European-Autonomous Property Rights: Does the EU Operate Its Own Numerus Clausus?

Abstract

Property rights are at the core of property law. They are used to shape relationships between people and things. Their effect is generally against the world (erga omnes) and hence there are limitations on the number and content of those rights. The vast majority of legal systems within the EU operates a numerus clausus – or ‘closed list’ – of property rights. In the past decades, there has been an increase in the making of a European private law: private law rules at the EU level. This does not only concern rules of EU contract law, but increasingly also rules of property law at the EU level. Examples of the latter are rules relating tomortgage credit that influence the content of rights of hypothec, but also rules on the law applicable to international succession- or matrimonial property law cases. At the same time, there is influence of the four basic freedoms (freedom of movement of goods, persons, services and capital) on national private law. In this case law, the Court of Justice of the European Union (CJEU) relies on national law, but also provides its own EU terminology and definitions. This does not mean that a full-fledged law of property arises at the EU level, but it raises the question what system-elements are also present at the EU level. National legal systems generally operate on the basis of a closed system of property rights (a numerus clausus). Existing European Property Law research looks into the rise of European property law and the existence of principles such as the numerus clausus, in European legislation. This article focuses on the Court of Justice of the European Union and investigates whether EU law has its own numerus clausus: a list of property rights defined autonomously in European case law and legislation