European Property Rights and Wrongs - Diana Wallis MEP

sense, meaning the fullest right a legal system may confer upon a person with
regard to immovable property, in civil law terminology “ownership” and in common
law terminology “freehold” or “leasehold”. Although in all EU legal systems
buyers and sellers of homes are guided by legal experts (civil law notaries on the
Continent of Europe and solicitors in common law jurisdictions, supported by
land registrars), still the complexities of cross-border transfers may be enormous.
Although the private law status of immovable property (who is owner, are
there, e.g., any servitudes resting on the property?) may be clear from the land
registry – and it should be noted that not all land registries in the EU provide a
full and complete overview of these rights – frequently the public law status is
not so clear. An example of how things can go wrong is the Ley de Costas in
Spain. As a result of this Act, unknowing home owners (also, so it seems, uninformed
by the conveyancing experts who bear the final responsibility for the
legal documentation of the transaction) are now confronted with unexpected
expropriation measures from local authorities, claiming that their homes were
built illegally in environmentally protected coastal regions. In my view, the right
of establishment of EU citizens may be directly affected by such public law limitations,
particularly when they are unknown or difficult to find, and which may
even be seen as capable of hindering, directly or indirectly, actually or potentially,
intra-Community trade. By the latter I refer to the famous CJEU decision in the
Dassonville case. 36 In that case the ECJ expressed its opinion regarding trading
rules having an equivalent effect of restricting trade in the sense of article 34 TFEU
and which are, therefore, not allowed, because they frustrate the creation of an
internal EU market. As a final note it might be interesting to say that the European
Land Registry Association (ELRA) is now working on a Common Conveyancing
Reference Framework as part of its Cross-Border Electronic Conveyancing Project
(CROBECO). 37 This is a remarkable initiative from land registrars, who, using the
available Internet technology and the resulting on-line data interchange of information,
aim to facilitate cross-border transfers by allowing conveyancing experts
who are not from the Member State in which the immovable is located to effect
such transfer. It should be noted, however, that national organisations of con-
36 Case 8/74 (Procureur du Roi v. Dassonville) [1974] ECR 834.
37 More information can be found on the ELRA webpages: www.elra.eu.
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