Nicolas Carette professor

Research Nicolas Carette

Research team

Expertise

Publications (esp) on construction law (e.g. Handbook Construction Law, 2013)

A choice of law rule for the proprietary aspects of B2B transactions as a step further in the EU harmonisation process. 01/11/2021 - 30/11/2025

Abstract

Yearly, billions of tangible movable goods (e.g. cargo) are sold and transported between businesses in the EU. According to the national legislation of each EU Member State (MS), the proprietary ects (e.g. transfer of ownership) of these business-to-business (B2B) transactions are determined by the law of the country of the goods' current location. Hence, the applicable law changes each time these goods are moved from one MS to another. Since each MS autonomously regulates how transfer of ownership takes place, it is possible that the buyer can be regarded as the rightful owner of certain goods under the law of MS A, but not under the law of MS B. In addition, goods are often sold under a 'retention of title clause' (ROTC), meaning that the seller remains owner of the goods until the buyer has honoured his obligations (usually paying the purchase price after the right to withhold payment has expired). Since here, again, each EU MS regulates for itself which variants of a ROTC it recognises, it often occurs that a MS refuses to give effect to a foreign ROTC. For decades, legal experts and studies have suggested that the above-mentioned legal framework has had a severe negative effect on the well-functioning of the EU's internal market. To tackle this, I will study the possibility to adopt a uniform rule at EU level, for the purpose of improving cross-border trade, trust and legal certainty between businesses within the EU.

Researcher(s)

Research team(s)

Project type(s)

  • Research Project

The Principle of Equality of Citizens vis-à-vis Public Burdens: A General Basis for State Liability Not Based on Fault? 01/10/2020 - 30/09/2022

Abstract

It is beyond dispute that the State can be held liable like any other person if it commits a fault that causes damage. A more difficult question is whether it is possible to claim compensation for damage resulting from lawful State intervention. In France and the Netherlands, this is generally possible on the basis of the principle of equality of citizens before public burdens. According to this principle, the State cannot without compensation impose greater burdens on citizens than they need to bear in the public interest. More recently, the highest courts of Belgium have also applied this principle in the context of private property restrictions. However, little is clear as to the precise scope, meaning and function of the principle in Belgian law, and it remains an open question whether the adoption of the principle can be interpreted as a general acceptance of nofault State liability. Therefore, the PhD dissertation aims to elaborate a general framework regarding no-fault State liability and to test this framework against specific applications in property restricting legislation. The theoretical research results will be tested and applied within specific situations and ultimately evaluated, with policy recommendations. The project will be conducted in an intra-disciplinary way and build on insights drawn from property, civil liability, administrative and European law.

Researcher(s)

Research team(s)

Project type(s)

  • Research Project

The Principle of Equality of Citizens vis-à-vis Public Burdens: A General Basis for State Liability Not Based on Fault? 01/10/2018 - 30/09/2020

Abstract

It is beyond dispute that the State can be held liable like any other person if it commits a fault that causes damage. A more difficult question is whether it is possible to claim compensation for damage resulting from lawful State intervention. In France and the Netherlands, this is generally possible on the basis of the principle of equality of citizens before public burdens. According to this principle, the State cannot without compensation impose greater burdens on citizens than they need to bear in the public interest. More recently, the highest courts of Belgium have also applied this principle in the context of private property restrictions. However, little is clear as to the precise scope, meaning and function of the principle in Belgian law, and it remains an open question whether the adoption of the principle can be interpreted as a general acceptance of nofault State liability. Therefore, the PhD dissertation aims to elaborate a general framework regarding no-fault State liability and to test this framework against specific applications in property restricting legislation. The theoretical research results will be tested and applied within specific situations and ultimately evaluated, with policy recommendations. The project will be conducted in an intra-disciplinary way and build on insights drawn from property, civil liability, administrative and European law.

Researcher(s)

Research team(s)

Project type(s)

  • Research Project

Acquisitive prescription. 01/10/2013 - 30/09/2017

Abstract

Acquisitive prescription ("verkrijgende verjaring") is a manner of property acquisition: somebody who has had the possession during a certain period of time of a proprietary right (right of ownership or an in rem right like usufruct), receives that right. The current Belgian legal framework concerning acquisitive prescription is rather complex and illogical. Moreover, recent case law of the European Court of Human Rights gave an important impulse to critical reflection on acquisitive prescription. The subject has an important practical relevance (e.g. sale of a good (e.g. a stolen vehicle) from a vendor, who afterwards appears not to be the owner; cohabitants or heirs become posessers of valuable goods (e.g. bonds) and discussions in reference to the action for revindication in seizure procedures). This research proposal aims to supply a coherent, clear and well-founded comparative law theory with the necessary (policy) recommendations via an in-depth analysis of acquisitive prescription with a thorough and critical analysis of its two constitutive conditions: possession and term. On the one hand, the research will critically analyze the current system of the acquisitive prescription, with a special focus on its justification, and on the other hand it will test its conformity with the national and international sources (principle of equality and protection of ownership) and its value of topicality ("actualiteitswaarde"). The central research question is: To what extent is the current legal framework concerning acquisitive prescription tenable (in the light of national and international evolutions) and which adjustments can be proposed?

Researcher(s)

Research team(s)

Project type(s)

  • Research Project