Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
Seen from this angle, it is justified to attach to retentions of title in imported
goods the proprietary effects of the new lex rei sitae. It is therefore
irrelevant whether the retention of title that is recognized had narrower
or broader effects in the exporter’s country. In the result, therefore, the
decision of the European Court of Justice of 2006 is correct.
8.3. Non-possessory security rights other
than retention of title
8.3.1. Uniform function, but lack of uniform
terminology and regulation
The somewhat vague heading of this section reflects the very considerable
differences not only of terminology but also of substance existing in this
field in the Member States of the EU.
While retention of title is a concept and a type of security in movables
that is used broadly in Europe and understood everywhere in the same
sense – even though some details differ – such uniform understanding is
absent for other types of non-possessory security in movables. The multitude
of terms is already indicative of the substantive differences. English
equivalents of the national institutions and names are terms like chattel
or movable mortgage (England and Italy), non-possessory pledge, and
security transfer of ownership.
The broad variety of names for the various national institutions indicates
considerable variations of the substantive rules. Consequently, the risk of
non-recognition of these security rights upon transfer of the encumbered
asset to another Member State is probably greater than for retentions of
title. The only common denominator of the differing national institutions
is their common economic objective. Non-possessory security rights other
than retention of title typically serve as security for creditors other than
sellers, especially of banks and other financial institutions.
178
Ulrich Drobnig
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