The European Union Development of European Property Law

Abstract

These are exiting times for European Private Law. In 2007 and 2008 the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law presented the outline editions of the Draft Common Frame of Reference (DCFR), completed in 2009 with the full edition. Although the DCFR mainly concerns contract law, other fields of private law are also included. These include tort, unjust enrichment and property law. Starting out as a contract law project to answer the call of the European Commission for a more coherent contract law, the drafters soon saw that other fields of private had to be in included to complete the effectiveness of the set of principles and rules they were preparing. The result is an impressive body of principles and rules that can serve as the basis for the development of future European Private Law.European Property law is a part of this development. For many decades the law of property law left alone mainly because the differences between the legal systems of the Member States were considered to be too diverse to reach easy harmonisation. Different from contract law where many legal systems share a common heritage or have developed in a similar direction over time, the law of property in each Member State has remained static and somewhat unique. When legal scholarship mostly focused on comparative law, the law of property was therefore less interesting to many. Of course, a select group of researchers in Europe also compared systems of property law and research results were often surprising. This research has led to the identification of princilpes and leading rules of property law, leaving many other aspects classiefied as technical rules. Such analysis enables us to move beyond the technical differences and focus on the making of European property law. Moreover, it also enables us to look beyond national law to European Union law and the effect this supranational system has on the property law systems of the Member State. Examples of these include initiatives in emmission trading, wills and succession and matrimonial property law. When considering the making of European Private Law, these effects should not be neglected. In fact, the political reality of making European private law often means that through technical regulation more effects can be achieved. This is therefore, not direct but indirect making of European Property Law. The following will provide a short discussion on the direct making of European Property Law after focusing on some prime examples of indirect making of European Property Law. Emission trading, wills and successions and matrimonial law will be used as examples of how often technical rules require substantive and doctrinal changes in the property law systems of the Member States.