Tenancy Law and Procedure in the EU
Research Project co-financed by the Grotius Programme for Judicial Co-operation in Civil Matters
Tenancy law plays a crucial role in the lives of the vast majority of European citizens who do not own their own houses or apartments and, therefore, depend on rented housing.
The complete neglect of this area by the European Union (EU) may once have been justified on account of its small impact on the Common Market. This is no longer defendable in terms of the extension of the European constitution to non-economic values and rights, brought about by the Nice Charter of Fundamental Rights and the current Constitutional Convention, as well as the Tampere Conclusions of establishing an 'area of freedom, security, and justice'.
Indeed, a Union which aims to get closer to its citizens, to facilitate their day-to-day lives and to give them a common sense of justice, as stressed in the Tampere Conclusions, should play an active co-ordinating role in this important field to the benefit of its citizens, notwithstanding the lack of harmonisation powers.
Beyond that, a European role in tenancy law becomes unavoidable to the extent that European law exercises direct influence on national laws.
This is true, firstly, for the enforcement procedure laid down by Regulation No. 44/2001, which allows for a limited scrutiny of foreign judgements under domestic ordre public criteria.
Secondly, the possible adoption of a European Civil Code containing general contract rules would have a massive impact on tenancy law.
This is the case because national special contract rules, which would necessarily reflect diverse national social conditions, would need to co-exist with general European rules uniformly monitored by the ECJ.
This forced juxtaposition of general European and special national rules with conflicting values is likely to result in a conflict-prone and disintegrative situation; to date this has been completely ignored in debate on the European Civil Code project.
Thirdly, the 'new European Constitution' including social rights may also be expected to have - just as the European Convention of Human Rights already has - a significant impact on tenancy law.
If general contract law is unified at European level, a monitoring role of the European constitution in tenancy law may even seem indispensable, as such a role is currently exercised by several national constitutions as applied by national constitutional courts.
Against this background, this project explores the European dimensions of tenancy law in three steps.
In the first step, selected national experts draft comparative surveys of the legal situations in all Member States and some candidate countries.
These reports evaluate national laws with respect to four constitutive features of modern private law:
(1) its constitutional shaping by national constitutions and the European Convention of Human Rights;
(2) the juxtaposition of general contract law and modern protective regulation committed to values of distributive justice;
(3) the increasing role of private governance, i.e. the delegation of public tasks to private actors in the wake of societal complexification and economic deregulation (e.g. the 1998 Italian tenancy legislation under which tenant and landlord associations have to draft equitable standard contracts for the adoption of which tax benefits are granted to the landlord as incentives);
(4) the fair and effective procedural realisation of tenancy law by means of judicial and alternative dispute resolution.
As national tenancy law experts are usually little aware of the Europeanisation of private law, background papers on the basic legal and interdisciplinary dimensions of this project are provided by EUI lawyers, economists and political scientists.
In the second step, the influences of a European Civil Code containing general contract rules and the 'new European Constitution' on national tenancy law will be explored.
To this end, each national report analyses the interface of national special rules and European general rules hypothetically, taking the existing drafts such as the Lando Principles of European Contract Law as reference frameworks.
Beyond this, the possible influence of the 'new European Constitution' will be examined, in particular with a view to the possible replacement of the national by a European constitutional monitoring of general contract law.
In the third step, the opportunities for an 'open method of co-ordination' of national tenancy laws are explored. The analysis focuses on two core issues.
First, the suitability of the main tools of the open method of governance, such as benchmarking, sharing and diffusion of best practices, target-setting and peer review, enable a European co-ordination of national tenancy laws to be tested. Ideally, this analysis may lead to a draft of a Restatement of Basic European Principles of Tenancy Law, in which the procedural and substantive solutions deemed most appropriate could be assembled.
Secondly, the framework conditions to enable a more effective and democratically legitimate co-ordination, in particular through procedures allowing for the participation of all stakeholders concerned, will be scrutinised. In this context, the recommendation, recently endorsed by the European Parliament, of setting up a European Law Institute as a correlate to the successful American Law Institute, will be examined in depth.
As regards objectives, the project is expected to lead to important operational conclusions. Apart from offering the first comparative survey of the field, it should provide an important test case for the feasibility and the desirable scope of a future European Civil Code: if the juxtaposition of European general contract rules and national special rules were to lead to massive value conflicts and legal inconsistencies, this result would provide a strong case against a European Code applicable to internal cases as well.
Moreover, the analysis of the constitutional shaping of this field will show whether the enactment of a European Civil Code renders desirable, as a junctim, a binding constitutional document containing social rights - in order to encounter legitimacy deficits which might otherwise result from the substitution of constitutionally monitored national contract rules by uniform European rules without constitutional monitoring.
Finally, the test of the 'open method of co-ordination' as an instrument of soft integration in private law envisaged in the third part of this project enters completely new and promising research ground. On account of the lack of European legislative competence in the field, an 'open method of co-ordination' would appear to be the only possible role for Europe in enhancing national tenancy laws and procedure.
List of National Reporters
Austria: Brigitta Lurger, Salzburg
Belgium: Cathérine Delforge, Ludivine Kerkmann, Louvain-La-Neuve
Bulgaria: Ekatarina Rousseva, EUI
Denmark: Hans Henrik Edlund, Aarhus
France: Anthony Chamboredon/, Nathalie Boccadoro, Paris
Finland: Tommi Ralli, EUI
Germany: Wolfgang Wurmnest, MPI Hambourg
Greece: Kostas Tsekouras, EUI
Ireland: Aine Ryall, Dublin and EUI
Italy: Umberto Breccia, Pisa, and Elena Bargelli, Pisa
Netherlands: Dolf Rueb, Sharon Kaufmann, Amsterdam
Spain: María Esther Blas-López, Madrid and EUI
Poland: Eva Gromnicka, Przemyslaw Zysk, EUI
Portugal: Sandra Passinhas, Coimbra and EUI
Romania: Larisa Dragomir, EUI
Slovenia: Tomas Kerestez, Maribor
Sweden: Ulf Jensen, Lund
Switzerland: Andreas Furrer, Luzern
Dave Cowan, Bristol
Special Reporter for the Principles of European Contract Law: Oliver Remien, Wuerzburg
Tenancy Plan (in .pdf)
For information contact the scientific coordinator Dr Christoph Schmid