Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
issues together in either one of them. As yet, there is no property Regulation.
Thus, the place for third-party effectiveness is only in Rome I. We
have no other place at present and for the foreseeable future.
Finally, one needs to consider how Article 14 – if deprived of application
to third-party effectiveness – would fit in with the European Treaties.
The Preamble in Recital 43 expressly claims Rome I to accord with the
principle of subsidiarity, laid down in Article 5 of the Union Treaty (formerly
Article 5 of the Community Treaty), because the legislative aim, it
says, could be better achieved at the Community level than at the level
of Member States. The overall legislative aim is, and must be, to build
up and equip with rules on conflict of laws the European Area of Justice;
the Regulation is expressly based on former Article 65 of the Community
Treaty, now Article 81 of the Treaty on EU Functioning. However, not to
include the property effects with regard to third parties in Rome I would,
under present conditions, mean leaving this issue to the legislative competence
of the Member States. 30 As a consequence, it could no longer be
submitted to the European Court of Justice. The issue has been termed by
all the experts as one of utmost importance and intricacy. To exclude it
from Rome I would therefore run counter to the very constitutional idea
on which Rome I was based by the legislator.
10.3.4. Purpose
The overall objective of rules on conflict of laws is to provide certainty
by designating the applicable law where an abundance of competing and
possibly applicable laws produces insecurity. In the European Union, this
central idea takes on a special flavour. The Union is set up to be an area
of freedom, security, and justice, and an internal market ‘without internal
borders’, 31 although it is not able, constitutionally and politically, to provide
unity of substantive law. Union-wide unified rules on the inevitable
conflict of laws are eagerly sought as a way out of this dilemma, and they
30
There is agreement on this result among most authors, although not whether
the result is, or would be, welcome; Flessner (note 6) 38, 39; Sigman / ​Kieninger
(note 5) 54, 55; Garcimartín Alférez (note 5) 235; Bauer (note 5) 301; Plender / ​
Wilderspin (note 4) 379; Martiny (note 4) Article 14 nr. 16; Verhagen / ​van
Dongen (note 2) 12; van der Grinten (note 24).
31
Article 3 (formerly Article 2) of the Union Treaty; Article 26 of the Treaty on
the Functioning of the EU (formerly Article 14 of the Community Treaty).
218
Axel Flessner
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