Party Autonomy in International Property Law - Peace Palace Library

8. European Conflict Rules for the Mutual Recognition of Security Rights in Goods
retentions of title created validly in another Member State. The issue here
is even more aggravating, since it is concerned not only with the refusal
of recognition in a specific – although an important – sector of business
(supra 8.2.3 a); rather, it involves the general disregard of any retention of
title created in any other Member State without a ‘data certa’ contract.
In 2005, the EU Commission brought a proceeding against Italy, claiming
that Article 1524 paragraph 1 of the Italian CC violated the Directive;
according to this provision, a retention of title can be upheld only against
the buyer’s creditors if the retention clause is contained in a document
that has a data certa that precedes the date of an execution brought by another
creditor. A later decree added two further conditions. However, the
action failed. 37 The European Court of Justice distinguished between the
effects of a reservation of ownership as between the parties and as against
third persons; it maintained that third parties should not be affected by
the Directive. This reasoning is not convincing.
Nothing in the terms of Article 4 or in the definition in Article 2 of the
Directive 38 justifies the aforementioned distinction. Moreover, restricting
the effect of a retention of title to the internal relationship between
seller and buyer runs counter to the very purpose of the clause, which is
intended to protect the seller against the execution and the insolvency
creditors of the buyer.
However, the result of the decision may be justified on other grounds. In
the field of property law, which is so strongly dominated by the fundamental
principle of lex rei sitae, the duty to recognize retentions of title created
in another Member State may have to be defined differently than in other
fields. A retention of title created validly in another Member State cannot
by virtue of recognition have broader proprietary effects than in the
country of origin. This thesis is to some degree supported by the case law
on imports of merchandise from Italy and Spain: especially the German
courts disregard, consciously or unconsciously, the limited effect that retentions
of title have in the country of exportation. They only apply the
stronger effect that the law of the country of importation attaches. The
ratio is convincing: commercial relations as well as legal certainty demand
within each country one regime of proprietary rights.
37
European Court of Justice 26 Oct. 2006 (C 302 / 05), ECR 2006, 10 597.
38
Cf. texts supra 8.2.1.
Ulrich Drobnig
177
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