European property law: Competence, integration, and effectiveness

Abstract

Within the European Union property law is, for the most part, governed by the laws of the member states, not unlike in the United States where property law is foremost state law. Only in certain areas fragments of “European” (i.e., European Union) property law can be found. The European Union only has limited competences to legislate, and if it legislates in the field of property law, member states try to limit this by invoking Article 345 of the Treaty on the Functioning of the European Union (TFEU), which on its face even seems to exclude property law completely from any EU interference. EU law, so it looks like, is not seen by member states as a tool to effectively protect property rights, but as undesirable interference in their national systems of property law. Particularly when it comes to effective protection of property rights, it frequently is not the European legislator who is the most important actor, but the Court of Justice of the European Union (CJ EU), by invoking the principle of “effet utile”: EU law should be given full effect by courts to protect, for instance, the rights which consumers have on the basis of both primary (treaty based) and secondary (EU directives and regulations based) law.