European Property Rights and Wrongs - Diana Wallis MEP
European Property Rights and Wrongs - Diana Wallis MEP
European Property Rights and Wrongs - Diana Wallis MEP
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since 1994 there are rules to protect buyers. However, these rules only concern<br />
the contractual aspects of the transaction <strong>and</strong>, due to the complexity <strong>and</strong> sensitivity<br />
of property law <strong>and</strong> the differences between legal systems, do not deal with<br />
the property law aspects. 26<br />
Complexity; negative integration<br />
(free movement of persons, services <strong>and</strong> capital)<br />
Besides these positives attempts to harmonise private law, the law of the internal<br />
market, sometimes also referred to as negative integration has effects on property<br />
law. When a person moves to another Member States to establish himself there,<br />
or acquires l<strong>and</strong> as a second residence or as an investment, or seeks to lease the<br />
foreign immovable for profits or hires someone to take care of the l<strong>and</strong> in his absence,<br />
the law of the internal market applies. This law concerns the free movement<br />
of persons, capital <strong>and</strong> services respectively, <strong>and</strong> also has a harmonising effect to<br />
the extent that all similar cases will have to be dealt with in the same manner. 27<br />
The scope to legislate property law<br />
There are major differences between the property law systems of Member States.<br />
However, there is an increasing conviction among academics that these differences<br />
are not such that they cannot be resolved. <strong>Property</strong> law concerns the freedom of<br />
ownership that is at the basis of any functioning economic system, ensuring free<br />
circulation of goods <strong>and</strong> the private entitlement to these. The <strong>European</strong> internal<br />
market, which is sometimes held to be governed by the <strong>European</strong> Economic<br />
Constitution certainly adheres to a concept of freedom of ownership. Contrary to<br />
what sometimes is held, Article 345 TFEU, which states that the treaties do not<br />
prejudice the rules of the Member States governing the system of property ownership,<br />
refers to the principle of neutrality in EU Competition law (meaning that the<br />
26 The differences between systems are not that large in effect. See Sjef van Erp <strong>and</strong><br />
Bram Akkermans (Eds), Ius Commune Casebook for the Common Law of Europe.<br />
Text, Cases <strong>and</strong> Materials on National <strong>and</strong> Supranational <strong>Property</strong> Law (Oxford:<br />
Hart Publishing, 2012).<br />
27 See Bram Akkermans, <strong>Property</strong> Law <strong>and</strong> the Internal Market in Sjef van Erp, Arthur<br />
Salomons <strong>and</strong> Bram Akkermans (Eds.), The Future of <strong>European</strong> <strong>Property</strong> Law (München:<br />
Sellier <strong>European</strong> Law Publishers, 2011)<br />
40<br />
A <strong>European</strong> L<strong>and</strong> Law?