CROBECO Different Perspectives. Faculteit der Rechtsgeleerdheid / Faculty of Law Different...

CROBECODifferent Perspectives

Faculteit der Rechtsgeleerdheid / Faculty of Law

Different Perspectives

• I. Introduction

– Different perspectives• Technical (land registrars)• Formal (notaries, solicitors)• Economic (EU services market)

– Blurring of functions– From form to substance



• II. Land registration – From national to international (1)

– Traditionally: Focus on local (national) law– Land (physical property) as a person’s

most valuable asset– Private international law: Lex rei sitae




– Four important developments (a): • De-physicalisation of property • Contractualisation of property law

– Example: securitisation




– Four important developments (b): • The rise of Information Technology (Internet)• Economic integration and the resulting

– Mobilisation of persons, services, goods and capital– Legal integration (positive and negative)



• II. Land registration – From national to international (4)– The rise of Internet (1)

• EULIS (www.eulis.eu)– Intensifying cooperation through ELRA (www.elra.eu)

• E-Justice Portal (e-justice.europa.eu)– Cooperation with European notariats:

www.successions-europe.eu




• Access to data creates a desire to make these data productive, particularly in light of the growing mobility

• More freely available general information will result in a decreasing need to obtain information from specialists




• Risk: Too much information available or incapable of evaluating specific needs

• Specialists (notaries, solicitors and land registrars) are still necessary, not because of a specific formal role, but because of their expert knowledge and experience



• III. Economic integration (1)

– EU, EEA and EFTA– The “economic constitution” of the EU

• Classical liberal freedoms (contract, property, profession and education, business type)

• The “four freedoms” of the internal market: persons, services, goods and capital




– Freedom of establishment results in freedom of services and capital

– The existence of the Euro-zone reinforces this process

– European economic integration: an autonomous process?




– Freedom to provide services• Who is a service provider?

– Notaries– Solicitors– Land registrars




– Freedom of capital• Role of capital providers (especially banks)• Euro-mortgage (eurobonds?)



• IV. The EU legal map (1)

– Major legal traditions• Continental law (various subtraditions)• Common law• Mixed legal systems

– Conveyancing experts• Notaries, solicitors, land registrars




– Although legal diversity exists, still a common framework:• Leading principles and ground rules• Coveyancing experts act in the interest of

parties and the general public (preserving the correctness of the land registry)




– (Draft) Common Frame of Reference (now: Draft EU Sales Law)

– EU mortgage law– EU private international law (sales law,

matrimonial property, succession)– Full faith and credit of deeds?



• V. CROBECO (1)– Purpose: promote cross border transfer of

land and cross border creation of mortgages

– Developing protocols, checklists, multilingual deeds, standard clauses; promoting secure electronic deeds traffic

– Perhaps: add databases with relevant local information?



• V. CROBECO (2)

– Project is of a technical nature and is not aimed at changing national law or the role of conveyancing experts, but intends to• Make the available information accessible and

usable for cross-border transfers• Is the result of the combined impact of IT and

economic integration



• V. CROBECO (3)

– Deed must be valid in all relevant jurisdictions

– Taking into account differences in• Transfer systems (consensual/”traditio”,

causal/abstract)• Land registration sytems



• V. CROBECO (4):

– Different laws may apply to the conveyancing process (a)• Sale

– Choice of law (Rome I)– Culpa in contrahendo (Rome II)– Jurisdiction and enforcement (Brussels I)



• V. CROBECO (5)

– Different laws may apply to the conveyancing process (b)• Transfer/Mortgage:

– Lex rei sitae– Culpa in contrahendo – Jurisdiction and enforcement



• V. CROBECO (6)

– Different laws may apply to the conveyancing process (c)• Lex rei sitae as “loi d’application universelle”?• Does the lex rei sitae discard the freedom of

parties to choose the applicable law?• Does the lex rei sitae thus violate EU law?



• V. CROBECO (7)

– Different laws may apply to the transfer process (d)• Role of conveyancing experts• Responsibility (deontology)• Liability regimes



• VI. Concluding remarks– Information technology and economic integration

result in a changing view on the role of conveyancing experts

– Formal roles become less important: Relevant are knowledge and experience

– Continuing cooperation between the various conceyancing experts is therefore a conditio sine qua non in the interests of parties and the public at large

– Knowledge of national law is still of enormous importance, but also a basic understanding of EU law, p.i.l. and of (neighbouring) legal systems

CROBECO Different Perspectives. Faculteit der Rechtsgeleerdheid / Faculty of Law Different...

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