National Treatment of Foreign Retention of Title Clauses in Finland – A Restriction to Internal Market Freedoms or Merely an Issue of De Minimis Value?Lumme, Heidi
Opinnäytetyöt 11.9.2019, Gradut ja muut tutkielmat
The aim of this thesis is to develop fact-based arguments on whether the European Court of Justice would regard non-recognition and non-enforcement of a foreign retention of title clause by a Finnish court as a restriction to the free movement of goods or the free movement of capital. The issue is elaborated through a fictional case method between Finland and Germany that reflects an earlier case of the ECJ, Krantz. In that case, the Court did not find a restriction to internal market as the issue was considered “too remote and indirect” – an expression that might hint for an implied de minimis threshold. Consequently, the focus is directed to whether the new developments of the Court’s assessment of the free movement provisions might change the way a situation that resembles Krantz is seen at the current state of the EU. Is it a hindrance or even an obstacle? Or perhaps, could there be a hidden de minimis threshold that the “restriction” at hand merely does not meet? The thesis begins with an introductory chapter, after which it is divided into three parts: two premises and their conclusion. The first part focuses on examining why there is a problem, whilst exploring the literature written on possible alternatives to the reason of the problem, the lex rei sitae rule. Hence, the approach in the second chapter is mostly of private international law. Chapters three and four form a whole and continue from what was concluded in chapter two. Here, the focus is on internal market law. After this, part two begins and the focus shifts to de minimis in the form of the market access test which I see as the most feasible way to include proprietary security rights, such as retention of title clauses. The findings here are that there can indeed be seen to be different de minimis thresholds even with regard to the internal market freedoms, regardless of the ECJ’s express denial. The third part consists of chapters six and seven which aim to provide answers to the research questions and thus construe a theory on how the fictional case could we resolved by the ECJ at this stage of the EU integration.