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Restitution of Immovable Property

Restitution of Immovable Property. Sjef van Erp. Restitution of Immovable Property. I. Some problem areas (1) The European Legal Map European Union European Economic Area Council of Europe All protect ownership Art. 17 Charter of Fundamental Rights Art. 1, Protocol 1, ECHR.

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Restitution of Immovable Property

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  1. Restitution of Immovable Property Sjef van Erp

  2. Restitution of Immovable Property I. Some problem areas (1) • The European Legal Map • European Union • European Economic Area • Council of Europe • All protect ownership • Art. 17 Charter of Fundamental Rights • Art. 1, Protocol 1, ECHR

  3. Restitution of Immovable Property I. Some problem areas (2) • Differences in (real) property law traditions • Common law • Civil law (French. German, Scandinavian) • Mixed legal systems • Differences in land registration systems • Deed v. Title • Negative v. Positive

  4. Restitution of Immovable Property I. Some problem areas (3) • EU/EEA is an integrated internal market, but: • Lex rei sitae and Lex registrationis rules refer problems to the law of a particular member-state • Furthermore: differences in succession laws • EU attempts to unify or harmonise the law, but lex rei sitae/registrationis, vested interests and legal cultures are difficult to change • Property law systems, valuing, balancing of interests

  5. Restitution of Immovable Property II. Possible solutions (1) • We need an overall European property law framework (including protection of ownership) to solve restitution problems • However: European solutions require respect for national legal traditions, otherwise they may not work • No “nationalisation” of human rights protection (including the right to property)

  6. Restitution of Immovable Property II. Possible solutions (2) • From technical cooperation to legal harmonisation: the EULIS project (www.eulis.org) • CROBECO project - European Land Registry Association (www.elra.eu) • EUI Project: Real Property Law and Procedure in the EU http://www.eui.eu/DepartmentsAndCentres/Law/ResearchAndTeaching/ResearchThemes/ProjectRealPropertyLaw.aspx

  7. Restitution of Immovable Property III. Summary • EU/EEA law cannot go around national property law traditions • EU/EEA law could, however, create a mandatory framework for these traditions • Protection of the right to property should not be “nationalised”

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