Remien-不动产法与欧洲私法

Real Property Law and European Private Law - A Sketch of an Unsurveyed Territory - By Oliver Remien, Würzburg I. Introduction Real property law is not, at least not yet, in the focus of developments and discussions on European private law. Rather, it still retains its quite parochial flavour – and, may be, with good reason. Some will even point to art. Art. 295 EC-Treaty which states: “The Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.” However, art. 295 EC-Treaty only looks straightforward but in reality has been very much diluted so that its real bearing is far from being clear1. It may even be that it does not concern private law issues at all but rather expropriation and enterprise ownership. In the context of the Timesharing Directive 94/472 the question of art. 295 EC-Treaty has been raised in legal writing and in the European Parliament3; however, that Directive leaves the definition of the legal character of timesharing to the Member States and only aims at protecting the consumer, property questions thus are not really dealt with by the directive and a possible conflict with art. 295 EC-Treaty would be far fetched. At any rate, real property law is not exempt from European primary law, especially the freedoms and the principle of non-discrimination. This has important consequences: Restrictions on acquisition of real property by foreigners normally are infringements of the freedom of establishment and the free movement of capital. The ECJ has had to deal with such situations already in a number of cases4. The same applies where in some countries of transformation restitution of expropriated property by national legislation might be limited to the nationals of the restituting state and other persons are excluded; freedom of establishment and principle of non- 1 See Oliver Remien, Zwingendes Vertragsrecht und Grundfreiheiten des EG-Vertrages, Tübingen 2003, 208-213, 448-450 and 458. 2 Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, OJ 1994 L 280/83-87. 3 See with references Remien 208f. 4 ECJ 22.8.1997 – case C-302/97 (Konle ./. Republik Österreich), Rep. 1999 I-3099; 13.7.2000 – case C-423/98 (Albore), Rep. 2000 I-5965; 5.3.2002 – case C-515/99 (Reisch et al ./. Bürgermeister der Landeshauptstadt Salzburg), Rep. 2002 I-2157; 15.5. 2003 – case C-300/01 (Salzmann), Rep. 2003 I- 4899; recently see Stefan Lange, Europarechtliche Vereinbarkeit von Grunderwerbsbeschränkungen, EWS 2004, 389-398; Andreas Knapp, Diskriminierende Grunderwerbsbeschränkungen in der EU, EWS 1999, 409-417. 2 discrimination require the equal treatment of victims of another European nationality. This may not yet have been fully realized everywhere. But what, in a European perspective, is real property law? Regulation 1346/2000 of 29th May 2000 on Insovency Proceedings5 in its artt. 5 and 8 gives some kind of answer. Article 5 concerns Third parties’ rights in rem, and art. 5 (2) and (3) explain: “2. The rights referred to in paragraph 1 shall in particular mean: (a) the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage; (b) the exclusive right to have a claim met, in particuar a right guaranteed by a lien in respect of the claim or by assignment of the claim by way of a guarantee; (c) the right to demand the assets from, and/or to require restitution by, anyone having possession or use of them contrary to the wishes of the party so entitled; (d) a right in rem to the beneficial use of assets. 3. The right, recorded in a public register and enforceable against third parties, under which a right in rem within the meaning of paragraph 1 may be obtained, shall be considered a right in rem.” Charges such as hypothec or mortgage (lit. a), the vindicatio following from the property right (lit. c) and servitudes (lit. d) thus seem to be acknowledged as (real) property rights. Art. 5 (3) seems to add such devices as e.g. the Vormerkung of §§ 883ff. BGB. Art. 8 of the Regulation concerns contracts relating to immoveable property. What is immoveable and what moveable however remains open. II. Registration Whereas in matters of movable property, possession sometimes has an important role to play, in matters of real property possession very often is replaced by registration. Registration of real property has a long tradition6, and systems diverge7. The object of registration may be the title – so one can speak of land title registration – or the legal instrument made between the parties, be it a deed or contract or conveyance; it can have constitutive or declaratory effect only. Whereas in France the contract is decisive and registration declaratory, Switzerland with its diverging cantonal traditions has with its Swiss Civil Code opted for the constitutive Grundbuch 5 Council Regulation (EC) No 1346/2000 of 29 May 2000 on isolvency proceedings, OJ 2000 L 160/1- 18. 6 For a comparative and historical study see Murray Raff, Private Property and Environmental Responsibility, A Comparative Study of German Real Property Law, The Hague 2003. Also Bernd von Hoffmann, Das Recht des Grundstückskaufs, Tübingen 1982, 50ff. 7 For an international overview see Raff 8ff. 3 system, similar to Germany and Austria8. Classification of a given national system from a comparative point of view can be difficult9. With regard to land title registration systems the Torrens, the English and the German Grundbuch system are frequently distinguished10. With all these divergencies, European uniformity in this respect appears as somewhat utopian. Though it may theoretically be an attractive idea, it probably is not even urgently needed in reality. Acquisition of real property means taking roots in a certain territory; thus, one can justifiably be required to acquaint oneself with the applicable local legislation. What, after all, is more territorial than rights affecting territory? A project called European Land Information System – EULIS – seeks to make information on real property rights in a number of member states electronically available anywhere11. However, also persons involved in the project acknowledge that the information provided is of different legal value depending on the kind of registration system of the relevant country12. Thus, the system apparently cannot replace local advice and research. This casts considerable doubt on the legal value of the system as a whole. That the “next logical step” would be “the harmonization or even integration of the national land registries within the EU in one European land registry”13 therefore is a rather bold statement. It first would have to be shown that this is useful and worthwhile. III. Sale of Real Property 1. Impact of EC-Directives? Europe does not have a uniform contract law and the United Nations Convention on the international sale of goods of 11th April 1980 is limited to goods and thus movable property, excluding real property. However, some European Directives could have an 8 See Tuor/Schnyder/Schmid in: Peter Tuor/Bernhard Schnyder/Jörg Schmid/Alexandra Rumo-Jungo, Das Schweizerische Zivilgesetzbuch, 12th ed. Zürich etc. 2002, § 90 I p. 768f. 9 Cf. e.g. on the Netherlands Raff 14f. and Jaap Zevenbergen, Registration of property rights; a systems approach – Similar taks, but different roles, Notarius International 2003, 125-137 (133ff.). 10 Raff 9ff. 11 See a demonstration at http://www.eulis.org ; on the project Hendrik Ploeger/Bastiaan van Loenen, EULIS – At the Beginning of the Road to Harmonization of Land Registry in Europe, ERPL 2004, 379- 387. 12 Ploeger/van Loenen ibid 385f. 13 Ploeger/van Loonen ibid. 386f. 4 impact on real property sales and possible effects of the Principles of European Contract Law (PECL) should be looked at14. Some directives clearly do not apply to sales of real property. Thus, Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises15 according to its art. 1 (1) shall apply “to contracts under which a trader supplies goods or services”. And art. 3 (2) states explicitly that the directive shall not apply to “(a) contracts for the construction, sale and rental of immovable property or contracts concerning other rights relating to immovable property.” Contracts relating to goods to be incorporated into the immovable property or to its repair, however, are within the scope of the directive, according to sentence 2 of art. 3 (2) (a). Directive 97/7 on the protection of consumers in respect of distance contracts16 in its art. 3 on exemptions states in sub-paragraph 1, 4 th indent that the directive shall not apply to contracts “concluded for the construction and sale of immovable property or relating to other immovable property rights, except for rental”. Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees17 is limited to sale of consumer goods, and the latter are defined as “any movable item” in art. 1 (2) (b), with certain exceptions. Also the consumer credit directive 87/10218 excludes credit agreements intended primarily for acquiring or retaining property rights in land or in an existing or projected building and even intended for the purpose of renovating or improving a building as such (art. 2 (1) (a)); and, it further excludes application of some of its provisions to mortgage secured credit, art. 2 (3). Further, Directive 2000/35 on combating late payment in commercial transactions19 also appears to exclude sale of real property. At least, art. 2 no. 1 defines commercial transaction as “delivery of goods or provision of services for remuneration”. And, the commercial agents directive 86/65320 according to art. 1 (2) is limited to commercial agents 14 For a short description of some general facts on the PECL and further references see my report in the framework of the Tenancy Law Project of the European Private Law Forum. 15 Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, OJ 1985 L 372/31-33. 16 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ 1997 L 144/19-27. 17 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ 1999 L 171/12-16. 18 Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, OJ 1987 L 42/48-53. 19 Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions, OJ 2000 L 200/35-38. 20 Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, OJ 1986 L 382/17-21. 5 involved in “the sale or the purchase of goods”. Thus, one could at first sight have the impression that sale of real property is practically systematically excluded from the scope of the directives. But this is not always the case. The Directive 93/13 on unfair terms in consumer contrats21 in its considerations sometimes refers to the seller or sale of goods, but it does not exclude contracts relating to land from its scope of application. Though, according to art. 3 (1) it only applies to a “contractual term which has not been individually negotiated”, but this can be the case also when real property is sold. Thus, the Unfair Terms Directive has the potential of influencing the sale of real property. However, with the exception of the Freiburger Kommunalbauten case to be considered infra this does not appear to have become a matter of practice already. But in the field of financing of real property acquisitions at least in Germany European consumer law has already found much attention – and this via the already mentioned Directive 85/577 on contracts negotiated away from business premises. It is the Heininger saga. Georg and Helga Heininger purchased a flat and for this purpose took out a loan secured by an abstract real property charge, a Grundschuld. Nearly five years later, the Heiningers declared to revoke their declaration of intention to enter into the loan agreement, referring to the German transposition measure of the Doorstep-selling Directive 85/577. And, they sued the bank for reimbursement of the sums they had paid to the bank by way of capital and interest. This means, they wanted to get back from the bank what they had paid to it, as one may suppose against handing over to the bank the flat. The background are unprofitable investments in flats and alledged very close cooperation between banks and certain agents invloved in sale of real property. The – then – German Verbraucherkreditgesetz or Consumer credit act gave the consumer a right to revoke his declaration of intention, but not in case of credit agreements secured by a charge on immovable property. Thus, the case went to the ECJ22 which ruled that the right of cancellation according to art. 5 Doorstep-selling Directive also applied to a secured credit agreement, and further that the national legislator may not impose a time-limit for the cancellation when the consumer has not been duly informed about his right of 21 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ 1993 L 95/29-34. 6 cancellation. Thus, the Heiningers could revoke their declaration of intention concerning the loan and many consumer lawyers rejoiced – but forgot, that loan agreement and sale of the real property, the flat, are different contracts with different parties. Or, aren’t they? German law knows cases where cancellation of one contract can have effects on another contract which is so closely linked that economically there is just one transaction – be it in the sense of the effect of the cancellation of a sale or service contract on the loan agreement or the cancellation of the loan agreement on the sale or service contract. However, with regard to financed real property transactions, the standard is rather strict. Is this still a question of domestic law only or does the Doorstep-selling Directive come into play again? Does the Doorstep-selling Directive have an effect on the question when loan agreement and sale are so closely linked that cancellation of one of the two affects also the other one? This is the, in Germany, hotly debated issue of the cases following Heininger. In the Schulte case submitted by the Landgericht Bochum23, the Advocate General has proposed giving a negative answer24; the effect of cancellation under the Doorstep-selling Directive is left to Member State law. But another request for preliminary reference has already been made by the Oberlandesgericht Bremen, in the case Crailsheimer Volksbank25. In Germany, the Heininger saga goes on – and the issue of the “Schrottimmobilien” – or scratch-flats – is economically important and legally hotly debated. What position ever one takes, this issue is a link between real property sector and European private law. Though, it appears that at least until now the problem is a particular German one and has not yet found much attention or interest in other Member States. Whether this will change or is in a sublime way linked to the fact that many of the scratch-flats are failed post-reunification investments and situated in the area that from 1945 until 1990 constituted the Soviet zone of occupation and then GDR is an open question... 2. Contract and transfer of property 22 ECJ 13.12.2001 – case C-481/99 (Heininger./.Bayerische Hypo- und Vereinsbank AG), Rep. 2001 I- 9945. 23 LG Bochum 29.7.2003 – case 1 O 795/02, NJW 2003, 2612. 24 Opinion of the Advocate General Léger delivered on 28.9.2004 – case C-350/03. 25 OLG Bremen 27.5.2004 – joint cases 2 U 20/02, 2 U 23/02, 2 U 53/02, NJW 2004, 2238; at the ECJ this is case C-229/04. 7 The United Nations Convention on the International Sale of Goods in its art. 4 lit. b) expressly says not to regulate the effects that the sale may have on the property in the good sold. This mirrors the well-known and traditional divergencies in the matter of sale and passing of title and thus is of interest also in the context of real property. Indeed, some systems make a distinction, or better separation between the obligationary contract and the “real contract” (dinglicher Vertrag) which effects the transfer of title (Trennungsprinzip)26. If no such separation is made title may pass on mere agreement or on fulfillment of a further prerequisite such as transfer of possession or registration27. If such a distinction is made the two contracts can as to their validity be considered independently from each other, i.e. in an abstract way (Abstraktionsprinzip), or in their connection, i.e. validity of the obligationary contract which is the causa for the real contract is necessary for the validity of the real contract and thus transfer of title (Kausalitätsprinzip). Whether a further prerequisite such as transfer of possession or registration is required for the transfer of title logically is not precluded by the choice of Abstraktionsprinzip or Kausalitätsprinzip28. France with no separation and strict causality and Germany with separation, abstraction and the further requirements of transfer of possession of movables or registration in case of immovables are two strongly opposite systems in this respect. The merits of these principles have often been debated, especially with regard to movables29. Separation and abstraction are often considered as artificial, but also strict causality without separation has the surprising side of giving absolute effect erga omnes to an in principle only relative contract30. European private law does not (yet ?) touch upon this question. How English real property law fits into this picture seems an interesting question. May it take a position even more extreme than the German one because perhaps the registration alone is decisive? In case the further Europeanization of private law also touches on property law, these questions need to be addressed. And even if regard may first or only be had to movables, real property should not be forgotten. The system adopted for movable property should also be workable for real property. 26 See Fritz Baur/Rolf Stürner, Sachenrecht, 17th ed. 1999, § 5 nos. 40ff.; with respect to movables Lars P.W. van Vliet, Transfer of movables in German, French, English and Dutch Law (2000) 23f., 31f. 27 For movables see Baur/Stürner § 51 no. 2; also van Vliet 23. 28 See on movables and assignment of claims Baur/Stürner § 51 no. 2 with examples.