Divergences of Security and Property Law in the European Union: The Need for Action

摘要

The main purpose of this article is to evaluate the economic role played by security rights/interests for credit and the positive impact that a well-developed security law system would have both on domestic systems and on the European Single Market in terms of economic growth. The current situation regarding security for credit in the European Union will be analysed by looking at the national substantive laws and the rules of private international law. For the purpose of this analysis two legal families existing within the European Union, common law and civil law, will be considered as the principal reference points because they present substantial and significant differences in their legal philosophies, cultures and traditions. Moreover, the historical role and the influence of common and civil law countries on, first, the European Community and, subsequently, the European Union have always been of fundamental importance. In particular, the legal system of real security for credit in England and Wales and Ireland (common law), and in Germany, France and Italy (civil law) will be considered. Through an in-depth study of the security and property laws in these systems, similar, different and conflicting rules will be highlighted. The present scenario concerning secured transactions within the internal market will be shown to be fragmented, ineffective and inefficient. In addition, possible barriers and impediments to the Single Market will be specified and examined. Finally, possible approaches to overcome the existing barriers will be considered and a two-part proposal will be presented.