EU Property Law — Cross-Border Property Rights and Private International Law

The European Union does not possess a substantive ius in rem comparable to the national property laws of its Member States. Property law remains within the competence of the Member States under the principle of conferral (Article 4 TEU; Article 345 TFEU, which provides that the Treaties “shall in no way prejudice the rules in Member States governing the system of property ownership”). However, the EU has progressively legislated in the field of private international law (conflict of laws) affecting cross-border property relations, and has adopted harmonised measures in related areas such as succession, matrimonial property, credit, and procedural enforcement.

The Lex Rei Sitae Principle

The foundational conflict-of-laws rule for property across all EU legal systems is lex rei sitae — the law of the place where the property is situated governs all questions of in rem rights in immovable property. This principle is universally applied by the Member States and is not displaced by EU regulations. The creation, transfer, modification, and extinction of real rights in land, the priority of competing real rights, and the requirements for registration are all determined by the lex situs. The lex rei sitae also determines the numerus clausus of real rights applicable to the property: a right unknown to the lex situs — such as a trust over land in a civil law jurisdiction — cannot operate as a real right, though it may be given contractual effect.

The EU Succession Regulation (650/2012)

Regulation (EU) No 650/2012 (the EU Succession Regulation), applicable since 17 August 2015, unified the conflict-of-laws rules for succession and wills across all Member States except Denmark, Ireland, and (originally) the United Kingdom. The Regulation introduces the principle of universality: the succession as a whole is governed by a single law determined by the deceased’s habitual residence at the time of death (Article 21). However, the deceased may choose the law of her nationality under Article 22 as the applicable law. Crucially, Article 30 preserves the lex rei sitae for the validity of real rights: if the law of the succession (for example, the law of the habitual residence) does not recognise a real right, that right must be adapted to the closest equivalent right under the lex situs — a process of adaptation (Anpassung, adattamento) required by Article 31.

The Regulation also created the European Certificate of Succession (ECS, Article 62), a standard form certificate that may be used to prove the status of heirs, legatees, executors, or administrators across borders. The ECS does not replace domestic certificates but provides a parallel, uniformly recognised instrument for cross-border succession matters.

Matrimonial Property Regulations (2016/1103 and 2016/1104)

Regulations (EU) 2016/1103 and 2016/1104 — the Matrimonial Property Regulation and the Registered Partnership Property Regulation — entered into force on 29 January 2019. These enhanced cooperation measures apply to eighteen participating Member States. They provide uniform conflict-of-laws rules for matrimonial property regimes, including the effects of marriage on the ownership and management of immovable property. The applicable law is determined by the spouses’ first common habitual residence after marriage, or, failing that, the law of their common nationality at the time of marriage, or, failing that, the law of the state with which they have the closest connection. Spouses may also choose the applicable law by agreement.

These regulations interact with the lex rei sitae in cases where a matrimonial property regime affects real property: the third-party effect of the matrimonial property regime in relation to a transaction concerning an immovable is governed by the lex situs (Article 28(1) of Regulation 2016/1103), preserving the protections of national land registers.

Rome I Regulation and Contractual Property

Regulation (EC) No 593/2008 (the Rome I Regulation) applies to contractual obligations in civil and commercial matters. A contract for the sale of immovable property is governed by the law chosen by the parties (Article 3). In the absence of choice, Article 4(1)(c) provides that a contract relating to a right in rem in immovable property or to a tenancy of immovable property is governed by the law of the country where the property is situated. Where the underlying obligation is subject to one law and the real transfer to the lex situs, dual-regulation problems arise — a situation that the European Parliament’s study on Cross-border acquisitions of residential property (2020) identified as a significant source of complexity for citizens.

European Account Preservation Order (EPO — Regulation 655/2014)

Regulation (EU) No 655/2014 created the European Account Preservation Order (EPO), a procedural mechanism enabling a creditor to obtain a preservation order over a debtor’s bank accounts in multiple Member States through a single application. While the EPO is a personal (monetary) remedy, its interaction with property law arises where the debtor’s assets include immovables: the EPO does not extend to the freezing of real property, but the proceeds of sale of immovables paid into a bank account are within scope. The EPO operates in parallel with national provisional measures preserved by Article 35, including saisie immobilière and Arresthypothek in the lex situs jurisdiction.

Brussels I bis and Property Disputes

Regulation (EU) No 1215/2012 (Brussels I bis) governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Article 24(1) confers exclusive jurisdiction on the courts of the Member State where the property is situated “in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property.” The Court of Justice of the European Union (CJEU) has interpreted this provision strictly: in Weber v. Universal Ogden Services Ltd (C-218/06), the Court held that only proceedings seeking to determine the scope, content, ownership, or possession of immovable property, or the existence of other rights in rem therein, are covered by the exclusive jurisdiction rule. Claims for compensation for damage to immovable property (Reichert and Kockler v. Dresdner Bank, C-115/88) or for the annulment of a sale contract (Gaillard v. Chekili, C-518/99) are not within Article 24(1) because they relate to personal rather than in rem rights.

Cross-Border Mortgage Credit Directive (2014/17)

Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property harmonises standards for mortgage lending across the EU. It imposes pre-contractual information requirements (the European Standardised Information Sheet — ESIS), mandatory creditworthiness assessment, and standards for early repayment and foreign-currency loans. While the Directive does not harmonise substantive mortgage law — the creation, priority, and enforcement of mortgages remain national — it establishes a passporting regime for credit intermediaries (Article 29) and requires Member States to ensure that consumers receive adequate explanations and the right of reflection (Article 14). The European Commission’s 2022 evaluation of the Directive found that it had improved consumer protection but that cross-border mortgage credit remained underdeveloped, representing less than 2% of total EU mortgage lending.

European Land Registry Interconnection

The European Land Registry interconnection is being pursued through the European Land Registry Association (ELRA) and the LARA project (Linking Administration, Registry, and Cadastre). The objective is the creation of a European Land Information System (EULIS) enabling the cross-border electronic exchange of land registry data. ELRA has developed the European Land Registry Interconnection Platform, which provides a single access point for land registry searches across participating Member States. The European Commission’s 2016 study on Land Registration and Cadastral Systems in the European Union identified divergences in registration principles (constitutive vs. declaratory, notarial vs. non-notarial, the scope of overriding interests) as the principal obstacles to full interconnection.

The recent ordonnance of 8 February 2023 implementing the ELRA interconnection in France and the German Land Registry Modernisation Act of 2022 illustrate the gradual convergence toward electronically accessible, standardised land register data. The Regulation on the Digitalisation of Cross-Border Judicial Cooperation (2023) further promotes the electronic transmission of land register extracts and certificates between Member States.

EU property law thus remains primarily a system of conflict-of-laws coordination and sectoral harmonisation rather than substantive unification. The lex rei sitae still anchors the system, while EU instruments create procedural bridges and consumer protections that facilitate cross-border property transactions within the internal market.