kept which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information.


Sources:  

Recital (18) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

Legal effects of Registration - European Land Registry Association, ELRA.



Qui prior est tempore potior est jure (first in time, first in right)

When multiple rights exist over the same movable and immovable assets, priority rules determine which right prevails.


Notes: 

1. In the absence of harmonisation, the ranking of competing rights in rem is determined by national law, which commonly accords priority to the right first created or rendered opposable, in order to ensure legal certainty and the protection of third parties.

2. At the level of EU law, the article 8 of insolvency Regulation (EU) 2015/848 protects pre-existing rights in rem, reflecting temporal precedence: 'The opening of insolvency proceedings shall not affect the rights in rem of creditors or third parties in respect of tangible or intangible, moveable or immoveable assets, both specific assets and collections of indefinite assets as a whole which change from time to time, belonging to the debtor which are situated within the territory of another Member State at the time of the opening of proceedings.'




Bona Fide (good faith)

The use of a thing is subject to the principle of good faith, which precludes abusive or unfair exercise of property rights and ensures their conformity with legal certainty, social function, and the protection of third parties.