The numerus clausus principle in European property law

Within the European Union property law is, for the most part, governed by the laws of the member 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, 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. The European acquis communautaire in the field of property law is to a large extent still unexplored. This study has aimed to shine a light on EU member states property law. It provides an overview of the existing acquis communautaire in property law and presents a proposal for the future development of this field of law. It deals with the influence of the EU’s four freedoms – of goods, persons, services and capital – on national property law and discusses whether or not the EU would have the competence to actively create property law, and the extent to which it has already done so. Having conducted a thorough search on the basis of several key terms of property rights, the author was able to determine the numerus clausus in the development and formation of the system of European property law. The resulting picture of EU member states property law is a fragmented one. National legal systems generally operate on the basis of a closed system of property rights (a numerus clausus). Existing European Property Law research looks into the rise of European property law and the existence of principles such as the numerus clausus, in European legislation. This article focuses on the Court of Justice of the European Union and investigates whether EU law has its own numerus clausus: a list of property rights defined autonomously in European case law and legislation.