Can National Rights in Rem Conflict with EU Law?

In the light of Article 345 TFEU

Abstract

The rights in rem unequivocally falls within the competence of the Member States, occupying a distinctive position within private law: by virtue of its static character, it enables – inter alia – the exercise of the right of disposition. In European Union law, however, the general rule is that, even in areas falling within national competence, Member States must take into account the relevant Union provisions. A notable example is the regulation of the ownership and use of agricultural land, referred to as land policy. Although this area belongs to the competence of the Member States, notwithstanding Article 345 TFEU, which guarantees autonomy in matters of property, stateimposed restrictions serving agricultural policy objectives are subject to the strict constraints arising from the free movement of capital. According to settled case-law, Article 345 TFEU is of no relevance in the field of land policy. By contrast, in the realm of rights in rem, the principle of so-called private law autonomy applies: under this principle, where rights in rem comes into conflict with Union law, its review is permissible only in exceptional circumstances. This study seeks to analyse this line of jurisprudence.