Säkerhetsrätter på vift – De svenska lagvalsreglerna i en unionsrättslig kontext
Sammanfattning: This thesis addresses choice of law in the area of property law, specifically security rights in movables, in the Swedish legal system. The conformity to EU-law and the impact of EU-law on the Swedish regulations are discussed. This is done by using Swedish legal dogmatic method combined with EU legal methods to present and analyse the regulations. Regarding Swedish law the material is mainly three rulings from the Supreme Court, of which one only regards property rights in criminal law. Some legal literature has also been used to describe the lex lata and analyse the rulings. The Swedish regulation states that a foreign security right only is to persist at the time after it has been taken to Sweden if the rights holder knew, or should have understood, that the chattel would be moved to Sweden. The rights that are not invalidated are only accepted for a limited time, long enough to allow the creditor to secure his rights in another way. Some problems arise from this, firstly there must be possible to create a new security right, in Swedish law this is not always possible. Secondly the creditor has to understad the need for a new security right, something that might not be the case until the debtors bankruptcy. The thesis also describes and analyses the regulations in the treaties of the European Union regarding free movement of goods. Even though property rights are not goods per se, the effect of invalidating security rights are seen on the trade of goods between member states. This would therefore As the Swedish regulations could be considered a hinderance to market access it would be contrary to article 34 TFEU and thereby not allowed if the rules cannot be justified through one of the exceptions found in article 36 TFEU or the principle of mandatory requirements. The ones applicable in the case of the Swedish choice of law-rules would be public policy, coherence of the property law system, or protection of creditors. However due to the case law of the Court of Justice of the European Union the public policy and protection of creditors are very seldom accepted, therefore coherence of the system would be the most probable ground for justification. There are arguments against this ground of justification as well, the most noteworthy the rules are not proportional since they’re not the least invasive to intra-union trade. In conclusion the Swedish choice of law rules contravenes article 34 TFEU without possibility to justification because of the un proportional nature of the rules.
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