EU Regulation on Succession and Wills: Commentary 9783504384524

Table of contents :
Preface
List of Authors
Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession
Introduction
Chapter I: Scope and Definitions
Chapter II: Jurisdiction
Chapter III: Applicable Law
Chapter IV: Recognition, Enforceability and Enforcement of Decisions
Chapter V: Authentic Instruments and Court Settlements
Chapter VI: European Certificate of Succession
Chapter VII: General and Final Provisions
Annex: Commission implementing Regulation (EU) 1329/2014
Glossary
Index

Citation preview

EU Regulation on Succession and Wills Commentary

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sellier european law publishers

EU Regulation on Succession and Wills Commentary

Ulf Bergquist • Domenico Damascelli Richard Frimston • Paul Lagarde • Felix Odersky Barbara Reinhartz

This volume is written by

Introduction Articles 1-3 Articles 4-19 Articles 20-38 Articles 39-58 Articles 59-61 Articles 62-84 Glossary

Paul Lagarde Richard Frimston Felix Odersky Paul Lagarde Ulf Bergquist Domenico Damascelli Barbara Reinhartz Richard Frimston

To be cited as Lagarde, in Bergquist et al., EU Succession Regulation (2015), Introduction para. 1 Bergquist, in Bergquist et al., EU Succession Regulation (2015), Introduction Ch. IV para. 1 Reinhartz, in Bergquist et al., EU Succession Regulation (2015), Art. 74 para. 1

The Deutsche Nationalbibliothek lists this publication in the Deut­sche Na­tio­nalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. Verlag Dr. Otto Schmidt KG Gustav-Heinemann-Ufer 58, 50968 Köln Tel. +49 221 / 9  37  38-01, Fax +49 221 / 9  37  38-943 [email protected], www.otto-schmidt.de ISBN (print)  978-3-504-08001-3 ISBN (eBook)  978-3-504-38452-4

© 2015 by Verlag Dr. Otto Schmidt KG, Köln All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per­mis­sion of the publisher. The paper used is made from chlorine-free bleached materials, wood and acid free, age resistant and environmentally friendly. Typesetting: fidus Publikations-Ser­­­vice GmbH, Nördlingen Printing and binding: Friedrich Pustet, Re­gens­burg Printed in Germany.

Preface We, the authors of this Commentary, hope that it will be a useful handbook for those practitioners working with international succession law in all the countries of the European Union. With this in mind, this Commentary has been published in English, German and French. We were (almost) all members of the EU Commission’s expert group set up to draft the EU Regulation on succession. We are from six different Member States. Some of us are professors and some practising lawyers. With this background, we hope to be able to look at the Regulation from different angles and with different experiences. Although there has been one main author for each chapter, we have all had the opportunity to comment on what each of the others has written. However, on one point we have not been able to come to a common opinion. The authors of the various chapters of the commentary on the Regulation can be found on page iv. We want to thank the publishers, Verlag Dr. Otto Schmidt for the work with the English and German versions and Dalloz for the French version. We also want to thank Anne Villeneuve (French), Bernard Vowles (English) and Christoph Altvater (German) for translation work, and AnnChristine Wiklund and Kerstin Ulveland for secretarial work. December 2014

Ulf Bergquist, Stockholm Domenico Damascelli, Bologna Richard Frimston, London Paul Lagarde, Paris Felix Odersky, Dachau Barbara Reinhartz, Amsterdam

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List of Authors Ulf Bergquist Senior partner in Bergquist & Partners Law Firm, Stockholm Domenico Damascelli Associate Professor of International Law at the University of Salento; Civil Law Notary in Bologna Richard Frimston Solicitor and Notary Public, Russell-Cooke LLP, London Paul Lagarde Emeritus Professor, University Paris Panthéon-Sorbonne (Paris I); Member of the Institute of International Law Felix Odersky Notary Public, Notare Dr. Mayr und Dr. Odersky, Dachau Barbara Elisabeth Reinhartz Professor of notarial law, Universiteit van Amsterdam

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Table of Contents Preface List of Authors

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

v vii

1

Introduction

20

Chapter I: Scope and Definitions

38

Chapter II: Jurisdiction

64

Chapter III: Applicable Law

119

Chapter IV: Recognition, Enforceability and Enforcement of Decisions

183

Chapter V: Authentic Instruments and Court Settlements

233

Chapter VI: European Certificate of Succession

245

ix

Table of Contents

Chapter VII: General and Final Provisions

309

Annex: Commission implementing Regulation (EU) 1329/2014

309

Glossary

365

Index

385

x

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 81(2) thereof, Having regard to the proposal from the European Commission, Having regard to the opinion of the European Economic and Social Committee,1 Acting in accordance with the ordinary legislative procedure,2 Whereas: (1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market. (2) In accordance with point (c) of Article 81(2) of the Treaty on the Functioning of the European Union, such measures may include measures aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction. (3) The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition of judgments and other decisions of judicial authorities as the cornerstone of judicial cooperation in 1 2

OJ C 44, 11.2.2011, p. 148. Position of the European Parliament of 13 March 2012 (not yet published in the Official Journal) and decision of the Council of 7 June 2012.

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(4)

(5)

(6)

(7)

(8)

3 4 5

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civil matters and invited the Council and the Commission to adopt a programme of measures to implement that principle. A programme of measures for( implementation of the principle of mutual recognition of decisions in civil and commercial matters,3 common to the Commission and to the Council, was adopted on 30 November 2000. That programme identifies measures relating to the harmonisation of conflict-oflaws rules as measures facilitating the mutual recognition of decisions, and provides for the drawing-up of an instrument relating to wills and succession. The European Council meeting in Brussels on 4 and 5 November 2004 adopted a new programme called ‘The Hague Programme: strengthening freedom, security and justice in the European Union’.4 That programme underlines the need to adopt an instrument in matters of succession dealing, in particular, with the questions of conflict of laws, jurisdiction, mutual recognition and enforcement of decisions in the area of succession and a European Certificate of Succession. At its meeting in Brussels on 10 and 11 December 2009 the European Council adopted a new multiannual programme called ‘The Stockholm Programme – An open and secure Europe serving and protecting citizens’.5 In that programme the European Council considered that mutual recognition should be extended to fields that are not yet covered but are essential to everyday life, for example succession and wills, while taking into consideration Member States’ legal systems, including public policy (ordre public), and national traditions in this area. The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. In the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession must be effectively guaranteed. In order to achieve those objectives, this Regulation should bring together provisions on jurisdiction, on applicable law, on recognition or, as the case may be, acceptance, enforceability and enforcement of decisions, authentic instruments and court settlements and on the creation of a European Certificate of Succession. OJ C 12, 15.1.2001, p. 1. OJ C 53, 3.3.2005, p. 1. OJ C 115, 4.5.2010, p. 1.

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(9) The scope of this Regulation should include all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a Disposition of Property upon Death or a transfer through intestate succession. (10) This Regulation should not apply to revenue matters or to administrative matters of a public-law nature. It should therefore be for national law to determine, for instance, how taxes and other liabilities of a public-law nature are calculated and paid, whether these be taxes payable by the deceased at the time of death or any type of succession-related tax to be paid by the estate or the beneficiaries. It should also be for national law to determine whether the release of succession property to beneficiaries under this Regulation or the recording of succession property in a register may be made subject to the payment of taxes. (11) This Regulation should not apply to areas of civil law other than succession. For reasons of clarity, a number of questions which could be seen as having a link with matters of succession should be explicitly excluded from the scope of this Regulation. (12) Accordingly, this Regulation should not apply to questions relating to matrimonial property regimes, including marriage settlements as known in some legal systems to the extent that such settlements do not deal with succession matters, and property regimes of relationships deemed to have comparable effects to marriage. The authorities dealing with a given succession under this Regulation should nevertheless, depending on the situation, take into account the winding-up of the matrimonial property regime or similar property regime of the deceased when determining the estate of the deceased and the respective shares of the beneficiaries. (13) Questions relating to the creation, administration and dissolution of trusts should also be excluded from the scope of this Regulation. This should not be understood as a general exclusion of trusts. Where a trust is created under a will or under statute in connection with intestate succession the law applicable to the succession under this Regulation should apply with respect to the devolution of the assets and the determination of the beneficiaries. (14) Property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, should also be excluded from the scope of this Regulation. However, it should be the law specified by this Regulation as the law applicable to the succession which determines whether gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death should be restored or accounted for for the 3

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purposes of determining the shares of the beneficiaries in accordance with the law applicable to the succession. (15) This Regulation should allow for the creation or the transfer by succession of a right in immovable or movable property as provided for in the law applicable to the succession. It should, however, not affect the limited number (‘numerus clausus’) of rights in rem known in the national law of some Member States. A Member State should not be required to recognize a right in rem relating to property located in that Member State if the right in rem in question is not known in its law. (16) However, in order to allow the beneficiaries to enjoy in another Member State the rights which have been created or transferred to them by succession, this Regulation should provide for the adaptation of an unknown right in rem to the closest equivalent right in rem under the law of that other Member State. In the context of such an adaptation, account should be taken of the aims and the interests pursued by the specific right in rem and the effects attached to it. For the purposes of determining the closest equivalent national right in rem, the authorities or competent persons of the State whose law applied to the succession may be contacted for further information on the nature and the effects of the right. To that end, the existing networks in the area of judicial cooperation in civil and commercial matters could be used, as well as any other available means facilitating the understanding of foreign law. (17) The adaptation of unknown rights in rem as explicitly provided for by this Regulation should not preclude other forms of adaptation in the context of the application of this Regulation. (18) The requirements for the recording in a register of a right in immovable or movable property should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept (for immovable property, the lex rei sitae) which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In particular, the authorities may check that the right of the deceased to the succession property mentioned in the document presented for registration is a right which is recorded as such in the register or which is otherwise demonstrated in accordance with the law of the Member State in which the register is kept. In order to avoid duplication of documents, the registration authorities should accept such documents drawn up in 4

Recitals

another Member State by the competent authorities whose circulation is provided for by this Regulation. In particular, the European Certificate of Succession issued under this Regulation should constitute a valid document for the recording of succession property in a register of a Member State. This should not preclude the authorities involved in the registration from asking the person applying for registration to provide such additional information, or to present such additional documents, as are required under the law of the Member State in which the register is kept, for instance information or documents relating to the payment of revenue. The competent authority may indicate to the person applying for registration how the missing information or documents can be provided. (19) The effects of the recording of a right in a register should also be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept which determines whether the recording is, for instance, declaratory or constitutive in effect. Thus, where, for example, the acquisition of a right in immovable property requires a recording in a register under the law of the Member State in which the register is kept in order to ensure the erga omnes effect of registers or to protect legal transactions, the moment of such acquisition should be governed by the law of that Member State. (20) This Regulation should respect the different systems for dealing with matters of succession applied in the Member States. For the purposes of this Regulation, the term ‘court’ should therefore be given a broad meaning so as to cover not only courts in the true sense of the word, exercising judicial functions, but also the notaries or registry offices in some Member States who or which, in certain matters of succession, exercise judicial functions like courts, and the notaries and legal professionals who, in some Member States, exercise judicial functions in a given succession by delegation of power by a court. All courts as defined in this Regulation should be bound by the rules of jurisdiction set out in this Regulation. Conversely, the term ‘court’ should not cover non-judicial authorities of a Member State empowered under national law to deal with matters of succession, such as the notaries in most Member States where, as is usually the case, they are not exercising judicial functions. (21) This Regulation should allow all notaries who have competence in matters of succession in the Member States to exercise such competence. Whether or not the notaries in a given Member State are bound by the rules of jurisdiction set out in this Regulation should depend on whether or not they are covered by the term ‘court’ for the purposes of this Regulation. 5

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(22) Acts issued by notaries in matters of succession in the Member States should circulate under this Regulation. When notaries exercise judicial functions they are bound by the rules of jurisdiction, and the decisions they give should circulate in accordance with the provisions on recognition, enforceability and enforcement of decisions. When notaries do not exercise judicial functions they are not bound by the rules of jurisdiction, and the authentic instruments they issue should circulate in accordance with the provisions on authentic instruments. (23) In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation. (24) In certain cases, determining the deceased’s habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances. (25) With regard to the determination of the law applicable to the succession the authority dealing with the succession may in exceptional cases – where, for instance, the deceased had moved to the State of his habitual 6

Recitals

residence fairly recently before his death and all the circumstances of the case indicate that he was manifestly more closely connected with another State – arrive at the conclusion that the law applicable to the succession should not be the law of the State of the habitual residence of the deceased but rather the law of the State with which the deceased was manifestly more closely connected. That manifestly closest connection should, however, not be resorted to as a subsidiary connecting factor whenever the determination of the habitual residence of the deceased at the time of death proves complex. (26) Nothing in this Regulation should prevent a court from applying mechanisms designed to tackle the evasion of the law, such as fraude à la loi in the context of private international law. (27) The rules of this Regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be applying its own law. This Regulation therefore provides for a series of mechanisms which would come into play where the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national. (28) One such mechanism should be to allow the parties concerned to conclude a choice-of-court agreement in favour of the courts of the Member State of the chosen law. It would have to be determined on a case-by-case basis, depending in particular on the issue covered by the choice-of-court agreement, whether the agreement would have to be concluded between all parties concerned by the succession or whether some of them could agree to bring a specific issue before the chosen court in a situation where the decision by that court on that issue would not affect the rights of the other parties to the succession. (29) If succession proceedings are opened by a court of its own motion, as is the case in certain Member States, that court should close the proceedings if the parties agree to settle the succession amicably out of court in the Member State of the chosen law. Where succession proceedings are not opened by a court of its own motion, this Regulation should not prevent the parties from settling the succession amicably out of court, for instance before a notary, in a Member State of their choice where this is possible under the law of that Member State. This should be the case even if the law applicable to the succession is not the law of that Member State. (30) In order to ensure that the courts of all Member States may, on the same grounds, exercise jurisdiction in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation

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should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised. (31) In order to remedy, in particular, situations of denial of justice, this Regulation should provide a forum necessitatis allowing a court of a Member State, on an exceptional basis, to rule on a succession which is closely connected with a third State. Such an exceptional basis may be deemed to exist when proceedings prove impossible in the third State in question, for example because of civil war, or when a beneficiary cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on forum necessitatis should, however, be exercised only if the case has a sufficient connection with the Member State of the court seised. (32) In order to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, this Regulation should allow any person entitled under the law applicable to the succession to make declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or concerning the limitation of his liability for the debts under the succession, to make such declarations in the form provided for by the law of the Member State of his habitual residence before the courts of that Member State. This should not preclude such declarations being made before other authorities in that Member State which are competent to receive declarations under national law. Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession. (33) It should not be possible for a person who wishes to limit his liability for the debts under the succession to do so by a mere declaration to that effect before the courts or other competent authorities of the Member State of his habitual residence where the law applicable to the succession requires him to initiate specific legal proceedings, for instance inventory proceedings, before the competent court. A declaration made in such circumstances by a person in the Member State of his habitual residence in the form provided for by the law of that Member State should therefore not be formally valid for the purposes of this Regulation. Nor should the documents instituting the legal proceedings be regarded as declarations for the purposes of this Regulation. (34) In the interests of the harmonious functioning of justice, the giving of irreconcilable decisions in different Member States should be avoided. To 8

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that end, this Regulation should provide for general procedural rules similar to those of other Union instruments in the area of judicial cooperation in civil matters. (35) One such procedural rule is a lis pendens rule which will come into play if the same succession case is brought before different courts in different Member States. That rule will then determine which court should proceed to deal with the succession case. (36) Given that succession matters in some Member States may be dealt with by non-judicial authorities, such as notaries, who are not bound by the rules of jurisdiction under this Regulation, it cannot be excluded that an amicable out-of-court settlement and court proceedings relating to the same succession, or two amicable out-of-court settlements relating to the same succession, may be initiated in parallel in different Member States. In such a situation, it should be for the parties involved, once they become aware of the parallel proceedings, to agree among themselves how to proceed. If they cannot agree, the succession would have to be dealt with and decided upon by the courts having jurisdiction under this Regulation. (37) In order to allow citizens to avail themselves, with all legal certainty, of the benefits offered by the internal market, this Regulation should enable them to know in advance which law will apply to their succession. Harmonised conflict-of-laws rules should be introduced in order to avoid contradictory results. The main rule should ensure that the succession is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole, that is to say, all of the property forming part of the estate, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State. (38) This Regulation should enable citizens to organise their succession in advance by choosing the law applicable to their succession. That choice should be limited to the law of a State of their nationality in order to ensure a connection between the deceased and the law chosen and to avoid a law being chosen with the intention of frustrating the legitimate expectations of persons entitled to a reserved share. (39) A choice of law should be made expressly in a declaration in the form of a Disposition of Property upon Death or be demonstrated by the terms of such a disposition. A choice of law could be regarded as demonstrated by a Disposition of Property upon Death where, for instance, the deceased 9

EU Regulation on Succession and Wills

had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law. (40) A choice of law under this Regulation should be valid even if the chosen law does not provide for a choice of law in matters of succession. It should however be for the chosen law to determine the substantive validity of the act of making the choice, that is to say, whether the person making the choice may be considered to have understood and consented to what he was doing. The same should apply to the act of modifying or revoking a choice of law. (41) For the purposes of the application of this Regulation, the determination of the nationality or the multiple nationalities of a person should be resolved as a preliminary question. The issue of considering a person as a national of a State falls outside the scope of this Regulation and is subject to national law, including, where applicable, international Conventions, in full observance of the general principles of the European Union. (42) The law determined as the law applicable to the succession should govern the succession from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries as determined by that law. It should include questions relating to the administration of the estate and to liability for the debts under the succession. The payment of the debts under the succession may, depending, in particular, on the law applicable to the succession, include the taking into account of a specific ranking of the creditors. (43) The rules of jurisdiction laid down by this Regulation may, in certain cases, lead to a situation where the court having jurisdiction to rule on the succession will not be applying its own law. When that situation occurs in a Member State whose law provides for the mandatory appointment of an administrator of the estate, this Regulation should allow the courts of that Member State, when seised, to appoint one or more such administrators under their own law. This should be without prejudice to any choice made by the parties to settle the succession amicably out of court in another Member State where this is possible under the law of that Member State. In order to ensure a smooth coordination between the law applicable to the succession and the law of the Member State of the appointing court, the court should appoint the person(s) who would be entitled to administer the estate under the law applicable to the succession, such as for instance the executor of the will of the deceased or the heirs themselves or, if the law applicable to the succession so requires, a third-party administrator. The courts may, however, in specific cases where their law so re10

Recitals

quires, appoint a third party as administrator even if this is not provided for in the law applicable to the succession. If the deceased had appointed an executor of the will, that person may not be deprived of his powers unless the law applicable to the succession allows for the termination of his mandate. (44) The powers exercised by the administrators appointed in the Member State of the court seised should be the powers of administration which they may exercise under the law applicable to the succession. Thus, if, for instance, the heir is appointed as administrator he should have the powers to administer the estate which an heir would have under that law. Where the powers of administration which may be exercised under the law applicable to the succession are not sufficient to preserve the assets of the estate or to protect the rights of the creditors or of other persons having guaranteed the debts of the deceased, the administrator(s) appointed in the Member State of the court seised may, on a residual basis, exercise powers of administration to that end provided for by the law of that Member State. Such residual powers could include, for instance, establishing a list of the assets of the estate and the debts under the succession, informing creditors of the opening of the succession and inviting them to make their claims known, and taking any provisional, including protective, measures intended to preserve the assets of the estate. The acts performed by an administrator in exercise of the residual powers should respect the law applicable to the succession as regards the transfer of ownership of succession property, including any transaction entered into by the beneficiaries prior to the appointment of the administrator, liability for the debts under the succession and the rights of the beneficiaries, including, where applicable, the right to accept or to waive the succession. Such acts could, for instance, only entail the alienation of assets or the payment of debts where this would be allowed under the law applicable to the succession. Where under the law applicable to the succession the appointment of a third-party administrator changes the liability of the heirs, such a change of liability should be respected. (45) This Regulation should not preclude creditors, for instance through a representative, from taking such further steps as may be available under national law, where applicable, in accordance with the relevant Union instruments, in order to safeguard their rights. (46) This Regulation should allow for potential creditors in other Member States where assets are located to be informed of the opening of the succession. In the context of the application of this Regulation, consideration 11

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should therefore be given to the possibility of establishing a mechanism, if appropriate by way of the e-Justice portal, to enable potential creditors in other Member States to access the relevant information so that they can make their claims known. (47) The law applicable to the succession should determine who the beneficiaries are in any given succession. Under most laws, the term ‘beneficiaries’ would cover heirs and legatees and persons entitled to a reserved share although, for instance, the legal position of legatees is not the same under all laws. Under some laws, the legatee may receive a direct share in the estate whereas under other laws the legatee may acquire only a claim against the heirs. (48) In order to ensure legal certainty for persons wishing to plan their succession in advance, this Regulation should lay down a specific conflict-of-laws rule concerning the admissibility and substantive validity of dispositions of property upon death. To ensure the uniform application of that rule, this Regulation should list which elements should be considered as elements pertaining to substantive validity. The examination of the substantive validity of a Disposition of Property upon Death may lead to the conclusion that that disposition is without legal existence. (49) An Agreement as to Succession is a type of Disposition of Property upon Death the admissibility and acceptance of which vary among the Member States. In order to make it easier for succession rights acquired as a result of an Agreement as to Succession to be accepted in the Member States, this Regulation should determine which law is to govern the admissibility of such agreements, their substantive validity and their binding effects between the parties, including the conditions for their dissolution. (50) The law which, under this Regulation, will govern the admissibility and substantive validity of a Disposition of Property upon Death and, as regards agreements as to succession, the binding effects of such an agreement as between the parties, should be without prejudice to the rights of any person who, under the law applicable to the succession, has a right to a reserved share or another right of which he cannot be deprived by the person whose estate is involved. (51) Where reference is made in this Regulation to the law which would have been applicable to the succession of the person making a Disposition of Property upon Death if he had died on the day on which the disposition was, as the case may be, made, modified or revoked, such reference should be understood as a reference to either the law of the State of the habitual residence of the person concerned on that day or, if he had made 12

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a choice of law under this Regulation, the law of the State of his nationality on that day. (52) This Regulation should regulate the validity as to form of all dispositions of property upon death made in writing by way of rules which are consistent with those of the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. When determining whether a given Disposition of Property upon Death is formally valid under this Regulation, the competent authority should disregard the fraudulent creation of an international element to circumvent the rules on formal validity. (53) For the purposes of this Regulation, any provision of law limiting the permitted forms of dispositions of property upon death by reference to certain personal qualifications of the person making the disposition, such as, for instance, his age, should be deemed to pertain to matters of form. This should not be interpreted as meaning that the law applicable to the formal validity of a Disposition of Property upon Death under this Regulation should determine whether or not a minor has the capacity to make a Disposition of Property upon Death. That law should only determine whether a personal qualification such as, for instance, minority should bar a person from making a Disposition of Property upon Death in a certain form. (54) For economic, family or social considerations, certain immovable property, certain enterprises and other special categories of assets are subject to special rules in the Member State in which they are located imposing restrictions concerning or affecting the succession in respect of those assets. This Regulation should ensure the application of such special rules. However, this exception to the application of the law applicable to the succession requires a strict interpretation in order to remain compatible with the general objective of this Regulation. Therefore, neither conflict-of-laws rules subjecting immovable property to a law different from that applicable to movable property nor provisions providing for a reserved share of the estate greater than that provided for in the law applicable to the succession under this Regulation may be regarded as constituting special rules imposing restrictions concerning or affecting the succession in respect of certain assets. (55) To ensure uniform handling of a situation in which it is uncertain in what order two or more persons whose succession would be governed by different laws died, this Regulation should lay down a rule providing that none of the deceased persons is to have any rights in the succession of the other or others. 13

EU Regulation on Succession and Wills

(56) In some situations an estate may be left without a claimant. Different laws provide differently for such situations. Under some laws, the State will be able to claim the vacant estate as an heir irrespective of where the assets are located. Under some other laws, the State will be able to appropriate only the assets located on its territory. This Regulation should therefore lay down a rule providing that the application of the law applicable to the succession should not preclude a Member State from appropriating under its own law the assets located on its territory. However, to ensure that this rule is not detrimental to the creditors of the estate, a proviso should be added enabling the creditors to seek satisfaction of their claims out of all the assets of the estate, irrespective of their location. (57) The conflict-of-laws rules laid down in this Regulation may lead to the application of the law of a third State. In such cases regard should be had to the private international law rules of that State. If those rules provide for renvoi either to the law of a Member State or to the law of a third State which would apply its own law to the succession, such renvoi should be accepted in order to ensure international consistency. Renvoi should, however, be excluded in situations where the deceased had made a choice of law in favour of the law of a third State. (58) Considerations of public interest should allow courts and other competent authorities dealing with matters of succession in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to apply the public-policy exception in order to set aside the law of another State or to refuse to recognize or, as the case may be, accept or enforce a decision, an authentic instrument or a court settlement from another Member State when doing so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination. (59) In the light of its general objective, which is the mutual recognition of decisions given in the Member States in matters of succession, irrespective of whether such decisions were given in contentious or non-contentious proceedings, this Regulation should lay down rules relating to the recognition, enforceability and enforcement of decisions similar to those of other Union instruments in the area of judicial cooperation in civil matters. (60) In order to take into account the different systems for dealing with matters of succession in the Member States, this Regulation should guarantee the 14

Recitals

acceptance and enforceability in all Member States of authentic instruments in matters of succession. (61) Authentic instruments should have the same evidentiary effects in another Member State as they have in the Member State of origin, or the most comparable effects. When determining the evidentiary effects of a given authentic instrument in another Member State or the most comparable effects, reference should be made to the nature and the scope of the evidentiary effects of the authentic instrument in the Member State of origin. The evidentiary effects which a given authentic instrument should have in another Member State will therefore depend on the law of the Member State of origin. (62) The ‘authenticity’ of an authentic instrument should be an autonomous concept covering elements such as the genuineness of the instrument, the formal prerequisites of the instrument, the powers of the authority drawing up the instrument and the procedure under which the instrument is drawn up. It should also cover the factual elements recorded in the authentic instrument by the authority concerned, such as the fact that the parties indicated appeared before that authority on the date indicated and that they made the declarations indicated. A party wishing to challenge the authenticity of an authentic instrument should do so before the competent court in the Member State of origin of the authentic instrument under the law of that Member State. (63) The term ‘the legal acts or legal relationships recorded in an authentic instrument’ should be interpreted as referring to the contents as to substance recorded in the authentic instrument. The legal acts recorded in an authentic instrument could be, for instance, the agreement between the parties on the sharing-out or the distribution of the estate, or a will or an Agreement as to Succession, or another declaration of intent. The legal relationships could be, for instance, the determination of the heirs and other beneficiaries as established under the law applicable to the succession, their respective shares and the existence of a reserved share, or any other element established under the law applicable to the succession. A party wishing to challenge the legal acts or legal relationships recorded in an authentic instrument should do so before the courts having jurisdiction under this Regulation, which should decide on the challenge in accordance with the law applicable to the succession. (64) If a question relating to the legal acts or legal relationships recorded in an authentic instrument is raised as an incidental question in proceedings

15

EU Regulation on Succession and Wills

before a court of a Member State, that court should have jurisdiction over that question. (65) An authentic instrument which is being challenged should not produce any evidentiary effects in a Member State other than the Member State of origin as long as the challenge is pending. If the challenge concerns only a specific matter relating to the legal acts or legal relationships recorded in the authentic instrument, the authentic instrument in question should not produce any evidentiary effects in a Member State other than the Member State of origin with regard to the matter being challenged as long as the challenge is pending. An authentic instrument which has been declared invalid as a result of a challenge should cease to produce any evidentiary effects. (66) Should an authority, in the application of this Regulation, be presented with two incompatible authentic instruments, it should assess the question as to which authentic instrument, if any, should be given priority, taking into account the circumstances of the particular case. Where it is not clear from those circumstances which authentic instrument, if any, should be given priority, the question should be determined by the courts having jurisdiction under this Regulation, or, where the question is raised as an incidental question in the course of proceedings, by the court seised of those proceedings. In the event of incompatibility between an authentic instrument and a decision, regard should be had to the grounds of nonrecognition of decisions under this Regulation. (67) In order for a succession with cross-border implications within the Union to be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the will or administrators of the estate should be able to demonstrate easily their status and/or rights and powers in another Member State, for instance in a Member State in which succession property is located. To enable them to do so, this Regulation should provide for the creation of a uniform Certificate, the European Certificate of Succession (hereinafter referred to as ‘the Certificate’), to be issued for use in another Member State. In order to respect the principle of subsidiarity, the Certificate should not take the place of internal documents which may exist for similar purposes in the Member States. (68) The authority which issues the Certificate should have regard to the formalities required for the registration of immovable property in the Member State in which the register is kept. For that purpose, this Regulation should provide for an exchange of information on such formalities between the Member States. 16

Recitals

(69) The use of the Certificate should not be mandatory. This means that persons entitled to apply for a Certificate should be under no obligation to do so but should be free to use the other instruments available under this Regulation (decisions, authentic instruments and court settlements). However, no authority or person presented with a Certificate issued in another Member State should be entitled to request that a decision, authentic instrument or court settlement be presented instead of the Certificate. (70) The Certificate should be issued in the Member State whose courts have jurisdiction under this Regulation. It should be for each Member State to determine in its internal legislation which authorities are to have competence to issue the Certificate, whether they be courts as defined for the purposes of this Regulation or other authorities with competence in matters of succession, such as, for instance, notaries. It should also be for each Member State to determine in its internal legislation whether the issuing authority may involve other competent bodies in the issuing process, for instance bodies competent to receive statutory declarations in lieu of an oath. The Member States should communicate to the Commission the relevant information concerning their issuing authorities in order for that information to be made publicly available. (71) The Certificate should produce the same effects in all Member States. It should not be an enforceable title in its own right but should have an evidentiary effect and should be presumed to demonstrate accurately elements which have been established under the law applicable to the succession or under any other law applicable to specific elements, such as the substantive validity of dispositions of property upon death. The evidentiary effect of the Certificate should not extend to elements which are not governed by this Regulation, such as questions of affiliation or the question whether or not a particular asset belonged to the deceased. Any person who makes payments or passes on succession property to a person indicated in the Certificate as being entitled to accept such payment or property as an heir or legatee should be afforded appropriate protection if he acted in good faith relying on the accuracy of the information certified in the Certificate. The same protection should be afforded to any person who, relying on the accuracy of the information certified in the Certificate, buys or receives succession property from a person indicated in the Certificate as being entitled to dispose of such property. The protection should be ensured if certified copies which are still valid are presented. Whether or not such an acquisition of property by a third person is effective should not be determined by this Regulation. 17

EU Regulation on Succession and Wills

(72) The competent authority should issue the Certificate upon request. The original of the Certificate should remain with the issuing authority, which should issue one or more certified copies of the Certificate to the applicant and to any other person demonstrating a legitimate interest. This should not preclude a Member State, in accordance with its national rules on public access to documents, from allowing copies of the Certificate to be disclosed to members of the public. This Regulation should provide for redress against decisions of the issuing authority, including decisions to refuse the issue of a Certificate. Where the Certificate is rectified, modified or withdrawn, the issuing authority should inform the persons to whom certified copies have been issued so as to avoid wrongful use of such copies. (73) Respect for international commitments entered into by the Member States means that this Regulation should not affect the application of international conventions to which one or more Member States are party at the time when this Regulation is adopted. In particular, the Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions should be able to continue to apply the provisions of that Convention instead of the provisions of this Regulation with regard to the formal validity of wills and joint wills. Consistency with the general objectives of this Regulation requires, however, that this Regulation take precedence, as between Member States, over conventions concluded exclusively between two or more Member States in so far as such conventions concern matters governed by this Regulation. (74) This Regulation should not preclude Member States which are parties to the Convention of 19 November 1934 between Denmark, Finland, Iceland, Norway and Sweden comprising private international law provisions on succession, wills and estate administration from continuing to apply certain provisions of that Convention, as revised by the intergovernmental agreement between the States parties thereto. (75) In order to facilitate the application of this Regulation, provision should be made for an obligation requiring the Member States to communicate certain information regarding their legislation and procedures relating to succession within the framework of the European Judicial Network in civil and commercial matters established by Council Decision 2001/470/EC.6 In order to allow for the timely publication in the Official Journal of the Euro6

18

OJ L 174, 27.6.2001, p. 25.

Recitals

pean Union of all information of relevance for the practical application of this Regulation, the Member States should also communicate such information to the Commission before this Regulation starts to apply. (76) Equally, to facilitate the application of this Regulation and to allow for the use of modern communication technologies, standard forms should be prescribed for the attestations to be provided in connection with the application for a declaration of enforceability of a decision, authentic instrument or court settlement and for the application for a European Certificate of Succession, as well as for the Certificate itself. (77) In calculating the periods and time limits provided for in this Regulation, Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits7 should apply. (78) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission with regard to the establishment and subsequent amendment of the attestations and forms pertaining to the declaration of enforceability of decisions, court settlements and authentic instruments and to the European Certificate of Succession. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.8 (79) The advisory procedure should be used for the adoption of implementing acts establishing and subsequently amending the attestations and forms provided for in this Regulation in accordance with the procedure laid down in Article 4 of Regulation (EU) No 182/2011. (80) Since the objectives of this Regulation, namely the free movement of persons, the organisation in advance by citizens of their succession in a Union context and the protection of the rights of heirs and legatees and of persons close to the deceased, as well as of the creditors of the succession, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Arti7 8

OJ L 124, 8.6.1971, p. 1. OJ L 55, 28.2.2011, p. 13.

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EU Regulation on Succession and Wills

cle, this Regulation does not go beyond what is necessary in order to achieve those objectives. (81) This Regulation respects the fundamental rights and observes the principles recognized in the Charter of Fundamental Rights of the European Union. This Regulation must be applied by the courts and other competent authorities of the Member States in observance of those rights and principles. (82) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States are not taking part in the adoption of this Regulation and are not bound by it or subject to its application. This is, however, without prejudice to the possibility for the United Kingdom and Ireland of notifying their intention of accepting this Regulation after its adoption in accordance with Article 4 of the said Protocol. (83) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application, HAVE ADOPTED THIS REGULATION:

Introduction I. General II. Jurisdiction III. Applicable law 1. General points 2. Unity of the law on succession 3. The connection with the law of the final habitual residence of the deceased 4. The limited choice of applicable law

20

1 9 13 21 23

a) The choice of applicable law b) Dispositions of Property upon Death and Agreements as to Succession 5. The inclusion of the administration and of the distribution of the estate within the classification of succession law

30 32

36

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Paul Lagarde

Introduction paras. 1, 2 IV. Recognition and enforcement of decisions and acceptance of authentic acts

V.

Creation of the European Certificate of succession

44

39

I. General Regulation 650/2012 of 4 July 2012 on jurisdiction, applicable law, rec- 1 ognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession1 marks a new stage in the development of a European private international law, as much as its field, hitherto regarded as being the sole responsibility of the Member States, as in its structure, bringing together for the first time in the same text provisions governing jurisdiction, applicable law and the recognition and enforcement of decisions.2 The wish for the authorities of the Union to approach these questions is 2 relatively long standing. The Vienna plan of action on how best to implement the provisions of the Treaty of Amsterdam on the establishment of an area of freedom, security and justice, adopted by the Justice and Home Affairs Council on 3 December 1998,3 had already decided to examine the possibility of developing a judicial instrument on private international law on succession, taking into account in these respects the work already done in the context of the Hague Conference on private international law. The political decision to unify private international law on successions within the EU can be traced back to the European Council meeting in Tampere on 15 and 16 October 1999, which made the principle of mutual recognition “the cornerstone of judicial cooperation in matters both civil and penal within the Union” and sought to extend its scope on civil matters. The working programme prepared following this Council meeting envisaged the progressive in-

1 2

3

OJEN 201, 27 July 2012, p. 107. In the manner of the Hague Convention of 19 October 1996 on the protection of children. Regulation no. 4/2009 of 18 December 2008 on maintenance obligations is inspired by the same method, but, for conflict of laws, simply refers to the Hague protocol of 23 November 2007. Plan [31999Y0123(01)], OJEU C 19, 23 January 1999, pp. 1-15.

Paul Lagarde

21

Introduction paras. 3, 4

troduction of an area of freedom, security and justice that would in particular express itself, in accordance with Article 65 EC (later Art. 81 TFEU), in the development of instruments intended to facilitate the compatibility of rules on applicable law and on jurisdiction applicable in the Member States, especially in relation to successions.4 3 In order to implement this programme,5 on the basis of a study by the

German Notary Institute6 ordered by the Commission, the latter set up a working party, at the close of whose meetings it presented, on 14 October 2009, a proposal for a Regulation [COM(2009)154 final 2009/ 0157 (COD)] on jurisdiction, applicable law, recognition and the enforcement of decisions and authentic instruments in matters of succession and on the creation of a European Certificate of Succession. 4 This proposal followed the ordinary legislative procedure of co-decision

of the Parliament and the Council under Article 81 § 2 TFEU7 and not 4

5

6

7

22

Draft programme [32001Y0115(01)] of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters (JO C 12 of 15 January 2001, p. 1-9): “The financial effects of decisions taken at the time of relaxation or dissolution of the matrimonial bond, during the lifetime of the spouses or on the death of one of them, present according to all the evidence a major interest in the implementation of the European judicial space. Within this context it is possible that a distinction must be established for the development of the instruments between matrimonial property regimes and successions.” This is in effect what has been produced (see proposals of the Commission dated 16 March 2011, COM (2011) 126/2 and 127/2 on matrimonial property regimes and on the property consequences of registered partnerships being discussed by the Council). Renewed by the Hague and Stockholm programmes, adopted by the Council on 4-5 November 2004 (OJEU C 53, 3.3.2005, p. 1) and 10-11 December 2009 (OJEU C 115 of 4.5.2010, p. 1) respectively. In collaboration with Professors Dörner (Münster) and Lagarde (Paris 1) as scientific coordinators. It was published by the German Notary Institute in the volume “Les successions internationales dans l’Union européenne, perspectives pour une harmonisation [Conflict of Law of Succession in the European Union, Perspectives for a Harmonisation]”, with the proceedings of a seminar held on the subject in Brussels on 10 and 11 May 2004, pp. 1-328. See Art. 294 TFEU (formerly Art. 251 EC).

Paul Lagarde

Introduction paras. 5, 6

the special procedure under § 4 for measures concerning family law, which would have necessitated the unanimity of the Council members, after a simple consultation of the European Parliament. When stating the grounds for the proposal the Commission (point 3-1) had justified its recourse to the ordinary procedure with the autonomy of the law on successions, law governing the transfer of the assets of a person after death, with respect to family law, centred on the legal situations connected with marriage and the life of the couple, with line of descent and with the civil status of the persons. The legislative process nevertheless took nearly four years before resulting in the Regulation of 4 July 2012. The relevance, even the necessity, of a Regulation on succession is the 5 obvious consequence of the disparity between the laws of the Member States on this subject. The inconvenience of this has increased with the growing significance of population movements, not only within the Union by European citizens exercising their right of free movement or by nationals of third States living in Member States, but also towards third States by European citizens. This disparity is particularly awkward where inherited assets, even modest ones, are located in the territory of several States. One example will serve to illustrate this point. A German married couple have their habitual residence in France. One of them dies, leaving as heirs, a sister in addition to his spouse. Sizeable securities are deposited with a French bank. To whom do these belong? According to German private international law, German law, the national law of the deceased, applies to the estate. It makes provision for a division of half each between the surviving spouse and the sister of the deceased (§ 1931 BGB), the spouse also receiving a quarter of the inheritance in the form of Zugewinnausgleich (§ 1371 BGB – equalisation under the German matrimonial property regime). Under French private international law, French law applies, inasmuch as it is the law of the last residence of the deceased, and this law gives the total estate to the surviving spouse (Art. 757-2 c. civ.). If, in an attempt to avoid these difficulties, the spouses had signed an Agreement as to Succession with the husband’s sister, this agreement, valid under German law, would not have been valid under French law. Comparable problems arise with regard to the matrimonial property 6 Paul Lagarde

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Introduction paras. 7, 8

regime. The same example of German spouses having their primary residence in France illustrates this perfectly. The matrimonial property regime of the spouses is that of French law under the French applicable law rule, but that of German law under the German rule. Since the settlement of the matrimonial property is a preliminary to settlement of the succession, the full estate in each case will therefore be different, depending on whether the regime is that of the common ownership of acquired possessions as in French law or the Zugewinngemeinschaft of German law. The ideal solution would be the uniformity of the law applicable to the property regime and the estate. However the Regulation excludes matrimonial property regimes from its field of application. This is because the two matters have differing connecting factors. The matrimonial regime has to be determined at the time of celebrating the marriage and, particularly in the event of divorce, its dissolution is independent of any question of inheritance. Moreover, the freedom of choice is more extensive in the case of the property regime than in that of the succession. It is therefore necessary to await the anticipated Regulation of private international law on matrimonial property to obtain a unified system of conflict of laws in the territory of the Union. 7 The current Regulation thus confines itself to the law on succession.

Without affecting the material law on succession, specific to each Member State, it endeavours to avoid situations where one and the same succession is dealt with differently in the various Member States or is capable of being the object of a solution in one Member State that would not be recognized in another Member State. To do this, the Regulation has within the Union at the same time unified the rules of jurisdiction, the rules on the applicable law and also on the recognition and enforcement of decisions. In addition, with the creation of a European Certificate of Succession, it has made it possible to prove the status of heir or legatee and the extent of powers of administrators and capacity to settle the succession. 8 The principal idea motivating the originators of the Regulation is that of

unity: unity of succession, meaning that the inheritance in its entirety, both movable and immovable, will be governed by a single law and submitted to the same court, both at the level of judicial and of legislative competence; uniformity of jurisdiction, to avoid competition between the courts of different Member States and uniformity or coincidence of 24

Paul Lagarde

Introduction paras. 9–11

the rules on jurisdiction and the rules on applicable law, so that as often as possible the competent court will be applying its own law.

II. Jurisdiction European regulations, having united the rules of jurisdiction, principal- 9 ly the regulations Brussels I and Brussels IIbis, have all left the subject of succession outside their scope. It has been necessary to remedy this, since there currently exists within the Union a great diversity of grounds for jurisdiction, presenting an obstacle to the organization by a testator of his estate planning. Most Member States retain the forum of the place of opening of the succession process, that is to say, that of the final residence of the deceased; other States, for immovables, use the forum of the place where they are situated. Equal mention must be made of the forum of the State of nationality of the deceased, even that of the nationality of the plaintiff in legal proceedings, or again, the forum of the residence of the defendant. Depending on what is in his interests, the most diligent beneficiary will be able to play on this diversity and pick the forum most advantageous to himself. Let us take the example of an Italian living in the Netherlands who owns real estate in Belgium and whose daughter has acquired French nationality. It can be seen that at the time concerned, those States having jurisdiction according to their respective law are: the Dutch court as that of the residence for the entire estate, the Belgian court for the immovables, the Italian court from nationality of the deceased for the entire estate and the French court if chosen by the daughter for the inheritance of movable property. The Regulation has sought to rectify this anarchic situation by centra- 10 lizing the process of succession, both for movables and for immovables, in a single jurisdiction. Under Art. 4, which formulates the main rule, “the courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole”. This connection is also used in order to determine the applicable law (see below, III. 3.), which has the advantage of bringing the jurisdiction into line with the applicable law. This same idea of the coinciding of jurisdiction and applicable law ex- 11 plains the principal exception to the jurisdiction of the courts of the Paul Lagarde

25

Introduction paras. 12–14

State of habitual residence of the deceased. When the deceased has chosen to use the law of the State of which he is a national as the law applicable to his succession, as the Regulation permits him to do, the parties concerned (beneficiaries, creditors) may agree to grant exclusive jurisdiction to the courts of that State, if this is a Member State (Art. 5). 12 The other exception concerns the situation where the deceased had his

habitual residence in a third State. It may then be useful to grant a subsidiary competence to the courts of a Member State with which the inheritance is closely connected. This is what is foreseen by the Regulation in creating a hierarchy of subsidiary competences, ensuring that within the Union the succession may be referred to a single court (Art. 10 and 11).

III. Applicable law 1. General points 13 The standardization of the applicable law rules is an essential addition

to that of the rules on jurisdiction. One might argue that, as soon as a single court is competent among the Member States to deal with the succession, it is of little importance if it applies a law different from the one that the court of another Member State would apply, because the latter would not have jurisdiction to deal with the succession. When all is said and done, a single court would then have had the authority to deal with succession, the law indicated by the applicable law rules of the State from which the only competent court emanates. This is undoubtedly true; yet, for as long as the conflict rules were not standardized, the applicable law would ultimately depend on the court to which the case was referred, for example after the death of the deceased, who would not have been able to organize his succession in full knowledge of the facts. If on the other hand the applicable law rules were standardized, the applicable law would be the same everywhere in the Member States, whichever one is the Member State to whose courts the case would be referred. 14 This standardization was all the more desirable as the applicable law

26

Paul Lagarde

Introduction paras. 15, 16

rules currently in force in the Member States are very diverse. Basically they conflict in four different ways. A first distinction is between two systems, that of unity of the succes- 15 sion and that of schism or the splitting of the estate. In the unitary system, all of the assets of the estate, movable and immovable, wherever they are situated, are subject to a single law (Germany, Austria, Denmark, Spain, Baltic States, Finland, Greece, Hungary, Italy, Netherlands, Poland, Portugal, Slovakia, Slovenia, Sweden, Czech Republic). Under the system of schism, a distinction is made between the immovables, which are subject to the law of the place where they are situated (lex rei sitae), and the movable property, subject to a different law (Belgium, Bulgaria, Cyprus, France, Luxembourg, Malta, Ireland and the United Kingdom, Romania). Several different parts of the estate to be inherited are thus created, totally independent of each other, both for the determination of the heirs and their respective shares for the settlement of the succession. The schismatic system is without doubt more pragmatic, in that it takes account of the wish to apply the law of the country where the immovable property is situated which will be necessary in many places, and in that it respects the vertical connections between the succession status and the property status, avoiding for example immovable property being subject to a usufruct unknown under the law of the place of situs. But its main drawback is that it prevents the testator from planning in advance for a fair division of his estate between his children. Imagine a French father domiciled in France, who possesses two immovable properties of equal value, one in London and the other in Paris, and who wishes to give the first to his daughter living in London and the second to his son living in France. This equitable division will be compromised if the daughter claims her reserved share of the property in Paris, applying the French law on succession, while the son will not be able to do so with regard to the immovable property in London, because English law does not recognize a reserved share for children. A unitary arrangement of succession would avoid this difficulty, which only results from the schismatic division of the estate. A second distinction is between those States that effect succession (of 16 the entire estate in some of them, and only of movable property in othPaul Lagarde

27

Introduction paras. 17–19

ers) under the law of the residence of the deceased (Denmark and the schismatic States already mentioned except for Romania) and those that retain the connecting factor of the law of nationality (Germany, Austria, Spain, Greece, Italy, Portugal and Sweden). The distinction is an old one, the arguments of the two sides are known and the time has therefore come to make a choice between them. 17 Another major distinction is that between the systems that allow a

choice by the testator of the law applicable to succession (Finland, Poland and the Netherlands and to a lesser extent Germany, Belgium, Bulgaria, Italy and Romania) and those – considerably more numerous – that do not permit it. The latter fear that the power given to the testator to choose the applicable law would be used by him to evade rules that protect certain closely related heirs by giving them a reserved portion of a certain part of the estate. On the other hand, the great advantage of this professio juris is legal certainty. It allows the testator to organize his estate planning in advance as a whole and to avoid the conflicts resulting from the uncoordinated application of the laws of the States where the assets of the estate are situated, as in the example given earlier of the father of the family having one immovable property in France and another in England. 18 Finally the States of the Union are at odds on the very technical ques-

tion of the administration and settlement of the succession, depending on whether this administration is entrusted to the heir or, as in the common law countries, to a personal representative, to whom the assets making up the estate are transferred and who, when creditors and tax have been paid, hand over what remains to the heirs. This is a question of domestic material law, but it has repercussions in private international law, with common law States excluding this question from the classification of succession law and treating it as a separate legal topic. 19 Before the advent of the European Union, and in a wider context, the

Hague Conference on private international law, fully aware of the facts and figures of the extent of the problem, tried to resolve it by means of the 1989 Hague Succession Convention, but this did not come into force since there have not been a sufficient number of ratifications. However, its work has not been lost. The European Union, in possession of superior political firepower, since a Regulation is immediately 28

Paul Lagarde

Introduction paras. 20–22

applicable in all the Member States without the necessity for any ratification, has utilised some of the provisions of the 1989 Hague Succession Convention, sometimes even word for word. Having regard to these matters, the Regulation has taken a stance on the 20 four principal points at issue as indicated above. It has used the principle of the unity of succession law (2.), it has chosen the habitual residence as a connecting factor (3.), it has given a significant provision for a choice of applicable law (4.) and finally it has given succession law a wide scope of application, including the administration and distribution of the estate (5.).

2. Unity of the law on succession As already indicated, the Regulation, even more so than the 1989 Hague 21 Succession Convention, has enshrined the principle of the unity of the law applicable to succession. This law is applied horizontally to all of the assets in the estate, of whatever kind they may be, movable or immovable, and whichever the country in which they are situated. It also applies, vertically, to the whole succession process, from its opening to its final distribution (see below, 5.).’ On a horizontal level, however, the law on succession has to take ac- 22 count of the requirements of the law of the place in which the assets are situated, relating to each of them. It is in effect the law of the place in which the assets are situated that, when all is said and done, will have the last word, particularly if the asset is situated in a third State. Art. 30 uses the rule from Art. 15 of the 1989 Hague Succession Convention and restricts the application of the special provisions of the law of the place in which the assets are situated imposing restrictions on the inheritance of “certain real property assets, certain enterprises or other particular categories of assets” because of their financial, family or social destination, when these provisions are claimed to apply whatever the law governing succession. Here one recognizes the definition of mandatory rules, originally laid down by the Convention of Rome of 19 June 1980 and repeated notably by the regulations Rome I and Rome II. These mandatory rules may be those of a Member State or equally those of a third State.

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Introduction paras. 23–26

3. The connection with the law of the final habitual residence of the deceased 23 The Regulation has given preference over nationality to the habitual

residence, regarded as best expressing the aim of proximity and most often corresponding to the place where the life of the testator is centred (Art. 21). It is usually in this State that the greater part of the assets and the principal creditors are to be found. ‘Domicile’, a legal concept interpreted in very different ways in those countries with civil law and in those with common law, has for this reason deliberately been avoided. 24 The difficulty is clearly that of defining with sufficient precision the no-

tion of habitual residence with regard to succession. The Regulation gives no definition, any more than the other regulations or Hague Conventions that make use of this connecting factor. The concept, corresponding globally to the place where the life of the future deceased is centred, is sufficiently flexible to be adapted to the most diverse of situations. 25 This adaptation can also be affected by the exception clause used in the

same Article (see below, ad Art. 21). This clause, inspired by Art. 4 § 5 of the Rome Convention of 19 June 1980, uses, as an exception, the application of the law of a State other than that of habitual residence, when as a result of particular circumstances the deceased showed manifestly closer connections with this other State. 26 An exception to the applicable law of the State of habitual residence of

the deceased is made in cases of renvoi of this law to the law of another State. The proposed draft Regulation of the Commission had excluded all renvoi and had been criticized on these grounds. The Regulation adopts a more nuanced position. The exclusion of renvoi applies when the Regulation specifies the law of a Member State, by virtue of the unification of the private international law rules within the Union. The exclusion of renvoi applies when the applicable law has been chosen by the deceased (see below, under 4.), since otherwise this would block the legitimate choice of the testator. Again, renvoi is not accepted in the case of application of the exception provision under Art. 21. Outside these cases, when the applicable law designated is that of a third State, the Regulation allows renvoi in two situations (Art. 34); first when the 30

Paul Lagarde

Introduction paras. 27–30

specified law refers back to the law of a Member State, for example when the national of a Member State had his last habitual residence in a State of the Middle East which submits succession to national law or in the USA which submits immovable property in a Member State to the lex rei sitae. Renvoi is again allowed if the law specified refers back to the law of another third State which would apply its own law. This is the application of renvoi used by the 1989 Hague Succession Convention (Art. 4). The restrictions on the unity of the law applicable to the succession thus 27 remain limited, which only makes more interesting the provisions of the Regulation offering for the first time some ability for the testator to determine the relevant applicable law.

4. The limited choice of applicable law The broadening of the role of choice of applicable law is a characteristic 28 of European private international law as it develops. After contracts and before matrimonial property regimes where freedom of choice has its natural place, the latter has found its way into non-contractual obligations, divorce and, now, succession. The demand for freedom to allow the testator to organize his succession in advance is an old one, but it has often clashed with the wish to protect the reserved heirs against a possible manoeuvre on the testator’s part. The Regulation takes account of these two preoccupations and, while accepting a freedom of choice, it confines it narrowly. The freedom of choice manifests itself in the Regulation in two ways. It 29 offers the testator a choice of applicable law. In addition, numerous Articles are devoted to Dispositions of Property upon Death and to Agreements as to Succession.

a) The choice of applicable law The Regulation allows the testator to choose the law of his nationality 30 (or the law of one of his nationalities) at the time of making the choice or at the time of his death as the applicable law to govern the estate as a whole (Art. 17). Unlike the 1989 Hague Succession Convention, the Regulation does not allow the choice of the law of the habitual residence at the time of the choice or at any other time. The possibility of such a Paul Lagarde

31

Introduction paras. 31, 32

choice would have constituted the most serious threat to the protection of forced heirship reserved portions. It would have been enough for a person having had, at some moment in his life, his habitual residence in a State with different family protection rules, to have chosen this law in order to give himself future licence to dispose of his assets subject to those rules rather than subject to the claims by reserved heirs under the law of the final habitual residence of the deceased or in accordance with the law of his nationality. 31 The limitation of the possibility of choice to the national law of nation-

ality limits this concern. If a French national having his habitual residence in London and having his domicile in England & Wales within the meaning of English law dies intestate, his succession will be governed by English law, which has different family protection rules. This is the current solution, at least with regard to inheritance of movable property. What the Regulation allows, for this French person residing habitually in London, is to choose French law which protects the reserved portion under French rules. There is thus from this point of view nothing to fear in such a choice. In the case of a UK citizen most closely connected with England & Wales dying while having his habitual residence in France, his heirs will be protected by the French reserved portion rules if he has not chosen the applicable law. It may be different if he chooses English law, but, unless it is suggested to impose on any Member State a change in their internal law, which is beyond the competence of Community jurisdiction, there is no reason to prevent any citizen of a Member State from choosing the succession law of their nationality.

b) Dispositions of Property upon Death and Agreements as to Succession 32 It is possible to connect the question of the choice of applicable law to

the prominent role granted by the Regulation to Dispositions of Property upon Death and to Agreements as to Succession (Arts. 24 to 28). The Regulation obviously does not oblige the Member States to introduce into their internal legislation provisions that they do not recognize, in particular joint wills or agreements as to succession. However all Member States must recognize these under the Regulation if their validity is established in accordance with the applicable law.

32

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Introduction paras. 33–36

The favourable treatment accorded to the validity of Dispositions of 33 Property upon Death manifests itself in several ways. Firstly, the law governing their validity is the law that would have governed the succession of the testator if he had died on the day of making the disposition. Thus any interested parties will not have to wait for the death of the testator in order to know whether, taking account of the law applicable to the succession, the provisions of the disposition are valid. This rule is the same for Agreements as to Succession, except that if the agreement concerns the succession of several persons, it will be necessary for it to be valid under the laws which would have governed the succession of all persons involved if they had died on the day on which the agreement was concluded.8 Secondly, the Regulation allows the person disposing or the parties to 34 an agreement to choose the law of their nationality on the date of the provision or of the agreement to govern its validity. This freedom is extended in the case of Agreements as to Succession of several persons, since the parties may choose the law which the persons whose estate is involved could have chosen if they had died on the date of the agreement. Finally, in relation to the formal validity of these dispositions as a 35 whole, the Regulation in essential respects, uses the very favourable rules of the 1961 Hague Wills Convention giving various alternatives.

5. The inclusion of the administration and of the distribution of the estate within the classification of succession law The principle of the unity of law on succession manifests itself vertical- 36 ly, as it might be described, in that the law on succession is to govern the process of succession as a whole, from the opening of the process to the distribution of the estate. This is what is envisaged by Art. 23 when setting out the general rule that the law on succession governs “the totality” of the estate and listing in a manner that is not exhaustive, questions arising in its area of application. Unlike the 1989 Hague Succession Convention, which on this point had left the matter open to the 8

The same solution in Swiss law (Art. 95 LDIP), see a recent application, Trib. fed. 29 May 2012, ATF 138 III 489, JdT 2013 II 210.

Paul Lagarde

33

Introduction paras. 37–39

contracting States to decide, the Regulation extends the application of the law applicable to the succession to the transfer of rights, assets and liabilities to heirs and legatees, as well as to the powers of the heirs, legatees and administrators of the estate. 37 This question of the transmission of the assets in the estate is one of

those in which it is very difficult to harmonize the position in those States with civil law with those with common law, or more generally those systems adopting the principle of continuation of the person of the deceased by the heirs with those retaining the principle of inheritance of assets. In the former, although with many nuances, the heir is ipso jure invested with the powers of administration of the estate, provided that he does not renounce them. In the latter, the estate is administered by a personal representative, who, even when specified by the deceased to execute his will, will often need to obtain ratification by the court (a grant of representation). He is not normally under an obligation to concern himself with the assets of the estate that are situated in another State. It is therefore the law applicable to the succession that will determine the method of transfer of the assets and the attribution of the powers of administrators and distribution. 38 This solution will not always find it easy to be recognized in the State

where the assets are situated, if it belongs to the second system indicated. The holders of assets belonging to the deceased, such as banks, will hesitate to pass them to a person other than a personal representative whose status has been judicially authenticated. The Regulation thus recognizes the ability for the court referred to, if the law demands the appointment of such an administrator, of departing on this point from the law applicable to the succession and permitting such an appointment (Art. 29).

IV. Recognition and enforcement of decisions and acceptance of authentic acts 39 The provisions on recognition and the enforcement of decisions and

the acceptance of authentic acts with regard to succession hardly contain any surprises, since the writers of the Regulation have repeated, with minimal amendment, the rules found in other regulations, particularly the Brussels I regulation, in its initial version. 34

Paul Lagarde

Introduction paras. 40–44

As in the Brussels I regulation, recognition of the decisions takes place 40 automatically with no recourse to any procedure, except in case of a dispute concerning the grounds for non-recognition. Like the same regulation, but differing from the Brussels Ibis Regulation 41 and from some other recent texts, the Regulation maintains the requirement for an exequatur before any execution of the decision in a Member State other than that of origin. There is not in this case any urgency justifying dispensing with the exequatur. For authentic acts, there has been a wish to dispel the ambiguity cre- 42 ated, perhaps involuntarily, by the drafting of the Brussels IIbis Regulation, in accordance with which these acts shall be “recognized and rendered enforceable under the same conditions as judgments” (Art. 46). If they are recognized under the same conditions as the decisions, it means that they can only be dismissed, it seems, for one of the grounds for non-recognition foreseen by the said Regulation (Art. 22 and 23), among which nullity of negotium confirmed by the authentic instrument, does not figure. The Regulation dispels this confusion. By careful terminological clarity, 43 it removes with regard to authentic instruments the term ‘recognition’ and replaces it with that of ‘acceptance’. Fundamentally, it very precisely distinguishes the differences between evidential effect, authenticity and essential validity. The first, is that foreseen by the law of the State of origin, the second can only be contested before the court of the State of origin, while the third may be contested before the court competent to pronounce on the succession (Art. 59).

V. Creation of the European Certificate of succession To assert his rights in a succession, the heir or the legatee must be able 44 to prove his status. In the same way, in order to receive the assets of the estate, sell them or perform any act of administration of the estate, the interested party (heir, legatee, executor of the will or administrator) must prove his powers. This is true under the internal law, but it is even more so in the case of international succession, because of the differences in laws.

Paul Lagarde

35

Introduction paras. 45–47

45 Evidence of the right of inheritance and the necessary credentials are

generally achieved by production of a written document whose characteristics and conditions of issue are fixed by the law of each State. Currently, the absence of harmonization of the law of the Member States deprives national documents demonstrating status as an heir of any international recognition. The French notary delivering his affidavit most often does so in accordance with French law or according to the law that he considers applicable in accordance with French private international law, with the risks of error in such an exercise. The German judge, delivering his Erbschein, does the same, but the documents will not agree in the event of a French-German cross border succession. 46 The 1973 Hague Administration Convention had already sought to re-

solve this problem by instituting “an international Certificate designating the person or persons entitled to administer the movable estate of a deceased person and indicating his or their powers” (Art. 1), but this convention only came into effect between three States, now members of the European Union. The idea has been revived by the Regulation. To enable proof of the status of an heir to circulate freely between one Member State and another, the Regulation creates a European Certificate of Succession, issued with a view to its being utilized in another Member State and indicating in particular the status and rights of each heir or legatee as well as the persons authorized to administer the estate and their powers. 47 The choice of using the European Certificate of Succession as a form of

proof is given to the heirs or administrators, who may otherwise be content with the existing internal law Certificate of the Member State. However the advantage of calling upon the European Certificate of Succession is its automatic recognition in all the Member States and the presumption of validity attached to its contents. It proves the capacity of the heirs and legatees as well as the powers of the testamentary executors and of third-party administrators. Third parties, such as a bank, who in good faith pass the assets of the estate to the holder of the Certificate are protected and those who acquire the assets of the estate from the holder of the Certificate are regarded as having acquired good title (Art. 69). In addition, under the same Article, “the Certificate shall constitute a valid document for the recording of succession property in the relevant register of a Member State,” a provision that has to be com36

Paul Lagarde

Introduction paras. 48–50

bined with the exclusion from the field of the regulation, in other words with the submission in fact to the lex rei sitae, of the “nature of rights in rem” as well as of “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.” (Art. 1er § 2, k and l). In the Regulation, the Certificate is subject to very detailed control 48 (Art. 62 to 73) concerning its purpose, its issue, its content, its effects and its conditions for rectification, suspension or withdrawal, as well as the remedies to which it is subject. It is issued in the Member State the courts of which are competent to pronounce on the succession, either by a court of this State, or “another authority which, under national law, has competence to deal with matters of succession” (Art. 64), which in particular includes notaries. The Regulation envisages the creation of a uniform model both for the request for the Certificate and for the Certificate itself (Art. 80), which ought to allow the authorities of various States to identify it, despite the diversity of languages. The Regulation binds all the Member States, Croatia included, because 49 this Regulation forms part of what has recently been called the acquis communautaire. Outside the application of the Regulation and therefore to be considered third States9 in the sense of this Regulation there remain Denmark, which has excluded itself from the measures adopted in application as from the third part, title V, of the TFEU (area of freedom, security and justice),10 and also the United Kingdom and Ireland, which have not wished to participate in the adoption of the Regulation, but retain the possibility of ultimately utilizing their ability to opt in to it.11 The Regulation will come into effect at the same time and in the same 50 way in the Member States that are bound by it. Under Art. 83, § 1, it will be applicable to “succession of persons who die on or after 17 August 2015.” Practitioners in the Member States will thus have time to assimi9

10 11

Although one of the authors of this book has a contrary opinion on this issue. See Frimston, Art. 3, para. 44 compared to Odersky, Art. 4, para. 12, and Bergqúist, Art. 39, para. 3. See protocol no. 22 on the TFEU. See protocol no. 21 on the TFEU.

Paul Lagarde

37

Article 1

late its provisions. In addition transitional provisions are anticipated in order to validate the choices of applicable law and the Dispositions of Property upon Death made earlier. They are valid if they satisfy the conditions laid down by Chapter III or by provisions then in effect in the State of habitual residence or of nationality of the deceased on the date when they have been made.

Chapter I: Scope and Definitions Article 1: Scope 1. This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters. 2. The following shall be excluded from the scope of this Regulation: (a) the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects; (b) the legal capacity of natural persons, without prejudice to point (c) of Article 23(2) and to Article 26; (c) questions relating to the disappearance, absence or presumed death of a natural person; (d) questions regarding the matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage; (e) maintenance obligations other than those arising by reason of death; (f) the formal validity of dispositions of property upon death made orally; (g) property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2); (h) questions governed by the law of companies and other bodies, corporate or unincorporated, such as clauses in the memoranda of association and Articles of association of companies and other bodies, corporate or unincorporated which determine what will happen to the shares upon the death of the members;

38

Richard Frimston

Article 1 paras. 1–3

(i) the dissolution, extinction and merger of companies and other bodies, corporate or unincorporated; (j) the creation, administration and dissolution of trusts; (k) the nature of rights in rem; (l) any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register. I. Overview II. Succession to the Estates of Deceased Persons III. Disapplication to Revenue, Customs and Administrative Matters IV. Specified Exclusions 1. Status of persons and relationships 2. Legal capacity of persons 3. Disappearance and presumed death 4. Matrimonial property regimes 5. Maintenance obligations

1 8 12 15 19 23 25 31

6. Formal validity of oral dispositions of property upon death 7. Property passing otherwise than by succession 8. Restrictions in company Articles 9. Dissolution and merger of companies 10. Creation and administration of trusts 11. Rights in rem 12. Recording of property rights in registers

34 42 49 53 56 61 68

I. Overview Chapter I, consisting of Arts. 1 to 3, covers the issues of the scope of the 1 Regulation and some definitions. Art. 1 is key for the interpretation of the Regulation. It defines the scope 2 of the Regulation. It cannot be repeated too often, that if a matter is outside the scope of the Regulation, then none of the other parts of the Regulation can apply. Thus other parts of the Regulation may refer to matters such as tax, but since revenue matters are outside the scope of the Regulation, no part of the Regulation can affect tax directly. The CJEU has held that interpretation of EU Regulations requires in- 3 dependent, community wide, autonomous principles. Independent interpretation is required in order to ensure equal and uniform operation of a Regulation.1

Richard Frimston

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Article 1 paras. 4–9

4 The CJEU must look first at the objectives and scheme of the Regulation

and then to the general principles which stem from the corpus of the national legal systems.2 5 In the field of succession, it is probably more difficult than in any other

area to assemble any general principles from the corpus of the national legal systems. Questions of public policy vary widely and are likely to be issues with which the CJEU will have to grapple. 6 The definitions of exclusions from scope contained in Art. 1 are pre-

sumed to be exhaustive. If a matter is not specifically excluded by Art. 1, then provided it falls within the general scope of succession then it should be deemed to be included. This should be contrasted to the scope of the applicable law set out in Art. 23, described later in Chapter III, which includes the adverb “in particular”. These latter definitions are therefore not exhaustive but can include within the scope of the applicable law other issues not specifically mentioned. In contrast, the enumeration in Art. 1 is exhaustive, i.e. it should be construed restrictively. 7 The Community Acquis of the EU, is building a series of Regulations in

such a way that a category of law dealt with under one Regulation is excluded from another. Reference is made in this work to other Regulations that govern such categories excluded from the Succession Regulation.

II. Succession to the Estates of Deceased Persons 8 ‘Succession’ is defined in Art. 3(1)(a), whilst ‘estate’ is not. 9 As explained in the EUR-Lex Joint Practical Guide for drafting legisla-

tion,3 “the purpose of the recitals is to set out concise reasons for the chief provisions of the enacting terms, without reproducing or paraphrasing them. They shall not contain normative provisions or political exhortations.” 1 2 3

40

Case 29/76 in relation to the Brussels Ibis Regulation. Case 29/76 para.3. http://eur-lex.europa.eu/techleg/index.htm.

Richard Frimston

Article 1 paras. 10–16

The Regulation was produced under Article 81 of the TFEU relating to 10 judicial co-operation. The purposes of the Regulation referred to in Recitals 1 to 9 including 11 the proper functioning of the internal market and the extension of mutual recognition to areas of law such as succession and wills that are essential to everyday life.

III. Disapplication to Revenue, Customs and Administrative Matters The exclusion of revenue, customs and administrative matters has Art. 1 12 Brussels Ibis Regulation as a model, although with fewer limitations. Recital 10 notes that “it shall be for the national law to determine, for 13 instance, how taxes and other liabilities of a public law nature are calculated and paid, whether these be taxes payable by the deceased at the time of death or any type of succession related tax payable by the estate or the beneficiaries. It should also be for national law to determine whether the release of property to beneficiaries under this Regulation or the recording of succession property in a register, may be subject to the payment of taxes.”4 Whenever the Regulation is being considered it should be kept in mind 14 that, whilst it may appear self-evident, any matter outside the scope of the Regulation will not be subject to any of its provisions.

IV. Specified Exclusions 1. Status of persons and relationships Point (a) has part of Art. 1.2 (a) Brussels Ibis Regulation as a model, 15 although somewhat expanded. The term ‘family relationships’ is not defined, but the phrase ‘relation- 16 4

The exclusion of revenue, customs and administrative matters can be contrasted to the exclusions of the 1989 Hague Succession convention referred to in paragraph 38 of the Waters Report.

Richard Frimston

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Article 1 paras. 17–22

ships deemed by the law applicable to such relationships to have comparable effects’ is presumably intended to include parent and child and other descendant relationships through adoption, surrogacy and the like. Relationships on a par with marriage would presumably include officially recognized forms of union, whether between persons of the same sex or of mixed sex. These would include relationships such as the registered partnerships of Germany, Ireland, the Netherlands and the United Kingdom. It will be a matter for the law of the forum under its existing private international law rules to ascertain which is the law that is applicable to such relationships. 17 Whether a particular family relationship exists, will not be a matter

within the scope of the Regulation. Each Member State will therefore apply its individual national rules on these questions. 18 Thus, although the Regulation will govern the jurisdiction and the ap-

plicable law for a succession, there will be circumstances in which differing natural persons may qualify as heirs according to the individual relevant law of a Member State.

2. Legal capacity of persons 19 Point (b) has part of Art. 1.2 (a) Brussels Ibis Regulation as a model,

although somewhat expanded. 20 This exclusion should be contrasted with the 1989 Hague Succession

Convention which excludes the capacity to dispose of property upon death in Art. 1(2)(b). 21 The Regulation, by contrast, does not exclude questions under Art. 23.2

(c) relating to the capacity to inherit or under Art. 26 to the capacity to create a Disposition of Property upon Death. 22 Matters of mistake, fraud, undue influence or duress are generally not

characterised as matters of capacity, but as matters of consent. Some States, however may characterise such matters as being related to capacity. The applicable law under Art. 24 should however, govern all such questions, however they are characterised.5

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Richard Frimston

Article 1 paras. 23–29

3. Disappearance and presumed death Point (c) has no particular model.

23

Jurisdiction, procedures and the applicable law on questions of disap- 24 pearance or presumed death will be dealt with under the very differing relevant laws of individual Member States.

4. Matrimonial property regimes Point (d) has part of Art. 1.2 (a) Brussels Ibis Regulation as a model, 25 although defined slightly more specifically. Point (d) also follows Art. 1(2)(c) of the 1989 Hague Succession Con- 26 vention. The phrase ‘relationships deemed by the law applicable to such rela- 27 tionships to have comparable effects’ is intended to include relationships on a par with marriage such as officially recognized forms of union, whether between persons of the same sex or of mixed sex, such as the registered partnerships under the law of Germany, Ireland, the Netherlands and the United Kingdom. It will be a matter for the law of the forum under its existing private international law rules to ascertain which is to be the law that will be applicable to such relationships. The private international law issues regarding property regimes will be 28 governed by the proposed Regulations COM (2011) 126 and COM (2011) 127. Under those proposals, jurisdiction to rule on matters of matrimonial and other property regimes as defined in those proposals, will be granted in relation to the succession of a spouse or a of registered partner under Art. 3 to the courts of a Member State seised under the Succession Regulation. It should be noted that COM (2011) 126 is to apply to property rights 29 arising out of a marriage, whether between a couple of mixed sex or of the same sex. Similarly COM (2011) 127 is to apply to property rights arising out of a registered partnership, whether between a couple of 5

Note paragraph 43 of the Waters Report.

Richard Frimston

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Article 1 paras. 30–37

mixed sex or of the same sex. Final Regulations are awaited, and these may differ from the original EU Commission proposals. 30 In any event, Recital 12 of the Succession Regulation indicates that the

authorities dealing with a given succession under the Regulation, should nevertheless, depending on the situation, take into account the winding-up of the matrimonial property regime or similar property regime of the deceased when determining the estate of the deceased and the respective shares of the beneficiaries.

5. Maintenance obligations 31 Point (e) has part of Art. 1.2 (e) Brussels Ibis Regulation as a model,

although with fewer limitations. 32 These questions are now governed by the Maintenance Obligations

Regulation No 4/2009 and the Hague 2007 Protocol 39 concluded on November 23, 2007. 33 Whether a maintenance obligation arises by reason of death or by virtue

of some other reason will usually be clear. The applicable law will govern questions of such obligations arising by reason of death.

6. Formal validity of oral dispositions of property upon death 34 Point (f) has no particular model. 35 The definition of ‘dispositions of property upon death’ is considered

below, under Art. 3(1)(d). 36 In the majority of Member States, questions as to the formal validity of

testamentary dispositions have been governed by the 1961 Hague Wills Convention. Art. 10 of the 1961 Hague Wills Convention permits contracting States to reserve the right not to recognize testamentary dispositions made orally, and many contracting States have made such a reservation. 37 As described in Chapter VII, the Succession Regulation will generally

not override the 1961 Hague Wills Convention, and it clearly will also 44

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Article 1 paras. 38–43

not do so in relation to the formal validity of oral testamentary dispositions, which may in some cases also be governed by the 1961 Hague Wills Convention. The 1989 Succession Convention refers to an Agreement as to Succes- 38 sion being created in writing. It is not clear whether a Disposition of Property upon Death must be created in writing in order to be within the scope of the Regulation, or whether merely being evidenced in writing is sufficient. It is suggested that the better view is that it must be created in writing since an oral Disposition of Property upon Death is outside the scope of the Regulation, even if subsequently evidenced in writing. However, there will be cases in which the difference between a disposition made in writing and one evidenced in writing may not be easy to distinguish. Whether an issue is one of formal or material validity will be a question 39 for the forum to resolve, but will only be in question if a choice of applicable law under Art. 22 has been made, so that the applicable law is not that of the forum. The question of the formal validity of an oral Disposition of Property 40 upon Death, will be dealt with by the individual law of each relevant Member State. Similarly, the question of the formal validity of a testamentary disposi- 41 tion dealing with matters other than succession, such as the appointment of a guardian for a child, will not be within the scope of the Regulation, but may be within the scope of the 1961 Hague Wills Convention.

7. Property passing otherwise than by succession Point (g) has Art. 1(2)(d) of the 1989 Hague Succession Convention as a 42 model, although with the addition of the specific exception of obligations to restore under Art. 23(2)(i) of the Regulation. Thus, as set out in Recital 14, all such property passing by gift or by 43 survivorship is generally entirely outside the scope of the Regulation, save only with the exception of the inclusion within its scope of such Richard Frimston

45

Article 1 paras. 44–47

obligations to restore. These will be governed by the applicable law under Art. 23(2)(i). 44 Paragraph 4.1 of the Explanatory Memorandum states that this exclu-

sion ‘covers not only the forms of joint property [joint tenancy] known under common law, but also all forms of gifts under civil law.’ 45 It will obviously be important to know whether or not a particular in-

terest is excluded by virtue of this Article and since it is based on the 1989 Succession Convention, it is helpful to consider the Waters Report in some detail. 46 Paragraph 46 of the Waters Report makes it clear that “all transactions

with financial institutions of all kinds are now expressly excluded … To put the matter beyond any possible doubt, this means that, for instance, multiple banking accounts – where the payor retains an interest for his life, and X is earmarked as the one to take the balance on the payor’s death – are outside the Convention, and that financial institutions in the performance of their undertakings are not affected by the Convention.”

47 Paragraph 46 continues that “The essential difficulty which confronted

the Commission was that the pacte successoral is a civil law concept and the common law approaches this area solely in terms of testamentary and non-testamentary dispositions. See further paragraph 92. In common law jurisdictions there is a number of so-called ‘will substitutes’ or non-testamentary transfers of assets that constitute inter vivos dispositions, and they are of ever greater financial significance in all common law developed countries. They are the inter vivos trust, joint bank accounts where the survivor takes the balance, life insurance and the designation of a beneficiary to take the benefits of the policy on the death of the insured (and payor of the premiums), and pension provision accounts where the designated beneficiary takes the benefit of the accounts proceeds, by way of a joint lives and survivor annuity, in the event of the prior death of the pensioner. There is a fifth ‘will substitute’ and that is the joint tenancy (typically spousal and concerning the matrimonial home) with the right of the survivor to take the whole. None of these devices gives rise to a ‘Disposition of Property upon Death’, and should not be understood to do so. Art. 1(2)(d) is designed to be em46

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Article 1 paras. 48–55

bracive of these will substitutes, and to underline that the Convention is not concerned with them in any way. Of course, Art. 1(2)(d) having a very broad scope covering all inter vivos dispositions including gifts, such gifts may give rise to an obligation to restore or account when determining the shares of beneficiaries under the law applicable under Art. 7(2)(c). But even so the Convention does not in any way determine the validity of such gifts nor their effect or the extinction of those effects.” These comments apply with equal force to Art. 1(2)(g) of the Succession 48 Regulation and all of such ‘will substitutes’ are similarly excluded.

8. Restrictions in company Articles This Article has Art. 1(2)(f) Rome I Regulation (EU) No 593/2008 and 49 Art. 1(2)(d) Rome II Regulation (EU) No 864/2007 as a model but amended so as to relate to matters of succession. There are no references to this exclusion in the Explanatory Memoran- 50 dum or the Recitals. Whether a matter is characterised as a matter for company law or for 51 succession law, will be a question for the law of the forum. This exclusion should be borne in mind when considering the transfer 52 of interests in particular enterprises subject to special rules under Art. 30 of the Succession Regulation, which may therefore be outside the scope of the Regulation.

9. Dissolution and merger of companies This Article has no particular model but mirrors the provision relating 53 to trusts in Art. 1(2)(j). There are no references to this exclusion in the Explanatory Memoran- 54 dum or the Recitals. Whether a matter is classified as a matter for company law or for suc- 55 cession law, will be a question for the law of the forum. Richard Frimston

47

Article 1 paras. 56–63

10. Creation and administration of trusts 56 This point (j) has no particular model. 57 Recital 13 of the Regulation indicates that this exclusion should not be

considered as a general exclusion of trusts. Where a trust is created in a Will or under statute in connection with intestate succession the law applicable to the succession under the Regulation should apply with respect to the devolution of the assets and the determination of the beneficiaries. 58 Paragraph 4.1 of the Explanatory Memorandum makes the same point.

‘The exception envisaged for trusts is not an obstacle to the application to succession of the law governing it on the basis of this Regulation.’ 59 The exclusion of trusts is understandable in view of the concern that the

Regulation should not encroach on systems of ownership and, more generally on the categories of property rights. There is no Regulation dealing with questions of private international law concerning trusts, but they are covered by the 1985 Hague Trusts Convention. 60 By comparison with other Hague Conventions, such as the 2000 Con-

vention on the International Protection of Adults, it is suggested therefore that the exclusion should be understood restrictively and be limited to rules relating to the functioning of the trust.

11. Rights in rem 61 This Article has no particular model. 62 Recital 15 indicates that reason for this exclusion is that the Regulation

should not affect the limited number (‘numerus clausus’) of rights in rem known in the national law of some Member States. A Member State should not be required to recognize a right in rem relating to property located in that Member State if the right in rem in question is not known in its law. 63 The Explanatory Memorandum considers this issue in some detail.

Paragraph 4.1 sets out that this exclusion ‘stipulates that the Regulation 48

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Article 1 paras. 64–70

applies to the acquisition of a right in rem relating to inherited property, but not to the content of such a right. The Regulation does not affect the “numerus clausus” of property law in the Member States, the classification of property and rights, and the determination of the prerogatives of the holder of such rights. As a consequence, it is not, in principle, valid to establish a right in rem without knowing the law of the place in which the property is located of a property law clause, or the stripping of such clause, without the knowledge of the State. For example, usufruct cannot be introduced in a State which does not recognize it. However, this exception does not apply to the transfer of a right in rem recognized by the Member State in which the inherited property is located.’ This exclusion is not expressed to be without prejudice to the adapta- 64 tion of rights in rem, referred to in Art. 31 and also described in Recital 16. It would appear therefore that although the nature of rights in rem is 65 excluded from the scope of the Regulation, that the separate adaptation of rights in rem is not excluded. The boundary between these two issues may from time to time be un- 66 clear, until resolved by the Court of Justice of the European Union. For the avoidance of doubt, Recital 17 also states that the explicit refer- 67 ence to the adaptation of unknown rights in rem in the Regulation, should not preclude other forms of adaptation in the context of the application of the Regulation.

12. Recording of property rights in registers This Article has no particular model.

68

Paragraph 4.1 of the Explanatory Memorandum states that ‘The publi- 69 cation of property rights, in particular the functioning of the land register and the effects of an entry or failure to make an entry in this register, is also excluded.’ The number and length of the relevant recitals, indicates the political 70 difficulties that shaped the negotiation of this Article. Richard Frimston

49

Article 1 paras. 71–73

71 Recital 18 elaborates on the issue of recording in a register at some con-

siderable length. ‘The requirements for the recording in a register of a right in immovable or movable property should be excluded for the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept (for immovable property, the lex rei sitae) which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In particular, the authorities may check that the right of the deceased to the succession property mentioned in the document presented for registration is a right which is recorded as such in the register or which is otherwise demonstrated in accordance with the law of the Member State in which the register is kept. In order to avoid duplication of documents, the registration authorities should accept such documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation, in particular, the European Certificate of Succession issued under this Regulation should constitute a valid document for the recording of succession property in a register of a Member State. This should not preclude the authorities involved in the registration from asking the person applying for registration to provide such additional information, or to present such additional documents as are required under the law of the Member State in which the register is kept, for instance information or documents relating to the payment of revenue. The competent authority may indicate to the person applying for registration how the missing information or documents can be provided.’ 72 It should be borne in mind that revenue matters are in any event out-

side the scope of the Regulation by virtue of Art. 1(1) 73 Recital 19 deals with the exclusion of the effects of the recording of a

right in a register. ‘It should therefore be the law of the Member State in which the register is kept which determines whether the recording is, for instance, declaratory or constitutive in effect. Thus, where, for example, the acquisition of a right in immovable property requires a recording in a register under the law of the Member State in which the register is kept in order to ensure the erga omnes effect of registers or to 50

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Article 1 para. 73; Article 2 paras. 1–5; Article 3

protect legal transactions, the moment of such acquisition should be governed by the law of that Member State.’

Article 2: Competence in matters of succession within the Member States This Regulation shall not affect the competence of the authorities of the Member States to deal with matters of succession.

This Article has no particular model.

1

There is no reference to it in the Explanatory Report or in a recital.

2

Its meaning would appear to be declaratory and without any particular 3 effect, save to underline the fact that the Regulation deals with the private international law issues of succession and that in the absence of any such issues, the competence of Member States continues unaffected by the Regulation. Whilst the Regulation does not always expressly state as much, it will 4 only be invoked where a cross border element is involved. For example, Art. 62(3) states that the European Certificate of Succession shall not take the place of internal documents. In practice, it should usually be clear, when a cross border element ex- 5 ists.

Article 3: Definitions 1. For the purposes of this Regulation: (a) ‘succession’ means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a Disposition of Property upon Death or a transfer through intestate succession; (b) ‘Agreement as to Succession’ means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, Richard Frimston

51

Article 3

creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement; (c) ‘joint will’ means a will drawn up in one instrument by two or more persons; (d) ‘Disposition of Property upon Death’ means a will, a joint will or an Agreement as to Succession; (e) ‘Member State of origin’ means the Member State in which the decision has been given, the court settlement approved or concluded, the authentic instrument established or the European Certificate of Succession issued; (f) ‘Member State of enforcement’ means the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought; (g) ‘decision’ means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court; (h) ‘court settlement’ means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings; (i) ’authentic instrument’ means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin. 2. For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act by delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate: (a) may be made the subject of an appeal to or review by a judicial authority; and (b) have a similar force and effect as a decision of a judicial authority on the same matter. 52

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Article 3 paras. 1–5

The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79. I.

Definitions 1. Succession 2. Agreement as to Succession 3. Joint Will 4. Disposition of Property upon Death 5. Member State of origin 6. Member State of enforcement

1 4 10 14 16 21 23

7. Decision 8. Court settlement 9. Authentic instrument 10. Court II. Matters Not Defined in the Regulation 1. Member State and third State 2. Habitual Residence

25 27 29 31 35 40 58

I. Definitions Art. 3 sets out the definitions of some of the terms used in the Regula- 1 tion. As described in relation to scope, above, the CJEU has held that inter- 2 pretation of EU Regulations requires independent, community wide, autonomous principles.1 Thus even in circumstances, when the court of the forum will apply its 3 own national law principles, these must have regard to the autonomous interpretation of the terms and definitions set out in the Regulation.

1. Succession The 1989 Hague Succession Convention is silent as to the meaning of 4 ‘succession’, but it is clear from paragraph 39 of the Waters Report that in that Convention the term concerns devolution, but excludes the transmission of assets. In the Regulation, ‘succession’ has a much broader meaning and in- 5 cludes both devolution and transmission, although with some limitations.

1

For example Case 29/76 in relation to the Brussels Ibis Regulation.

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53

Article 3 paras. 6–13

6 Whilst the term ‘estate’ is not defined, the definition of succession in

Art. 3(1)(a), indicates that ‘estate’ is to be given a very broad meaning.

7 Recital 9 confirms that the Regulation is wide ranging and “includes all

civil-law aspects of succession, namely all forms of transfer of assets, rights and obligations, by reason of death, whether by way of a voluntary transfer under a disposition of property on death or a transfer on intestate succession.”2 8 Paragraph 4.1 of the Explanatory Report, states that ‘the concept of

“succession” must be interpreted in an autonomous manner and encompasses all the elements of a succession, in particular its handover, administration and liquidation’.

9 Throughout the Regulation, it should be recalled that definitions will

only apply in circumstances in which the Regulation applies. This will not be the case, in relation to matters outside its scope. Thus, this definition must exclude matters such as property rights excluded by reason of Art. 1(2)(g).

2. Agreement as to Succession 10 This point has Art. 8 of the 1989 Hague Succession Convention as a

model. 11 This topic is dealt with at some length in Paragraphs 90 to 93 of the

Waters Report. 12 Paragraph 93 of the Waters Report indicates that the French donation

entre époux would be included within this definition so far as it relates to a gift of a future estate, whereas a donation-partage as a gift of existing property would not be within the definition. 13 These paragraphs of the Waters Report are helpful both in understand-

ing the agreements that are likely to be included in the definition and

2

54

This Recital is clearly based upon the definition of succession described in paragraph 28 of the Waters Report.

Richard Frimston

Article 3 paras. 14–21

also the common law perspective in which such agreements have historically not been included.

3. Joint Will This point has Art. 4 of the 1961 Hague Wills Convention as a model. 14 It is presumed that the definition will have an autonomous meaning 15 within the EU and thus a wider definition than that currently used by some Member States, such as Germany.

4. Disposition of Property upon Death This point has the 1989 Hague Succession Convention as a model, al- 16 though the term is used in that convention, without any definition. The 1961 Hague Wills Convention, by contrast, refers to ‘testamentary 17 dispositions’. Paragraph 41 of the Waters Report indicates that whilst the term is not 18 defined in the 1989 Hague Succession Convention, it ‘excludes inter vivos dispositions having immediate proprietary effect; it is upon the death of the person so disposing, and not in any respect at any earlier time, that the disposition (or transfer) takes place.’ Art. 1(2)(g) does in an event exclude gifts from the scope of the Regu- 19 lation, but the distinction between a Disposition of Property upon Death and a disposition of property not upon death, will on occasion be a difficult question. The interpretation of a Disposition of Property upon Death, will be 20 governed together with other matters of material validity defined under Art. 26, by the relevant applicable law under Art. 24 and 25 dealt with in Chapter III.

5. Member State of origin This point has Brussels Ibis Regulation Art. 1.2 (d) as a model, extended 21 to include reference to the European Certificate of Succession. Richard Frimston

55

Article 3 paras. 22–30

22 See below for a discussion as to the definition of ‘Member State’.

6. Member State of enforcement 23 This point has Art. 1.2 (e) Brussels Ibis Regulation as a model, although

with fewer limitations. 24 See below for a discussion as to the definition of ‘Member State’.

7. Decision 25 This point has Art. 1.2(a) Brussels Ibis Regulation as a model, although

extended from the narrower meaning of ‘judgment’. There is however no paragraph including protective measures within the definition. That issue is considered in Chapter IV. 26 The definition of ‘court’ is dealt with in Art. 3.2 below and includes a

wide definition of judicial authority and legal professionals with judicial competence.

8. Court settlement 27 This point has Art. 1.2 (b) Brussels Ibis Regulation as a model, although

extended to include all courts including courts in a third State. 28 The definition of ‘court’ is dealt with in Art. 3.2 below and includes a

wide definition of judicial authority and legal professionals with judicial competence.

9. Authentic instrument 29 This point has Art. 1.2(c) Brussels Ibis Regulation Art. 1.2 (c) as a mod-

el, although extended to include authentic instruments drawn up or registered in any Member State, provided that it has been established by an empowered authority in the Member State of origin. 30 Chapter V deals in detail with the issues involving authentic instru-

ments.

56

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Article 3 paras. 31–36

10. Court Art. 3(2) extends the definition of court to include non-judicial autho- 31 rities exercising a judicial authority, subject to certain limits. Recital 20 sets out that ‘This Regulation should respect the different 32 systems dealing with matters of succession applied in the Member States. For the purposes of this Regulation, the term ‘court’ should therefore be given a broad meaning so as to cover not only courts in the true sense of the word, exercising judicial functions, but also the notaries or registry offices in some Member States who or which in certain matters of succession, exercise judicial functions like courts, and the notaries and legal professionals who, in some Member States, exercise judicial functions in a given succession by delegation of power by a court. All courts as defined in this Regulation should be bound by the rules of jurisdiction set out in this Regulation. Conversely, the term ‘court’ should not cover non-judicial authorities of a Member State empowered under national law to deal with matters of succession, such as the notaries in most Member States where, as is usually the case, they are not exercising judicial functions.’ Paragraph 4.1 of the Explanatory Report sets out that ‘More often than 33 not, successions are settled out of court. The concept of courts used in this Regulation is used in its broadest sense and includes other authorities where they exercise a function falling within the jurisdiction of the courts, in particular by means of delegation, including notaries and court clerks. It is clear therefore, that notaries and legal professionals are only inclu- 34 ded within the definition of ‘court’, in the more unusual case and to the extent that and when they are actually exercising a judicial function.

II. Matters Not Defined in the Regulation Some terms in the Regulation are not specifically defined.

35

Some of these, such as the term ‘estate’ whilst not defined will usually be 36 straightforward to interpret.

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57

Article 3 paras. 37–44

37 Others, such as ‘Member State’ and ‘Habitual Residence’ were subject to

lengthy discussions during the drafting and legislative process. No definition of ‘Habitual Residence’ has been included, but some of the recitals give guidance as to its interpretation. 38 The Definition of ‘Member State’ is however, more problematic. 39 Consideration of these two terms is now set out.

1. Member State and third State 40 The Treaty on the Functioning of the European Union indicates that a

third country is one that is not a Member State3 whilst the expression Member State includes all Member States that are parties to the EU Treaties. 41 There is no specific definition of ‘Member State’ or ‘third State’ in the

Regulation. 42 In many EU Regulations, such a definition is included, restricting the

definition of a Member State to those that are bound by the specific Regulation. In the Brussels I Regulation, for example, Art. 1.3 (now amended in Brussels Ibis Regulation) defined “the term ‘Member State’ as meaning Member States with the exception of Denmark.” Similarly in the Rome I Regulation, Art. 1.4 states that “In this Regulation, the term ‘Member State’ shall mean Member States to which this Regulation applies. However, in Art. 3(4) and Art. 7 the term shall mean all the Member States.” 43 There are divided opinions between experts as to whether each of Den-

mark, Ireland and the United Kingdom are within the definition of a Member State in the Succession Regulation. 44 One view is that all three are currently Member States for the purposes

of the EU Treaties and Recitals 82 and 83 of the Regulation also make it clear that those three States are Member States.

3

58

See for example Article 63 of the TFEU.

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Article 3 paras. 45–50

The final line of the Regulation: “This Regulation shall be binding in its 45 entirety and directly applicable on the Member States in accordance with the Treaties” can certainly be interpreted as including those three States as Member States. By virtue of Protocols 21 and 22 to the EU Treaties, the three Member 46 States will not be bound by or subject to the application of the Regulation, but other Member States do not have the benefit of equivalent protocols to those of Protocols 21 or 22 and therefore the Regulation will bind all of those Member States. If it had been wished to exclude the three States from the definition of 47 Member State, it would have been perfectly feasible to do so. The original form of the draft Regulation as proposed by the Commis- 48 sion in COM (2009) 154, included a provision at Art. 1.2, which stated that “In this Regulation ‘Member State’ means all the Member States with the exception of Denmark [the United Kingdom and Ireland].” This provision has not survived the legislative process and does not appear in the Regulation. The most similar equivalent example to the Succession Regulation is 49 perhaps that of the Insolvency Regulation4 which applies to all Member States other than Denmark. In that Regulation there is also no definition excluding Denmark from the definition of Member State. The external evaluation of the Insolvency Regulation5 refers in passing 50 to Denmark as being a third State.6 However, there appears to be no authority for any such reference. The CJEU decision in Seagon v Deko Marty7 related to issues involving Germany and Belgium and the Swedish Supreme court decision in Siv Ing Benum AS v Kinovox-Benum AB8 to issues involving Sweden and Norway and the application of the Nordic 1933 Treaty. These do not directly address the issue. 4 5 6 7 8

(EU) No 1346/2000 of 29 May 2000. JUST/2011/JCIV/PR/0049/A4. At, for example, page 85 in the comments from Germany. C-339/07 of 12 February 2009. Ö 743-11 of 31 January 2013.

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59

Article 3 paras. 51–57

51 It would seem that the Swedish Supreme court was indicating that the

position between Sweden and Denmark might be different to that between Sweden and Norway. 52 It has been argued that including all Member States within the defini-

tion would create an unfair position as between Member States. 53 It can, however, also be argued that it could be a matter of European

policy, that the succession law of Member States should be recognized and enforced throughout the EU whether or not individual Member States are bound by the Regulation. 54 For most purposes, there is no particular confusion since Denmark, Ire-

land and the United Kingdom are not bound by the Regulation or subject to its application. 55 The main point of uncertainty relates to the question of renvoi. Art. 34.1

only applies to third States. The implication therefore is that it does not apply to Member States not bound by the Regulation and that therefore is to be no renvoi from Denmark, Ireland or the United Kingdom to other Member States, but the point is not clear. Art. 34.2 would seem to apply in all circumstances, so that a choice of law under Art. 22 will certainly be a choice of the internal law with no renvoi. 56 However, another view is that these three Member States must be re-

garded as third States for the purposes of the Succession Regulation and that it would be unreasonable if the Regulation required a French court to recognize a succession decision from a British court, whilst a British court would not be obliged to recognize a succession decision from a French court. This important question will need to be resolved as soon as possible either by an amendment to the Recitals or by a decision of the CJEU.9 57 In order to avoid uncertainty, however, individuals with connections

with Denmark, Ireland or the United Kingdom and whose successions might be subject to renvoi back to Member States subject to the Regu9

60

See also Lagarde, Introduction, para. 49, Odersky, Art. 4, para. 12, and Bergquist, Art. 39, para. 3.

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Article 3 paras. 58–63

lation, should consider making a choice of applicable law under Art. 22 to avoid such uncertainty.

2. Habitual Residence There is no specific definition of ‘Habitual Residence’ in the Regulation. 58 The Brussels Ibis Regulation uses the term ‘Domicile’ and generally di- 59 rects that Member States should apply their internal law. The term ‘Habitual Residence’ is used as a connecting factor in many 60 EU Regulations, such as the Brussels IIbis Regulation, the Maintenance Obligations Regulation, the Rome I Regulation, the Rome II Regulation and the Rome III Regulation. In the context of the Brussels IIbis Regulation the courts in England and 61 Wales have held10 that: i. EU habitual residence is defined more by the centre of a person’s interests than by a particular duration of residence; ii. although a person may be resident in more than one State at any particular time there can only be one EU habitual residence at any time; The Brussels IIbis Regulation has specific definitions limiting a change 62 of habitual residence until after 6 or 12 months of residence.11 The EU Court of Justice in the case of Mercredi v Chaffe12 has subse- 63 quently considered that “the concept of ‘habitual residence’ for the purposes of Arts. 8 and 10 of [the Brussels IIbis Regulation], must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration in10 11 12

In the case of Marinos v Marinos [2007] EWHC 2047. Set out in the fifth and sixth indents of Article 3(1)(a). C-497/10 of 22 December 2010.

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Article 3 paras. 64–66

clude, first the duration, regularity conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.” 64 In the case of the Succession Regulation, it is clear that the term ‘Habi-

tual Residence’ requires an even closer nexus than that of ‘Habitual Residence’ in other EU Regulations.

65 The Explanatory Memorandum states that “The Regulation retains this

law [of the last habitual residence of the deceased], instead of the law of nationality, as it coincides with the centre of interest of the deceased and often with the place where most of their property is located. Such a connection is more favourable to integration into the Member State of habitual residence and avoids any discrimination regarding persons who are resident there without possessing the relevant nationality. Habitual residence has also been retained in the conflict–of-law rules of several Member States and in all modern legal instruments, in particular in the [1989 Hague Succession] Convention.” 66 Recital 23 to the Regulation explains “In view of the increasing mobility

of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation.” 62

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Article 3 paras. 67–69

Recital 24 continues “In certain cases, determining the deceased’s habi- 67 tual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.” It is therefore considered clear that a closer nexus is required to estab- 68 lish Habitual Residence under the Regulation than under other EU Regulations. This issue, Recital 25 and Art. 21(1) and (2) are considered further in 69 Chapter III.

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63

Article 4 paras. 1, 2

Chapter II: Jurisdiction Article 4: General jurisdiction The court of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. I.

General 1. Exclusive Regulation on general jurisdiction 2. Coordination of general jurisdiction and applicable law

3.

1 4

Jurisdiction to issue a European Certificate of Succession II. Special conditions 1. Ruling on the Succession as a whole 2. Habitual Residence 3. Legal consequences

6 7 9 12

I. General 1. Exclusive Regulation on general jurisdiction 1 Arts. 4 to 11 of the Regulation set out an exclusive regime which com-

pletely excludes the national rules of the Member States concerning the general jurisdiction of their courts (except for the special rules on provisional measures in Art. 19).1 They, therefore, differ in particular from Art. 4.1. in the Brussels I Regulation (Art. 6.1 Brussels Ibis Regulation) and Art. 7. 1. in the Brussels IIbis Regulation which allow national jurisdiction rules to be partly applied. In doing so Arts. 4 to 19 of the Regulation follow the structure of Arts. 3 to 14 of the Maintenance Obligations Regulation so that in case of uncertainty, judgments based on that latter Regulation and on its commentary can often be resorted to. 2 As can be seen in the clarification in Art. 2 and the formulation of

“courts” (plural) in Art. 4, the Regulation only governs the general jurisdiction but not the local jurisdiction, unlike Art. 3.a and 3.b in the Maintenance Obligations Regulation. Which court within the Member State, with general jurisdiction, will have local, objective or functional 1

64

Compare Recital 30. However, this does not affect the rules on general jurisdiction pursuant to international conventions that bind the individual Member States in accordance with Art. 75.

Felix Odersky

Article 4 paras. 3–5

jurisdiction depends on the law relating to jurisdiction in that Member State. This is particularly important because similar decisions on successions 3 in the Member States are not only taken by different courts (including notaries or institutions in the sense of Art. 3.2), but also in the context of differences between contentious and non-contentious proceedings. The Regulation intentionally does not provide different jurisdiction rules for contentious and non-contentious proceedings on successions which might be started by an application of only one party or even by a court of its own motion,2 in order to avoid difficulties in defining the limits between the different types of proceedings.3 This leads to a situation where, the jurisdiction rules must be applied in all types of proceedings, in contrast to other European Regulations which although they serve as a model, are only valid in contentious proceedings.

2. Coordination of general jurisdiction and applicable law Besides this exclusive jurisdiction system, the Regulation pursues the 4 objective of harmonising the general jurisdiction (forum) with the applicable law (ius).4 This is achieved, in that the main rule of Art. 4, in the same way as in Art. 21.1, is based on the term ‘habitual residence’ and the Regulation in Arts. 5 to 9 (declining of jurisdiction of the court of the habitual residence and granting a different jurisdiction to the courts of the State of nationality of the deceased) requires that the deceased must have chosen the law of nationality in accordance with Art. 22. This principle of coordination should in most cases be achieved so that the court that has jurisdiction, can apply its own law and thus ensure fast and cheap proceedings and accurate legal findings. Even though these important advantages in the sense of economy of 5 2

3

4

Own motion proceedings are explicitly governed by Arts. 8 and 14.3. These Articles however do not govern the necessary adjustments of the other rules on jurisdiction to non-contentious proceedings. See the commentary to the various Articles. The fact that the Regulation covers all types of proceedings is also expressed explicitly in Recital 59. See Recital 27.

Felix Odersky

65

Article 4 para. 6

procedure are promoted, this could have the disadvantage that the precise habitual residence and thus the question of jurisdiction could be difficult for an applicant to ascertain (with the risk that the application is sent to a court without jurisdiction) and that the court seised has to make extensive investigations as to its jurisdiction. Further there is a risk that courts in different Member States interpret the term ‘habitual residence’ differently, notwithstanding the fact that the term is to have the same meaning in the whole of Europe. If this results in a positive conflict of jurisdiction, where two courts each rule that they have jurisdiction, this conflict can be resolved in accordance with Art. 17. In other cases, especially if the court first seised considers itself not to have jurisdiction, because it deems the last habitual residence of the deceased to be in another Member State (with the risk of a so called negative conflict of jurisdiction where no court considers itself to have jurisdiction), the Regulation gives no binding right to refer a case to the courts of another Member State. According to the principles set out by the CJEU in the case Gothaer Allgemeine Versicherung AG5 concerning Arts. 32 and 33 of the Brussels I Regulation (Arts. 2.a and 36 Brussels Ibis Regulation), it is to be assumed that a valid decision, in which a court declines jurisdiction, as well as the grounds for the decision and thus also the interpretation of the term ‘habitual residence’ is to be recognized in other Member States in accordance with Art. 39 et seq.6

3. Jurisdiction to issue a European Certificate of Succession 6 In accordance with Art. 64, the provisions in Arts. 4, 7, 10 or 11 are to

be applied to the general jurisdiction of the courts to issue an ECS. Such an ECS can only be issued by the court, which has general jurisdiction for the estate as a whole in the sense of Art. 3.2. The Regulation probably also assumes that issuing a Certificate is an act sui generis and not a “decision” in the sense of Art. 3.1.g, because otherwise the rules of jurisdiction in Art. 4ff would be directly applicable. This leads to the conclusion that the courts in the Member States, due to the absence of an exclusive jurisdiction rule in the Regulation, can still have jurisdiction under their national law to issue a similar local 5 6

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C-456/11 Gothaer Allgemeine Versicherung AG and others v Samskip GmbH. See Geimer/Schütze/Wall, Int. Rechtsverkehr, EU-ErbVO Article 4 para. 109.

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Article 4 paras. 7, 8

Certificate according to their national law (such as for example a German Erbschein), even if they do not have general jurisdiction for the succession. These local Certificates are, on the other hand, not recognized under Art. 39 et seq in other Member States, because in the same way as the ECS, they do not have the character of a “decision”.7

II. Special conditions 1. Ruling on the Succession as a whole Art. 4 refers primarily to ‘courts’ in the sense of Art. 3.2, which can also 7 include other authorities and legal professionals particularly notaries who may exercise a judicial function in the succession proceedings. They must be distinguished from other acts of notaries, where the notaries are not acting as a court, but instead act with the consent of all parties concerned e.g. to investigate the identity of the heirs or negotiating a partition or distribution agreement. In this case, notaries are not bound by the rules of jurisdiction of Art. 4 et seq, which is also set out in Recital 36. Furthermore, Art. 4 applies to all ‘decisions’ in the sense of Art. 3.1.a, 8 which concern successions in the sense of Arts. 3.1.a and 23. The additional insertion, that this is the case for the succession as a whole, is only for clarification purposes and expresses the principle of the unity of the succession also in relation to jurisdiction. With positive jurisdiction for all succession cases the Regulation complements the other EU Regulations, for instance Art. 1.2.a of the Brussels I Regulation,8 which exclude succession from their respective scope. Given that, the jurisdiction in accordance with Art. 4 needs to be distinguished from cases where a question of succession is only a preliminary issue in connection with another civil dispute.9 7

8 9

See Geimer/Schütze/Wall, Int. Rechtsverkehr, EU-ErbVO Article 4 para. 34 et seq. Now Art. 1.2.f in the Brussels Ibis Regulation, (EU) 1215/2012. In the decision Vorarlberger Gebietskrankenkasse, C-347/08, para. 44, for example the CJEU assumed that the matter was a civil and commercial case pursuant to Art. 1.1.1 in the Brussels I Regulation (Art. 1.1.1 Brussels Ibis Regulation), even though the preliminary question had to be decided as to whether the claim was transferred to a particular heir.

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Article 4 paras. 9, 10

2. Habitual Residence 9 The term habitual residence corresponds to that in Art. 21.1 and should

be interpreted in the same way, because of the intended coordination of forum and ius, in order to ensure that also on the question of general jurisdiction there can only be one habitual residence of the deceased at the time of his death. As there is no definition of the term habitual residence in the Regulation, it is to be interpreted autonomously, whilst the actual definition – particularly in the light of Recitals 23 and 24 – for the purposes of the Succession Regulation is not exactly the same as in other European Regulations.10 10 The habitual residence in the sense of a “centre of interests” will in most

cases not cause any difficulties and will not be complicated to determine. For the more difficult cases, where the deceased had residences in several States at the same time, or where he or she, due to various reasons (multiple times) changed his or her habitual residence in the years prior to his or her death, the following typical cases can be considered.11 Examples are so called “work-commuters”, such as a banker, who during work-days has his residence in London, but at the weekends flies to his wife in Paris, or the Polish nurse, who although she has been living in Munich for many years, nevertheless goes to her family in Poland every second week. If the residence in one State is mostly for work, one will, with regard to the Succession Regulation – perhaps in contrast to other European Regulations – usually find the habitual residence in the State, in which the private residence is located, because in accordance with Recital 24 the social connections to family and friends should carry a stronger weight. Students will be treated in the same way, as long as connections to their parents or their former social life are still important. Also for employees, even if they are living abroad together with their close family, but who are merely temporally based there (i.e. so called “expats”) one will often not find a change of habitual residence from the overall assessment of the circumstances of the life of the de10

11

68

See to this and the previous interpretation by the CJEU the commentary to Art. 21.1. Compare Recital 24.

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Article 4 para. 11

ceased in a particular individual case. On the other hand an “animus manendi” is not necessary, as is the case with the term domicile in common law countries, so that a rather vague wish to return to the homeland will not prevent a change of the habitual residence, if in the State of residence a family or social life has already been created. For the so called “Mallorca-pensioner”, who lives in two different States for several months, only for personal reasons, the crucial factor will be whether he or she actually has comparable social relationships (e.g. family and friends) at both residences and thus is integrated socially in both States. If despite this, no priority for one of the States can be established, Recital 24 stipulates that in exceptional cases the nationality or the fact that all main assets are located in one of those States can be used as a special factor in the overall assessment of all the circumstances. It remains unclear how the habitual residence should be established for a person who can no longer form an intention of their own to take a habitual residence, e.g. because they were brought for nursing care by their family to another State or were sent to a nursing home abroad. Even if the habitual residence of a person can be changed without him or her having legal competence, one must consider in the overall assessment if the change of residence has occurred without any subjective element. For a change of residence an enhanced component in the context of the social environment (especially in the actual integration into the family environment, that looks after him or her) is required. It should be noted that Art. 4 does not contain a parallel provision to 11 Art. 21.2, under which the court of the habitual residence of the deceased can exceptionally refer to the law of another State as the law applicable to the succession. Also a refusal of jurisdiction under Art. 6 cannot be considered in this case, since such a refusal is limited to a situation in which the deceased has made a choice of law. In practice, this will however have little significance, since the scope of Art. 21.2 is unclear and the judge will generally have already considered all of the facts in determining the habitual residence.

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Article 4 para. 12; Article 5 para. 1

3. Legal consequences 12 The general jurisdiction under Art. 4 is only established if the deceased

had his habitual residence in the territory of a Member State at the time of his death. If, on the other hand, the habitual residence was located in a third State (including the United Kingdom, Denmark or Ireland), the general jurisdiction of the courts of this third State will be governed exclusively by the national law of this State. The possibility of a competing general jurisdiction of a Member State will in this case only be caused by the special rules under Arts. 10 and 11, or under a choice-of-court agreement under Arts. 5 or 7.b.

Article 5: Choice-of-court agreement 1. Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter. 2. Such a choice-of-court agreement shall be expressed in writing, dated and signed by the parties concerned. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. I. General II. Special conditions 1. Article 5.1. a) Choice of law under Article 22

1

b) Parties concerned c) Agreement 2. Article 5.2

6 10 14

2

I. General 1 Art. 5 has adopted the concept of a “choice-of-court” from Art. 23 of

the Brussels I Regulation1 and Art. 4 of the Maintenance Obligations Regulation. However, in the Succession Regulation it is limited to situations where in accordance with the Art. 22 the deceased has chosen the 1

70

See also Art. 25 in the Brussels Ibis Regulation.

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Article 5 paras. 2, 3

law of his or her nationality as the applicable law.2 Art. 5 does not contain a jurisdiction rule, but instead only sets out rules for the admissibility and conditions for the validity of a choice-of-law agreement. The effects of such an agreement follow under Art. 6.b (refusal of jurisdiction by the court that has actual jurisdiction under Art. 4 and 10) and Art. 7.b (grounds for a different jurisdiction). Particularly from the mandatory rule of Art. 6.b it appears that in a choice-of-court agreement only a different exclusive jurisdiction can be agreed and not optionally another competing jurisdiction.3

II. Special conditions 1. Article 5.1 a) Choice of law under Article 22 A mandatory condition for a choice-of-court agreement in accordance 2 with Art. 5 is that the deceased has previously made a choice of law in accordance with Art. 22. Therefore, particularly if there is an intestate succession, a choice-of-court cannot be agreed, even if all heirs live in a State other than that whose courts have jurisdiction in accordance with Art. 4, or if substantial assets of the estate are located in this other State. The ability for the heirs, who live in a State other than the deceased, to make a choice-of-court agreement under Art. 5, may therefore in the future be another reason to make a Will with a choice of law, even if its main substance (such as the appointment of heirs in certain proportions) would be achieved under the law of intestacy or under a Will made in accordance with the law of the State of habitual residence. The choice of law of the deceased must satisfy the requirements of 3 Art. 22, and already on the court’s examination as to jurisdiction, an interpretation will possibly already have been made as to whether an implied choice of law in accordance with Art. 22.2 has been included in a Will. Also an earlier, but continuing, choice of law under Art. 83.2, or a deemed choice of law under Art. 83.4 will be sufficient for a choiceof-court agreement for the purposes of Art. 5 et seq. If however a choice 2 3

See Recitals 27 and 28. In contrast to this compare the wording of Art. 4.1 last half-sentence in the EU Maintenance Regulation.

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Article 5 paras. 4–7

of law in accordance with Art. 83.2. only applies to a part of the estate, such as certain immovable property, this will not be considered to be equivalent to a choice of law under Art. 22, even if the proceedings would relate only to this part of the estate. 4 A choice of court agreement under Art. 5 is only possible if the deceased

has chosen as the applicable law, a law of a Member State. If, however, the deceased has chosen the law of a third State, the parties concerned cannot make a choice-of-court agreement and, therefore, they cannot derogate from the court that has jurisdiction under Art. 4. 5 Although the Regulation intends the applicable law of succession and

the general jurisdiction to coincide,4 due to their restrictive wording, Arts. 5 and 7 do not apply if the law of succession of a Member State, other than the one where the deceased had his or her habitual residence, is applied not because of a choice of law but because of renvoi in accordance with Art. 34.1.a.

b) Parties concerned 6 The choice-of-court agreement is to be concluded by all parties con-

cerned and this term is to be interpreted autonomously. However, a specific definition of the parties concerned is not included in the Regulation, so that its determination poses particularly serious problems in non-contentious proceedings. Recital 28 states that: “It would have to be determined on a case-by-case basis, depending in particular on the issue covered by the choice-of-court agreement, whether the agreement would have to be concluded between all parties concerned by the succession or whether some of them could agree to bring a specific issue before the chosen court in a situation where the decision by that court on that issue would not affect the rights of the other parties to the succession.” 7 The Regulation therefore aims, on the one hand, for a flexible solution

depending on the nature and extent of the intended proceedings and on the other hand, all parties are always considered to be concerned, if the proceedings can potentially have an impact on their rights. The parties concerned are normally easy to determine in contentious proceedings, 4

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See e.g. Recital 27.

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Article 5 paras. 8, 9

since the legal decision only binds those parties. By extension from other EU Regulations it is sufficient in such cases, if the agreement is made between the claimant and the defendant or the applicant and defendant. The determination of the parties concerned in non-contentious pro- 8 ceedings which are carried out by the court of its own motion or on application of only one party concerned is more difficult and uncertain. This is in particular true for proceedings directed to determine the heirs or beneficiaries, or the validity of a Will. By reference to Art. 64, the application for an ECS also belongs to this type of proceedings. All the actual heirs are in such general succession proceedings undoubtedly parties concerned . If the succession results from a Will, the potential legal heirs will probably also be viewed as parties concerned, as in the proceedings, they can claim that the Will is invalid and that they are the actual heirs. In addition, such heirs may have a right to a reserved portion. Parties concerned are probably also all other persons who are (possibly) entitled to direct rights to the estate, such as beneficiaries of a legacy or an executor. On the other hand, in order to make Art. 5 more practical, persons with a mere claim against the estate (such as creditors) are probably not viewed as sufficiently concerned, particularly because it is open to them to submit their claims to the court that has jurisdiction under Art. 4 even if a court in another country has jurisdiction for the general succession proceedings as a result of a choice-of-court agreement between the heirs or the court that has submitted an ECS. If it is later discovered that not all parties concerned have agreed to the 9 choice-of-court agreement (for example, because later, a new heir is found), the courts of the State whose law the deceased has chosen in accordance with Art. 22, can continue to have jurisdiction if all actual parties concerned explicitly approve this jurisdiction under Art. 7.c or if they enter an appearance to the proceedings without contesting jurisdiction in accordance with Art. 9. If the court, that has jurisdiction under Art. 4, has doubts as to who are the parties concerned, it will in practice be recommended to decline Felix Odersky

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Article 5 paras. 10–13

jurisdiction under Art. 6.a after a request of one of the parties, since then the question of general jurisdiction no longer depends on whether all parties have actually agreed to the choice-of court agreement.

c) Agreement 10 The term “agreement” is to be understood not merely as a passing re-

ference to the national law of the court to be seised, but must be interpreted autonomously. This requires a binding declaration by the parties, with the result that the courts of a particular State will have jurisdiction for the proceedings. The assumption that the parties actually reached agreement will normally be derived from a compliance with the written form in accordance with para. 2.5 11 Other requirements for the conclusion of the agreement, the legal con-

sequences of any defects of consent and questions concerning the interpretation of the agreement, are not set out in the Regulation and are thus probably uniformly ruled by the law of the Member State, whose succession law was chosen in accordance with Art. 22. It is also suggested that preliminary questions (such as the legal capacity to conclude a choice-of-court agreement or the admissibility of any representation) are tied to the applicable succession law, in order to avoid the courts engaged under Arts. 6.b and 7.b coming to different conclusions concerning the validity of the agreement. 12 According to the wording of Art. 5.1, it is possible to agree that “a court

or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter”. The wording is the same as in Art. 4.1 in the Maintenance Obligations Regulation, which also permits an agreement concerning a particular local court. From the wording of Arts. 6 and 7, which only mention courts (in the plural) of the Member State concerned, it is however assumed that an agreement in accordance with Art. 5 can only ever refer to the universal jurisdiction of the courts of one State, even if the parties concerned refer to a particular court. 13 The Regulation does not contain restrictions on the timing of the

choice-of-court agreement. Thus, potential heirs can make an agree5

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CJEU Estasis Salotti, C-24/76, para. 7; CJEU MSG, C-106/95, para. 15; CJEU Coreck, C-387/98, para. 13.

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Article 5 paras. 14, 15

ment between themselves even during the lifetime of the deceased, e.g. also in an Agreement as to Succession with the deceased. However, the deceased himself cannot choose that a court shall have jurisdiction and is him or herself never a “party concerned”, so that such an agreement with him or her is never binding and can thus later be revoked by the parties concerned.

2. Article 5.2 Art. 5.2 exhaustively governs the requirements as to the form of a court- 14 of-choice agreement, so that any further requirements of the lex fori as to form are excluded. The requirements as to form are intended to ensure that the agreement between the parties concerning jurisdiction is in fact established. The requirements as to form are met if each party concerned sets down in writing his or her declaration of intent, and this can also be made in separate documents, provided that from them, the content of the agreement is sufficiently evident. Under the parallel rules in Art. 23 of the Brussels I Regulation (Art. 25 Brussels Ibis Regulation) and Art. 4.2 of the Maintenance Obligations Regulation, there has been uncertainty as to whether a signature is required for compliance with the written form. Therefore Art. 5 now expressly states that the choice-of-court agreement must be dated and signed. According to the second sentence of the paragraph communication by 15 electronic means (e.g. by mutual e-mails) is deemed equivalent to writing, if it provides a durable record of the agreement, regardless of whether the parties actually save the document. Since, according to the wording in the second sentence, communication by electronic means is only deemed equivalent to writing, the requirement for signing, however, is not eliminated. It is unclear how this can be done when communicating by electronic means. It is probably sufficient that the actual document is signed, scanned and transmitted. Moreover, a qualified electronic signature will also be viewed as equivalent. Other forms of electronic source identification, however, will not be sufficient to satisfy the concept of a signature.

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Article 6 paras. 1, 2

Article 6: Declining of jurisdiction in the event of a choice of law Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the court seised pursuant to Article 4 or Article 10: (a) may, at the request of one of the parties to the proceedings, decline jurisdiction if it considers that the courts of the Member State of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets; or (b) shall decline jurisdiction if the parties to the proceedings have agreed, in accordance with Article 5, to confer jurisdiction on a court of the courts of the Member State of the chosen law.

I. General 1 Arts. 6 and 7 correspond to each other. In order to coordinate the law of

nationality chosen by the deceased and the general jurisdiction,1 the court that has general jurisdiction in accordance with Art. 4 by virtue of the habitual residence of the deceased (in the following referred to as the “court of residence”) may or must decline jurisdiction in accordance with Art. 6. Simultaneously, a new general jurisdiction is established for the courts in the State, whose law the deceased has chosen in accordance with Art. 22 (in the following referred to as the “national court”). 2 The Regulation contains two different proceedings:

– a forced change of jurisdiction in accordance with Arts. 6.b and 7.b if a valid choice-of-court agreement is made in accordance with Art. 5. This is similar to the special case in Art. 7.c, where all parties to the proceedings have expressly recognized the jurisdiction of the national court. – Alternatively, in Arts. 6.a and 7.a there is an actual forum non conveniens question, in which it is up to the national court, to decide whether the national court is better placed to rule on the succession. The original proposal by the Commission contained a different model of cooperation based on the model of Art. 15 in the Mainte1

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See Art. 4 para. 4 and following.

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Article 6 paras. 3–5

nance Obligations Regulation which was, however, regarded as too cumbersome for succession proceedings, so that a transfer is now only a matter for the court of residence. The Regulation contains no specific rule for the case in non-contentious 3 succession proceedings in which only one person is “concerned” in the sense of Art. 5. This can, for example, be the case if only one person is the sole legal heir and general succession proceedings are required or an ECS is to be issued. Conceptually one party cannot come to an “agreement” in the sense of Art. 5, so that a request to decline jurisdiction in accordance with Art. 6 could be lodged. In this case, however, it will be for the court of residence to decide if it considers the national court better placed to rule. However, in such a case there is nothing against an immediate assignment of jurisdiction to the national court under Art. 7.c, with the result that the court of residence must mandatorily decline jurisdiction under Art. 6.b. Art. 6, according to its wording, refers to the courts that have jurisdic- 4 tion under Arts. 4 or 10. However, the practical effect in cases of subsidiary jurisdiction under Art. 10 is likely to be marginal, since Art. 10 itself is based on the nationality of the deceased, on the basis that assets of the estate are located in that State. For a court that has jurisdiction in accordance with Art. 10, Art. 6 would be applicable, if the deceased has changed his nationality after the making of the Will, in which the choice of law under Art. 22 is made, or when no assets of the estate are located in the State of his nationality.

II. Special conditions 1. Choice of law under Article 22 For both types of declining of jurisdiction, it is a mandatory require- 5 ment that the deceased made a choice of his or her national succession law, and that he has thereby chosen the law of a Member State. This correspond to the contents of Art. 5.1 (see commentary to that Article). Felix Odersky

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Article 6 paras. 6–8

2. Declining of jurisdiction under Article 6.a 6 Declining of jurisdiction under Art. 6.a needs a request by one of the

parties to the proceedings. The concept “parties to the proceedings” will generally correspond to the concept of “parties concerned” in Art. 5. However, it is sufficient that only one of those parties submit the request. Art. 6.a will be applied, not only when the parties cannot agree, but also if there is uncertainty as to who are the parties concerned in the sense of Art. 5 (see Art. 5 para. 6 and following). 7 It is then a matter for the court of residence to judge whether the na-

tional court is better placed to rule on the succession, and this, according to the wording of the Regulation, must be based on the practical circumstances of the succession. As examples of such practical circumstances, the Regulation mentions the habitual residence of the parties and the location of the assets of the estate. The concept of habitual residence will in this case, however, not need any long lasting connection as in the case of Arts. 4 and 21. Neither will special investigations be made, since the residence of one of the parties can be a “practical circumstance” according to the Regulation. This can even change during the proceedings. Concerning the assets of the estate, particular focus will be on immovable property or other assets noted in official registers, since in these case the national court will be in a better position to decide due to the coincidence of the applicable succession law and the national law applied under Art. 1 para. 2.l. 8 The emphasis on “practical circumstances” in Art. 6.a leads e contrario

to the conclusion that the mere abstract advantage, that the national court would decide on the succession by applying its own law (possibly cheaper and faster), should not be sufficient to enable the court of habitual residence to decline jurisdiction. The mere fact that the court of residence must apply a succession law unfamiliar to it, should, therefore, not lead to declining of jurisdiction as long as there are no additional practical circumstances in the country of nationality. 78

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Article 6 paras. 9–11

However, it should be noted that the court of residence is free to make its decision, while the parties concerned can only appeal under the lex fori. The national court is, however, according to the wording of Art. 7.a, not entitled to review whether it is actually better placed to rule on the succession.

3. Declining of jurisdiction under Article 6.b If a choice-of-law-agreement made by all parties concerned in accord- 9 ance with Art. 5 exists, the court of residence must decline jurisdiction. In this case there is no scope for the court to exercise any discretion. Art. 6, however, according to its wording, does not contain any rule 10 corresponding to Art. 7.c, if a party to the proceedings in the national court initially seised and all other parties concerned have accepted its jurisdiction. However, since the CJEU interprets appearance without contest, as a case of tacit agreement to jurisdiction,2 there is nothing that rules against considering common recognition as a choice-ofcourt-agreement in the sense of Art. 5, so that also in this case the court of residence must decline jurisdiction. The Regulation also contains no rule as to when may be the last point in 11 time that a choice-of-court-agreement can be made. An agreement should therefore be valid if made at any time after the court of residence has been seised (in the sense of Art. 14), even if the succession proceedings have already started.3 If, by this time, the court has already taken decisions that are however not legally binding,4 such decisions will probably remain effective unless they are later annulled by the national court after it has obtained jurisdiction.5

2 3

4 5

See CJEU, CPP v Bilas, C-111/09, para. 20 and following. In the same way, a request under Art. 6.a, can also be made after the start of the proceedings, but in this case the court can consider the ongoing proceedings at its complete discretion. I.e. an already issued ECS, in accordance with Article 64. See Art. 9 para. 7.

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Article 7 paras. 1, 2

Article 7: Jurisdiction in the event of a choice of law The courts of a Member State whose law had been chosen by the deceased pursuant to Article 22 shall have jurisdiction to rule on the succession if: (a) a court previously seised has declined jurisdiction in the same case pursuant to Article 6; (b) the parties to the proceedings have agreed, in accordance with Article 5, to confer jurisdiction on a court or the courts of that Member State; or (c) the parties to the proceedings have expressly accepted the jurisdiction of the court seised. I. General II. Special conditions 1. Choice of law in accordance with Art. 22 2. Jurisdiction in accordance with Art. 7.a

1 3

3.

Jurisdiction in accordance with Art. 7.b 4. Jurisdiction in accordance with Art. 7.c

6 7

4

I. General 1 Art. 7 is linked to Art. 6 in such a way that it creates a new broad uni-

versal jurisdiction, if the parties to the proceedings have made a choiceof-court agreement in accordance with Art. 5 or if the court of residence has declined jurisdiction in accordance with Art. 6.1 2 Applying directly to the national court is, as a result of a choice-of-court

agreement in accordance with Art. 5, due to Art. 7.b, permitted without the parties first having to apply to the court of residence to obtain a decision, in which that court declines jurisdiction. As a consequence, the parties could apply both to the court of residence and to the national court, if there are different opinions as to who are the parties concerned under Art. 5. As there is no priority stipulated between the courts in Arts. 6 and 7, the courts must act in accordance with Art. 17 (lis pendens).

1

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For the definition of ‘court of residence’ and ‘national court’ see Art. 6 para. 1.

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Article 7 paras. 3–6

II. Special conditions 1. Choice of law in accordance with Art. 22 The imperative condition for a different jurisdiction in accordance with 3 Art. 7 is that the deceased has made a valid choice of law in accordance with Art. 22 and has chosen the law of a Member State. The content of this corresponds to Art. 5.1 (see the comments to that paragraph under Art. 5 para. 2 and following).

2. Jurisdiction in accordance with Art. 7.a Firstly, there are links between Arts. 7.a and 6.a, requiring that the court 4 of residence has previously declined jurisdiction. The national court is thus not to allow proceedings to commence as long as the court of residence has not declined jurisdiction, even if it considers itself better placed to rule on the succession. On the other hand, the national court is bound by a previous decision 5 of the court of residence, declining jurisdiction in accordance with Art. 6.a, even if the national court decides that to be a legally incorrect decision. As Art. 7.a refers to the whole Art. 6 (and not only to Art. 6.a this is also valid, as long as all the conditions of Art. 6.b (linked to Art. 5) exist, e.g. although all the parties concerned have not accepted the agreement, the court of residence has mistakenly declined jurisdiction. Thus, the national court automatically has jurisdiction and has no ability to decline jurisdiction or send the proceedings back to the court of residence, if the court of residence has previously declined jurisdiction in accordance with Art. 6.

3. Jurisdiction in accordance with Art. 7.b If the parties concerned have made a valid choice-of-court agreement in 6 accordance with Art. 5, the national court, in accordance with Art. 7.b, has jurisdiction over the succession as a whole. In this case, the national court can immediately be seized by any of the parties to the proceedings, without any prior proceedings in the court of residence or a decision by that court to decline jurisdiction. Felix Odersky

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Article 7 paras. 7, 8; Article 8

4. Jurisdiction in accordance with Art. 7.c 7 The jurisdiction of the national court can in accordance with Art. 7.c be

expressly accepted. The definition of ‘parties to the proceedings’ is the same as in Art. 7.b, which means that all parties concerned, in accordance with Art. 5, must agree.2 8 Art. 7.c thus overlaps with the function of the rule concerning jurisdic-

tion based on appearance without contesting the jurisdiction of the court in Art. 9. Formally, there is a difference between the two rules in the sense that in Art. 7.c an active acceptance is required, whilst Art. 9 is applicable as soon as a party enters an appearance without immediately contesting the jurisdiction of the court. Art. 9 also requires that the national court is already ‘exercising jurisdiction pursuant to Art. 7 and it may not be clear until later, that a party concerned under Art. 5 has not accepted the agreement. If the court, however, when already examining whether it has jurisdiction in accordance with Art. 15, establishes that not all of the conditions in Art. 5 are met, it may not rely on all parties appearing without contesting the jurisdiction of the court, but must instead expressly ask for acceptance in accordance with Art. 7.c. Art. 7.c thus has importance in two cases. – When only one of several parties to the proceedings applies to the national court, it is not obliged to decline jurisdiction immediately, but can ask if all parties concerned accept its jurisdiction. The intention of the Regulation is that the court is obliged to proceed in this way. – If only one person is a party to the proceedings, his or her application can immediately be regarded as an acceptance in accordance with Art. 7.c (see also Art. 6 para. 3).

Article 8: Closing of own-motion proceedings in the event of a choice of law A court which has opened succession proceedings of its own motion under Article 4 or Article 10 shall close the proceedings if the parties to the proceed2

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For the definition of ‘parties concerned’ see Art. 5 para. 6 and following.

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Article 8 paras. 1–4

ings have agreed to settle the succession amicably out of court in the Member State whose law had been chosen by the deceased pursuant to Article 22.

Art. 8 is complementary to the rules in Arts. 5 to 7 for the special case in 1 which a court, that has jurisdiction in accordance with Arts. 4 or 10, has opened succession proceedings of its own motion but all of the parties to the proceedings want to settle the succession amicably out of court in the Member State whose law has been chosen by the deceased pursuant to Art. 22.1 For example, the deceased had his last habitual residence in the Czech Republic. Thus, succession proceedings are opened there of the courts own motion. All of the heirs live in France. They want the succession to be settled by their French notary in an ‘act de notoriété’. This case is special since the parties cannot make a choice-of-court agreement in accordance with Art. 5, because they cannot choose a national court, since a French notary is not a ‘court’ according to the definition in Art. 3.2. If it were not for the special rule in Art. 8, the parties would have no ability to avoid the imperative jurisdiction of the court of residence and hence proceedings in that court. The prerequisite for the application of Art. 8 is that the parties to the 2 proceedings have made an agreement out of court in the Member State whose law the deceased has chosen pursuant to Art. 22. In this way, the conditions in Art. 8 are the same as the conditions for a choice-of-court agreement under Art. 5.1. However, in Art. 8 there are no conditions as to the form of the agreement. Since Art. 5.2 is not directly applicable, an agreement under Art. 8 can be documented in other ways. One problem with the rule in Art. 8, however, is that it only requires an 3 agreement, and not the completion of the agreement out of court. As a result, the parties can, in accordance with the Regulation, by signing an agreement, stop all proceedings that have been opened by the court of residence of its own motion. For proceedings that can only be started by a claim or an application by 4 1

See also Recital 29, first sentence.

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Article 9 para. 1

one party, Art. 8 is not applicable, since the Regulation assumes that, in all Member States, such proceedings can be closed by a simple withdrawal of the application. In the second and third sentences of Recital 29, it is made clear that it is possible for the parties to make an amicable agreement out of court in any Member State of their choice.

Article 9: Jurisdiction based on appearance 1. Where, in the course of proceedings before a court of a Member State exercising jurisdiction pursuant to Article 7, it appears that not all the parties to those proceedings were party to the choice-of-court agreement, the court shall continue to exercise jurisdiction if the parties to the proceedings who were not party to the agreement enter an appearance without contesting the jurisdiction of the court. 2. If the jurisdiction of the court referred to in paragraph 1 is contested by parties to the proceedings who were not party to the agreement, the court shall decline jurisdiction. In that event, jurisdiction to rule on the succession shall lie with the courts having jurisdiction pursuant to Article 4 or Article 10.

I. General 1 Art. 9 has Art. 5 of the Maintenance Obligations Regulation and Art. 24

of the Brussels I Regulation (Art. 26.1 Brussels Ibis Regulation), as models for jurisdiction based on appearance without contesting the jurisdiction of the court. In the Succession Regulation, however, there are narrower conditions for the rule. The reason is that although the CJEU has interpreted jurisdiction based on appearance without contest as a later silent agreement on jurisdiction, it has not set out the actual limits that these Regulations create for such a proper agreement as to jurisdiction.1 Art. 9 thus limits jurisdiction based on appearance without contest, solely to the circumstances in which not all the parties concerned under Art. 5 have been parties to the choice-of-court agreement. If the choiceof-court agreement is invalid on other grounds, i.e. because the rules as

1

84

See Spitzley v Sommer, C-48/84, para. 13 and CPP v Bilas, C-111-09 para. 20 and following.

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Article 9 paras. 2, 3

to form in Art. 5.2 have not been fulfilled, this invalidity cannot be cured by an appearance without contest.

II. Special conditions 1. Appearance without contesting the jurisdiction of the court in accordance with paragraph 1 The application of Art. 9 requires that proceedings have already started 2 in the national court with jurisdiction in accordance with Art. 7,2 and it then subsequently appears that not all parties concerned under Art. 5 have been parties to the choice-of-court agreement. This could particularly be the case, if an actual heir, who is a party concerned under Art. 5, was not known about until later. The definition of ‘appearance without contesting the jurisdiction of the 3 court’ can be interpreted in the same way as in Art. 5 of the Maintenance Obligations Regulation and Art. 24 of the Brussels I Regulation (Art. 26.1 Brussels Ibis Regulation). The definition should be interpreted autonomously, which means that an appearance without contest in accordance with the definition in the Succession Regulation can arise in different circumstances to an appearance without contest defined in national laws (i.e. at an earlier stage than in accordance with the lex fori or already after an application in the proceedings). This means that the contesting of jurisdiction must be made not later than in a Statement that is regarded by the rules of proceedings of the court seised as the first Statement of defence.3 An appearance without contest can, for example, thus already occur through the first petition to the court, even if this has objections against certain aspects of the legal dispute (also if only ones as to form), without the inadequate jurisdiction being contested. Art. 9 does not impose any duty on the court to make the party aware of the effects of an appearance without contesting the jurisdiction. Thus, if the court has not informed the party of the risks of appearance without 2

3

For comparison with the acceptance of jurisdiction in accordance with Art. 7 see the comment to that Art. para. 8. See Elefanten Schuh, C-150/80 para. 16.

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Article 9 paras. 4–7

contest, this will not prevent the rule in Art. 9 taking effect, even if such a duty to inform is mandatory under the lex fori.4 4 The form for contesting the jurisdiction will follow what is prescribed in

the lex fori of the court seised. It is, however, sufficient if the content of the contesting has a general tenor, even if the wording appears rather to concern the local jurisdiction. Neither is it necessary that the contesting party specifies which court in his or her opinion has actual jurisdiction. Nothing prevents the party from making objections to the substance of the case, as long as at the same time he or she expressly contests the jurisdiction of the court. 5 A mere silence, however, cannot be interpreted as an appearance with-

out contest, not even if the court has expressly given the party a deadline. If the court after an application from one party in a non-contentious case has opened the proceedings, and the active participation of the other parties concerned is not mandatory, and if these other parties do not answer a petition from the court, the court cannot proceed in accordance with Art. 9.

2. Declining jurisdiction in accordance with paragraph 2 6 If a party concerned contests the jurisdiction of the national court in

due time, the court shall decline jurisdiction. In this case, the general jurisdiction under Art. 4 or the subsidiary jurisdiction under Art. 10 will be revived. Para. 2 can be applied by analogy, if the parties cancel a choice-of-court agreement. 7 Irrespective of these effects on jurisdiction, the Regulation does not deal

with the question of decisions that the national court has already made, but which have not yet come into force. Likewise, the fate of an already issued ECS is not made clear. In accordance with the intention of Art. 22.2 of the Brussels IIbis Regulation, it would be possible to argue

4

86

However, there is no prohibition against the court informing a party about the rule in Art. 9. The new version of Art. 26.2 in the Brussels Ibis Regulation, (EU) no. 1215/2012, in which a duty to inform consumers is provided, implies that such a duty to inform might become standard in the future.

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Article 10 paras. 1, 2

that such decisions should remain in force until the revived court of residence has decided otherwise.5

Article 10: Subsidiary jurisdiction 1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as: (a) the deceased had the nationality of that Member State at the time of death or, failing that, (b) the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed. 2. Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.

I. General If the deceased did not have his last habitual residence in a Member 1 State but in a third State (including UK, Denmark and Ireland), there is no general jurisdiction in accordance with Art. 4. If in this case the succession has connection with a Member State because there are assets of the estate located in that Member State, there will, however, normally be a need for jurisdiction in a Member State. Therefore, Art. 10 contains a subsidiary jurisdiction, which together with Art. 11 gives a hierachy of jurisdictions. Thus, any application of national supplementary jurisdiction rules is excluded.1 Art. 10.1 opens, in the same way as Art. 4, a broad universal jurisdiction 2 of a Member State for the succession as a whole, while Art. 10.2 only

5 1

See Dutta, FamRZ 2013, pages 4 and 7. See Recital 30.

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Article 10 paras. 3–6

gives a type of supplementary jurisdiction of one or several Member States for the assets of the estate located in that State or States.

II. Special conditions 1. Location of assets of the estate 3 The basic condition of Art. 10.1 and Art. 10.2 is that the courts of a

Member State can only have jurisdiction, if there are assets of the estate located in that State. The definition of where specific assets are located is not expressly stipulated in the Regulation. The decision as to where assets are located will, however, normally be made without a problem, using an autonomous interpretation in accordance with nationally and internationally accepted norms. 4 The question also not defined is what point in time should be relevant

for the decision as to the location of the assets. The options would be either the time that the court is seised (Art. 14) or the time of death of the deceased. To avoid a random change of the supplementary jurisdiction rules in the Regulation, the author believes that the time of death should be decisive. If after the death, but before the court is seised, assets of the estate are moved, it is possible that jurisdiction could be given both to the court in the Member State where the assets were at the time of death, and also to the court in the Member State to where the assets were moved.

2. Jurisdiction in accordance with paragraphs a) and b) 5 In Recital 30, it is expressly stated, that Art. 10.1 paras. a) and b) exhaus-

tively list in a hierarchical order. Thus, if the deceased was a national of a Member State where assets of the estate are also located, this State has exhaustive jurisdiction on the succession as a whole. This means that jurisdiction under subpara. b) and para. 2 is not applicable. 6 The Regulation does not set out rules on jurisdiction, if the deceased

was a national of more than one Member State. A priority of ‘the effective nationality’ is not stipulated in the Regulation. Under the wording of the Regulation and the principle in Art. 22.1.2, more than one Member State, can if the conditions in Art. 7.a are met, have a broad juris88

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Article 10 para. 7, 8; Article 11

diction. If summons or applications are lodged in more than one State, due to these competing jurisdictions, these summons/applications must be treated in accordance with Art. 17 (lis pendens). Only if the deceased did not have the nationality of a Member State 7 (excluding UK, Denmark and Ireland), or left no assets in his State of nationality, will the supplementary connection to the previous habitual residence of the deceased in a Member State be applied. Note however the condition in para. b) that the deceased must have had his previous habitual residence in that Member State not more than five years before the court is seised in accordance with Art. 14 (It is very surprising that this is not expressed to be from the time of death of the deceased).

3. Limited jurisdiction in accordance with paragraph 2 If assets are located in one or more Member States, but the conditions of 8 para. l.a or 1.b are not met, each Member State, in which assets of the estate are located, has subsidiary jurisdiction. However this jurisdiction is limited to decisions that concern the assets located in that respective Member State. If because of this, more than one Member State has jurisdiction, no competing jurisdiction will arise, but parallel proceedings can subsist.

Article 11: Forum necessitatis Where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected. The case must have a sufficient connection with the Member State of the court seised.

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Article 11 paras. 1–5

I. General 1 Art. 11 is modelled almost word for word on Art. 7 of the Maintenance

Obligations Regulation. Under the rule of forum necessitatis, an applicant’s right to justice should be guaranteed, within the scope of Art. 6.1 of the European Convention on Human Rights and Art. 47 of the Charter of Fundamental Rights of the European Union. Because of the Regulation’s exhaustive system of universal jurisdiction (see the commentary to Art. 4 para. 1), there could be a denial of justice if there were no rule of forum necessitatis. Art. 11 therefore excludes any corresponding national forum necessitatis rules of the Member States. 2 Art. 11 gives the court seised the ability to take a decision (‘may …

rule’), but the court must meet stringent requirements, since the rule of forum necessitatis is only to be used ‘on an exceptional basis’.

II. Special conditions 3 The use of the rule of forum necessitatis firstly requires, that no court of

a Member State has universal jurisdiction in accordance with other Articles of the Regulation. This does not only refer to Arts. 4 and 10 but also to Art. 7.b and 7.c and – from the point of view of applicable law – Arts. 13 and 19. 4 In these circumstances, it must be considered in which third State, with

which the succession is closely connected, the proceedings could be held. Such a close connection with a third State is always met, if at least, the courts of this third State would have jurisdiction under Arts. 4 or 10 (if it were a Member State). In addition, a close connection will always exist, if the deceased had the nationality of this third State, no matter whether any assets of the estate within the meaning of Art. 10 were located there. 5 It is also necessary that proceedings cannot reasonably be brought or

conducted or would be impossible in the third State or indeed, in any third State, with which the case is closely connected. As an example of what might make proceedings impossible, Recital 31 refers to civil war. As a case that can ‘not reasonably be brought or con90

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Article 11 para. 6; Article 12

ducted’ the same Recital refers to a situation when a beneficiary cannot reasonably be expected to initiate or conduct proceedings in that State. This might generally be the case, if from a European perspective, proceedings characterised as rights under law cannot be expected in the third State (i.e. because of discrimination against foreigners or serious corruption in the courts). It could however also have its grounds merely in the specific application (i.e. in the case of political persecution). It could also be regarded as unreasonable, if from the beginning it is clear, that a decision in the third State will not be recognized in that Member State where it is to be enforced (i.e. because of public policy). It can however not be regarded as ‘unreasonable’ merely because the proceedings in the third State could take longer or be more costly, if nevertheless besides this, there is an ordinary rule of law. In accordance with the second sentence of Art. 11, the rule of forum 6 necessitatis can only be applied by a Member State with which the case has a sufficient connection. As the location of assets of the estate always gives jurisdiction in accordance with Art. 10.2, Art. 11 might be applied in the Member State where the applicant had his habitual residence. Also the nationality of the deceased might be regarded as a sufficient connection, at least if the succession law of that Member State is to be applied (i.e. if there is a choice of law in accordance with Art. 22, although jurisdiction in accordance with Art. 7 has not been given, or because of renvoi in accordance with Art. 34.1.a).

Article 12: Limitation of proceedings 1. Where the estate of the deceased comprises assets located in a third State, the court seised to rule on the succession may, at the request of one of the parties, decide not to rule on one or more of such assets if it may be expected that its decision in respect of those assets will not be recognized and, where applicable, declared enforceable in that third State. 2. Paragraph 1 shall not affect the right of the parties to limit the scope of the proceedings under the law of the Member State of the court seised.

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Article 12 paras. 1–3

I. General 1 Art. 12 limits the basic rule in Arts. 4 and 10.1, that the universal juris-

diction of a Member State relates to the succession as a whole, if it may be expected that a decision concerning assets in a third State will not be recognized or enforced in that third State. The content of the rule in Art. 12 is actually more a question of the need for protection of the law (i.e. there is an objection that carrying on with the proceedings would only have a formal character, since the decision could not be enforced for other reasons) than a rule of jurisdiction, especially as jurisdiction in accordance with Art. 15 must already have been considered at the beginning of the proceedings and then can hardly be burdened with complicated investigations as to recognition in third States. 2 The reason for the rule in Art. 12 is somewhat unclear, as this rule is not

mentioned in any Recital and has no model in other EU Regulations. Actually, the Regulation should not have to consider the question as to whether a decision will be recognized in a third State, since such recognition and enforcement are solely ruled by the national law of the third State concerned. The background to Art. 12 is probably the concern, that when the Regulation gives a court universal jurisdiction, that court due to its national rules could be obliged of its own motion to extend its proceedings to all assets of the estate worldwide, which could lead to extensive work and costs for the court and the parties (e.g. investigation obligations). Art. 12 therefore introduces this rule that makes it possible to limit the succession proceedings locally, even if the lex fori of the court seised does not usually understand such limitation of proceedings. The rights of the parties to apply for or to agree to further limitations or to limit the proceedings in other ways in accordance with national law, will not be affected (Art. 12.2).

II. Special conditions 3 The prerequisite for Art. 12 is primarily that assets of the Estate are

located in a third State, where the same principles can be considered as in Art. 10. Particularly in this case, moving the assets to the third State after the death of the deceased, should not be regarded as a suffi92

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Article 12 para. 4; Article 13 para. 1

cient reason for limiting the proceedings. Further, it must be proved, that the decision of the court, which has jurisdiction in accordance with the Regulation, is not expected to be recognized or enforced in the third State. An adequate investigation of this question must be made by the court. If these conditions are met, the court may at the request of one of the 4 parties decide to limit the proceedings in this way, so that it does not rule on such assets. The word ‘parties’ must in this case be defined in the same way as in Art. 5. The court can decide to exclude all assets in the third State or only some of those assets (i.e. particularly immovable property). Since the court is bound by a request of a party, it can be expected, that an application of a party might be limited to certain assets, so that the court cannot of its own motion extend its decision to more assets than have been noted in the application.

Article 13: Acceptance or waiver of the succession, of a legacy or of a reserved share In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court.

I. General Art. 13 has no model in other EU Regulations, since it concerns actions 1 and declarations that are specific to succession law. The Regulation creates an additional jurisdiction, in order to make it possible for heirs and other beneficiaries, who do not have their habitual residence in the same State as that in which courts have universal jurisdiction in accordance with the general rules in Arts. 4-11, to go to a court in the State where these persons have their habitual residence. Art. 13 supplements Felix Odersky

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Article 13 paras. 2–4

Art. 28, which permits these declarations also to be valid if they are made in the form that is stipulated in the State where the person making the declaration has his or her habitual residence. Thus the Regulation creates an additional jurisdiction in such cases, where the local form rules in accordance with Art. 28.b require the participation of a court. 2 Neither Art. 13 nor Art. 28 sets out anything as to how such a declara-

tion is to be made known to the court that has the general jurisdiction. Recital 32 assumes, however, that the persons who have availed themselves of the ability to make such declarations in their State of habitual residence, will of their own motion inform the court or the authorities, who are handling or will handle the succession. If the report of the declaration to the court with general jurisdiction for the succession is a condition for its validity, it will therefore be necessary for the party to ask the court, in which the party has his or her habitual residence, for a protocol and of his or her own motion submit that to the court with general jurisdiction. If in accordance with the applicable succession law, a certain time-limit exists in which to submit such a declaration, this will not be regarded as fulfilled until the declaration has reached the court that has general jurisdiction. 3 Art. 13 does not set out any rules for the local jurisdiction. To which

local court the party can submit his or her declaration, must thus be governed by the national law, if a universal jurisdiction by way of exception is not excluded (see below para. 7 and following). 4 Recital 32 also sets out that the competence of other authorities should

not be precluded. If waivers are received or verified by an authority or a notary, their competence is ruled by their national law, but the validity of the declaration is ruled by the applicable succession law. Declarations by way of an authentic instrument made in another State are to be recognized in accordance with Art. 59 and following.

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Article 13 paras. 5, 6

II. Special conditions 1. Type of declarations As in Art. 28 the special rules in Art. 13 are not applicable to all declara- 5 tions given before a court, but only to declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share or a declaration designed to limit the liability for the debts of the estate. Recital 33 states that a mere declaration for limiting liability is not valid, where the applicable succession law requires specific legal proceedings, e.g. setting up an estate inventory. The Article is thus only applicable, if the court, where the person who makes the declaration has his or her habitual residence, limits its activity solely to receiving the declaration. Further, it is necessary, that the declaration under the law of the Mem- 6 ber State, where the person who makes the declaration has his or her habitual residence, may be made before a court. This will always the case, if one must appear before such a court, or at least has the possibility to give a declaration to protocol by the court. If the applicable succession law does not have any rules at all for the role of the courts in the making of such declarations (e.g. because the waiver can be made in writing to the court, or only before a notary or any other authority, who does not act as a court in the manner mentioned in Art. 3.2, or is made directly to the other parties concerned), the courts in the Member State, where the person who wishes to give such a declaration has his or her habitual residence, will not have jurisdiction. This is the case even if these last mentioned courts due to their own laws, perhaps in accordance with Art. 28, have the right to receive such declarations. If for instance under the applicable law a waiver of a legacy only can be made directly to the heirs, courts in other States will not have jurisdiction under Art. 13, even if a waiver of a legacy must be made before a court due to the form rules assigned under Art. 28.b. In such a case it is expected that the party must make his or her declaration in the more simple form of the applicable law, without engaging the court in the State where he or she has his or her habitual residence.

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Article 13 paras. 7–9

2. Double examination of jurisdiction 7 By virtue of the last half sentence of Art. 13 the courts in the State, in

which a person wants to make such a declaration, will only have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court. In this way there is a type of double examination of jurisdiction, which leads to the result that a court does not have to perform totally different activities, that are not known at all to that court. 8 These conditions will be fulfilled without any problem, if the court’s

own rules of form (under Art. 28.b) are familiar with such declarations being made before a court. 9 If instead the party wants to make a declaration before his or her ‘own’

court but in the form under the applicable succession law (in accordance with Art. 28.b) it is unclear from the wording how far this ‘barrier of jurisdiction’ will reach. First, it is presumed that no court will be forced by Art. 13 to perform activities that are totally unknown to that court. If for instance a State has no rules at all about declarations of waiver made before a court, it will not have to take part in such declarations in international cases merely because of the rules in the Regulation. It may be possible to resolve this issue using Art. 28. The court does not have to be involved in unknown activities in accordance with the applicable succession law, if the form under Art. 28.b makes available a similar declaration, without a court being involved. If for instance the applicable succession law States, that the waiver of succession is made by way of a declaration before a court, and this is possible under the law in the State, where the party has his or her habitual residence, through a simple written declaration, there is no need for a court to participate in unknown activities (in the way of Art. 28.a), since the declaration of waiver can be made under Art. 28.b without engaging a court. In addition to the above-mentioned limitations, however, and in order to satisfy the intentions of the Regulation, very rigorous conditions should not be demanded in order to simulate foreign declarations for 96

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Article 14 para. 1

the court, to ensure that a party is able simply to turn to the court in his or her State of habitual residence. The jurisdiction of such a court should thus only be capable of being refused, if the national law of that court does not in any way recognize similar declarations. For example, all types of benefits (inheritance, legacy or reserved share) could be waived in accordance with the applicable succession law, even if the court, to which the party has turned, only has jurisdiction under its own law to receive some of these declarations. In relation to the form of the declaration it does not make any significant difference for that court, what sort of benefit the waiver concerns.

Article 14: Seising of a court For the purposes of this Chapter, a court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court; or (c) if the proceedings are opened of the court’s own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.

I. General Arts. 14.a and 14.b are similar to Art. 30 of the Brussels I Regulation 1 (Art. 32.1 Brussels Ibis Regulation), to Art. 16 of the Brussels IIbis Regulation and to Art. 9 of the Maintenance Obligations Regulation. However, since these two paragraphs and the other Articles referred to, that have acted as models, only concern contentious proceedings, the EU Parliament proposed para. 14.c which was added, so that proceedings opened of the court’s own motion are also included.

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Article 14 paras. 2–4

2 The Article contains an autonomous definition of the moment when a

court in a Member State should be deemed to be seised in succession proceedings, and is thus synchronised with the lis pendens rule in Art. 17. The unification in the EU Regulations of the definition of the moment, when a court is seised, should establish a common point of time, in order to ensure that one of the parties, does not obtain an advantage of time, resulting from different national rules when it comes to the seising of the court. However, since under Art. 4, the universal jurisdiction is exhaustive, and thus competing jurisdictions in the area of succession should be almost impossible, Arts. 14 and 17 – unlike similar Articles in the other EU Regulations – should not have any great importance in practice. 3 The point of time under Art. 14 is, however, not decisive if time limits

for waivers or limitations, have been observed under the applicable law or under the law of the lex fori of the court which has general jurisdiction. Whether these time limits have been duly observed by a particular claim or application, should be judged exhaustively in accordance with the applicable succession law and the lex fori rules for the seising of the court.1

II. Special conditions 1. Contentious proceedings Art. 14.a and 14.b 4 The rules in Art. 14.a and 14.b, as worded and in accordance with the

models in the other EU Regulations, concern contentious proceedings, in which an instituting document from a plaintiff, claimant or applicant must not only be lodged with the court, but also served on an opposing party. The rules in paras. 14.a and 14.b should therefore, by reference to the two most usual ways of instituting proceedings in Europe, establish the earliest possible time for the seising of a court in favour of an applicant. In States, where under the lex fori the claim must first be lodged with the court, this is under para. 14.a, the time when the document institut1

98

See Rauscher/Andrae, Europäisches Zivilprozess- und Kollisionsrecht, Art. 9 EG-UntVO Rn 5.

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Article 14 paras. 5, 6

ing the proceedings is lodged with the court. If, in the State of the court seised, the document must be served on the defendant, the crucial moment, is instead under para. 14.b, when the document is received by the authority responsible for service. A further condition is that the claimant, in either case, takes the steps 5 that he is required to take under the lex fori; for the case in para. 14.a, to have service effected on the defendant, and for the case in para. 14.b, to have the document lodged with the court. Which are the concrete steps, are decided by the lex fori of the court seised. This means, e.g. that it might be necessary to lodge a certain number of copies of the claim and to pay a fee to the court. Specific European rules must, as well, be observed, e.g. that the defendant can reject the service of the document if it has not been translated in accordance with Art. 8 of the EU Service Regulation. If under the lex fori there are specific legal time limits for actions by the claimant (e.g. payment of the fees to the court before the end of a time limit) must these limits also be observed in order to fulfil the requirements in accordance with Art. 14. If there are no particular limits, it will be necessary for the claimant to complete the necessary actions without delay.2 If the lack of service is not a result of neglect by the claimant, the effective seising of the court is stayed in accordance with Art. 14.3 If these are delays that are caused by the claimant, the seising of the court is in principle not effective. If the claimant later makes good the missing necessary actions, the predominant opinion under other EU Regulations is that the time of the making good is decisive for the time when the court shall be deemed to be seised and not the later time of the actual service under the lex fori. In the new Brussels Ibis Regulation Art. 32 was added in order to make 6 it clear that the authority responsible for service in accordance with para. 32.b is the authority, which first receives the document, and that court must note the date of the lodgement of the crucial document.

2

3

See Rauscher/Rauscher, Art. 16 Brussels IIbis Regulation para. 7; Rauscher/ Leible, Art. 30 Brussels I Regulation para. 4.a. See OLG Karlsruhe 28.3.2006, 8 U 218/05; IPRspr. 2006 No. 111.

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Article 14 para. 7, 8; Article 15

Even though these words have not been included in Art. 14, a corresponding provision may be seen as a part of common European rules.

2. Proceedings opened of the court’s own motion, Art. 14.c 7 Since Art. 14.a and 14.b with the other EU Regulations as models con-

cern contentious proceedings, Art. 14.c was added, which as set out, concern proceedings that are opened of the court’s own motion (e.g. succession proceedings in Austria or in the Czech Republic). In these cases, the court is presumed regarded as seised (even when there is no application at all by a party to the succession), as soon as the decision to open the proceedings is taken, or the succession case is registered at the court. 8 There is, however, no explicit rule in the Regulation for the non-con-

tentious succession case, where the court only takes action after an application, but where no service or a defendant is necessary. The latest point of time when the application is seised by the court, is also easy to establish in these cases in accordance with Art. 14.c, that is when the court has decided to open proceedings or the case is registered. However, if this is delayed by the court, it would lead to the difficulty to explain the difference, that an application which must later be served on the defendant, under Art. 14.a has been established already at the time of lodging with the court, whilst an application for another succession proceeding (that is one that does not need to be served on other persons) has not been established until the court has taken some action. Thus, much speaks in favour of applying Art. 14.a by analogy in these cases, so that the court shall be regarded as seised at the moment that the application is lodged.

Article 15: Examination as to jurisdiction Where a court of a Member State is seised of a succession matter over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.

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I. General Art. 15 has Art. 10 of the Maintenance Obligations Regulation as a 1 model almost word for word. Both are also similar to Art. 25 of the Brussels I Regulation (Art. 27 Brussels Ibis Regulation) and Art. 17 of the Brussels IIbis Regulation. The purpose of the rule is to make decisions by a court, which has jurisdiction in accordance with Arts. 4 and following, secure, so that later, in relation to recognition and enforcement in other Member States, no objection can be raised, that the court did not have universal jurisdiction. As has been discussed elsewhere concerning the similar Art. 10 of the 2 Maintenance Obligations Regulation, the Regulation – contrary to Art. 26.1 of the Brussels I Regulation (Art. 28 Brussels Ibis Regulation) – contains no explicit rule for the case where jurisdiction is based on appearance without contesting the jurisdiction of the court. In accordance with the structure of the Regulation, Art. 15 will be limited in such a way, so that Arts. 7.c and 9 will have priority. If a party concerned, who was not a party to a choice-of-court agreement, enters an appearance to the proceedings, the universal jurisdiction is opened under Art. 9.1 and Art. 7.b, so that a non-jurisdiction-declaration in accordance with Art. 15 can only follow, if that party is given the ability to join the choice-of-court agreement. If the jurisdiction is thereafter contested, the non-jurisdiction-declaration will already follow under Art. 9.2. Thus, Art. 15 can only apply in proceedings where Art. 9 comes into play, if the party concerned outside the agreement neither enters an appearance to the proceedings nor contests the jurisdiction.

II. Special conditions 1. Duty for the court to make investigations out of its own motion The wording of the Regulation only obliges the court to investigate its 3 jurisdiction of its own motion. There is, however, no explicit rule in the Regulation on the question as to whether the court is also obliged to investigate the relevant facts of its own motion (particularly to establish where the deceased had his or her habitual residence) and also to establish evidence of such facts. Felix Odersky

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In accordance with an opinion established to Art. 10 of the Maintenance Obligations Regulation established opinion is that this question should be answered by the lex fori of the court, so that the national law will decide whether the court has a duty of itself or whether it is the parties who have the obligation to present facts and evidence, and the court, thereafter, examines its jurisdiction on the basis of the facts and evidence presented by the parties.1 Such a manner of handling the question would, however, be against the spirit of the Regulation, since, firstly, the limited ability to make a choice-of-court agreement in accordance with Art. 6 could then be circumvented by filtered evidence and, secondly, the intended synchronisation of the universal jurisdiction and the applicable law could be disturbed. On this matter, there is a difference between the Succession Regulation and the Maintenance Obligations Regulation. The latter gives much more ability to base the universal jurisdiction on choiceof-court agreements or on appearance without contesting the jurisdiction of the court. At least for the crucial conditions (especially the doubly relevant facts, which not only decide the universal jurisdiction but also are decisive for the applicable law) it is suggested that one must presume a duty on the court to make investigations that arise autonomously out of the Regulation.2 4 Such a duty for the court to investigate refers primarily only to the legal

jurisdiction under Arts. 4 and 11. The establishment of jurisdiction under a choice-of-court agreement under Art. 6.b in connection with Art. 5 should, on the other hand, only be considered if one of the parties refers to this or gives evidence of this in the proceedings.

1

2

See, for instance, Rauscher/Andrae, Art. 10 Maintenance Obligations Regulation, para. 10; Geimer/Schütze/Reuss, Internationaler Rechtsverkehr, Art. 10 Maintenance Obligations Regulation, para. 4. See Geimer/Schütze/Jäger, Internationaler Rechtsverkehr, Art. 15 Succession Regulation, para. 10.

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Article 15 paras. 5, 6; Article 16

2. Legal consequences If the lack of jurisdiction is established, the court must of its own mo- 5 tion declare that it has no jurisdiction. The form in which this is to be made, will be governed by the national procedural law. There is, however, no rule in the Regulation for a binding transfer to courts in another specific Member State. The decision of the foreign court over its own jurisdiction is, however, binding for the courts in other Member States, both when it concerns the conclusion of the decision and also the grounds for the decision.3 If a court mistakenly regards itself as having jurisdiction, this will not 6 affect the validity of a later decision. This decision is to be recognized and enforced by other Member States, and the objection cannot be raised there, that the court did not have jurisdiction (see the limited list in Art. 40). It is, therefore, up to one of the parties to object to such an invalid decision (on the basis of jurisdiction) through an appeal in accordance with the national procedural law in the State where the court is located.

Article 16: Examination as to admissibility 1. Where a defendant habitually resident in a State other than the Member State where the action was brought does not enter an appearance, the court having jurisdiction shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in time to arrange for his defence, or that all necessary steps have been taken to that end. 2. Article 19 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) shall apply instead of paragraph 1 of this Article if the docu3

See Art. 32 and following in Brussels I Regulation (Art. 2.a Brussels Ibis Regulation), CJEU Gothaer C-456/11, para. 41; Geimer/Schütze/Jäger, Internationaler Rechtsverkehr, Art. 15 Succession Regulation, para. 15; Rauscher/Andrae, Art. 10 Maintenance Obligations Regulation, para. 15.

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Article 16 paras. 1, 2

ment instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation. 3. Where Regulation (EC) No 1393/2007 is not applicable, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

I. General 1 Art. 16 has Art. 11 of the Maintenance Obligations Regulation as a

model. Art. 18 of Brussels IIbis Regulation and Art. 26 of Brussels I Regulation (Art. 28 in the Brussels Ibis Regulation) also have almost identical rules. The rules give a defendant, who does not have his or her habitual residence in the State of the court seised, the right to be informed about the documents instituting the proceedings, in order to be able to defend him or herself. Art. 16 will, thus, guarantee the legal right to be heard and exists to function before any examination as to jurisdiction under Art. 15; the wording of para. 1 ‘the court having jurisdiction’ should, therefore, rather be interpreted as ‘the court seised’.1 2 The three paragraphs of Art. 16 are exhaustive in relation to each other,

para. 2 referring to Art. 19 of the EU Service Regulation and para. 3 to Art. 15 of the Hague Service Convention. As these are immediately applicable, when relevant, paras. 2 and 3 actually have a cross referring character. If one of the defendants to the proceedings has his or her habitual residence in a State other than that in which the court seised is situated, there will be the following order of examination:2 – Primarily, Art. 19 of the EU Service Regulation is applicable, in accordance with Art. 16.2, if the service is to be executed in a Member State (including Ireland and the UK).3 1 2

3

See, Geimer/Schütze/Jäger, Internationaler Rechtsverkehr, Art. 16 para. 6. The rules in the EU Service Regulation and the Hague Service Convention are not described here in detail. Instead see the relevant publications. This is also valid for Denmark in accordance with Art. 1.3 of the EU Service Regulation; see the agreement between EU and Denmark, ABIEU No. L 300 of

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Article 16 paras. 3–5

– If the EU Service Regulation is not applicable, Art. 15 of the Hague Service Convention shall be applied, if the habitual residence of the defendant is in a non-EU State that has adopted the Convention. The rules in Art. 15 of the Convention are very similar to those in Art. 19 of the EU Service Regulation. – As a last resort, the rule in Art. 16.1 is to be applied. Note, however, that neither the EU Service Regulation nor the Hague 3 Service Convention is applicable, if the address of the receiver of the document instituting the proceedings is unknown.4 This means that these rules cannot be applied, if service is effected by way of an official public announcement. The autonomous rule in Art. 16.1 will, therefore, always be applied, if service has the character of an official public announcement, or if the recipient of the document has his or her habitual residence in a non-EU State, which has also not adopted the Hague Service Convention. The wording of the rule in Art. 16 is such that it only relates to conten- 4 tious proceedings, so that, in proceedings that are carried out of the court’s own motion (i.e. on an application by one party without there being a direct defendant), the right to be heard must be protected by the national procedural rules. Because of the high importance of this right (see Art. 6 European Convention on Human Rights and Art. 47 of the Charter of Fundamental Rights of the European Union), the national procedural rules must give protection that at the least corresponds to Art. 16.1.

II. Special conditions, Art. 16.1 The first condition if the court has to fulfil its duties under Art. 16.1 is, 5 that the recipient of the documents to be served has his or her habitual residence in a State other than that in which the court is situated. As, however, in some cases the habitual residence cannot be established without doubt, Art. 16.1 will usually also be applied, if the service is to

4

November 17th 2005, p. 55, and amendment to the EU Service Regulation of November 27th 2007, ABIEU No. L 311 of December 10th 2008, p. 21. See Art. 1.2 EU Service Regulation; CJEU C-292/2010, de Visser.

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Article 16 paras. 6–8

be carried out in a third State being the actual or presumed residence of the recipient of the served documents. 6 A non-appearance in the proceedings exists, if the defendant does not

make him or herself known either in person or by a representative. The definition is to be interpreted autonomously, and the decisions of the CJEU in relation to corresponding rules in other EU Regulations can also be applied. It is, however, uncertain, whether it is sufficient for an appearance, that the defendant has merely opposed the jurisdiction of the court.5 But this should be enough for the purposes of Art. 16, which only sets out, that the defendant must receive information about the proceedings and, thus, has the ability to defend him – or herself.6 7 The consequences of non-appearance are that the proceedings are

stayed. This must continue until either it is established that the defendant has been able to receive the documents instituting the proceedings in order to defend him or herself, or that all necessary arrangements have been made in order to enable knowledge to be possible in a timely manner. In the documents instituting the proceedings, through which the defendant first receives information about the proceedings, the crucial elements of the litigation must be set out, so that the defendant can make a decision based on the facts, as to whether to participate in the proceedings. 8 Whether service has been made in a timely manner, must be judged by

the court in such a way that the defendant has had a fair chance to defend him or herself. The defendant must, thus, not only have had the possibility of being informed of the proceedings as such, but also of the content of the claim or application.7 Actual knowledge is, however, not 5

6

7

In accordance with the judgment of the CJEU, C-39/02, Maersk Olie & Gas A/S, this is probably not enough; the CJEU has made an opposite judgement when a party has opposed against other conditions for the proceedings, CJEU, C-172/ 91, Sonntag/Waidmann. See Rauscher/Andrae, Art. 11 in the EU-Maintenance Regulation, para. 5; Rauscher/Rauscher, Art. 18 in the Brussels IIbis Regulation, para. 8. See CJEU, C-283/05, ASML Netherlands BV v SEMIS.

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Article 16 paras. 9, 10; Article 17

necessary. For example, negligence or delay of a courier is the responsibility of the defendant. The same is valid for any deliberate obstruction to service. A mistake in the manner of the service does not remove the possibility of actual knowledge for the purposes of the intention of Art. 16. A lack of translation can, however, lengthen necessary periods of time. With the alternative rule, ‘that all necessary steps have been taken to 9 that end’ it is possible for the claimant to continue with the proceedings, even though actual knowledge cannot be established beyond doubt or if the arrangements for service have been unsuccessful. An important example of the application of this alternative is, if the documents instituting the proceedings has had to be served on the defendant by way of an official public announcement, as his or her place of residence cannot be ascertained. By virtue of the decisions of the CJEU, the court seised must in this case assure itself, that in order to find the defendant all investigations have been carried out that would be imposed by the duties of care and of good faith.8 If the court does not follow the rules in Art. 16, the defendant who later 10 receives knowledge of the proceedings, must defend him or herself by appealing in the ordinary way in these proceedings, since otherwise the decision of the issue will be recognized in other Member States (see Art. 40.b).

Article 17: Lis pendens 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. 8

See CJEU, C-292/2010, de Visser, para. 35; CJEU, C-327/10, Hypotečni banka s.a., para. 52.

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Article 17 paras. 1–5 I. General II. Special conditions 1. Lis pendens a) Parallel proceedings started

1 3 4

b) Identity of parties c) The same cause of action 2. Legal consequences

5 7 9

I. General 1 Art. 17 has Art. 12 of the Maintenance Obligations Regulation and

Art. 27 of the Brussels I Regulation (Art. 29 Brussels Ibis Regulation) as models. With the strict principle of priority set out in Art. 17, irreconcilable decisions that are not to be recognized under Art. 40.c should be avoided. As there are no competing jurisdictions under the Succession Regulation, this rule will have relatively little practical significance in succession cases. The rule will only be relevant, if the habitual residence of the deceased within the meaning of Art. 4 is contentious or difficult to establish, and thus proceedings are started in more than one State. 2 The rule is only applicable between Member States. If on the other hand

a court has to take into account, that a case has already been seised in a court in a third State, the issue will only be decided in accordance with the court’s national procedural law.

II. Special conditions 1. Lis pendens 3 If lis pendens within the meaning of Art. 17 is to be considered, all of the

following conditions – autonomously interpreted in the spirit of EU law – must be fulfilled:

a) Parallel proceedings started 4 Proceedings in succession cases (in the meaning of Art. 4) must have

been brought in the courts of two different Member States. Art. 14 will apply to define the point in time that each court is seised.

b) Identity of parties 5 The parties must be identical in the two proceedings, but the role of the 108

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Article 17 para. 6

parties (claimant or defendant) and the type of claim (i.e. claim for fulfilment or claim for establishment) do not matter. This is also valid if the identity of the parties in the proceedings is not exactly the same, but their interests are so identical that a decision against one party will be legally binding on the other.1 In succession cases this can, for instance, happen, if an Executor of the Will or an Administrator of the estate is a party to the proceedings, but the actions in the proceedings carried out by him or her will also be legally binding on the heirs or beneficiaries. In the case of similarity of the parties, Art. 17 will only have effect on the precisely identical parties, but for other parties Art. 18 might be applicable to related actions. In the wording of the Article and with the earlier EU Regulations as 6 models, Art. 17 seems only to be applicable to contentious proceedings (‘between the same parties’). Parallel proceedings in succession cases, which are opened of the court’s own motion (i.e. on an application from one party without a specific defendant), should therefore not be included in Art. 17, so that the courts only have to examine under their own national laws of proceedings, if they are allowed to carry on with the proceedings. However, as Art. 14.3 also refers to proceedings opened of the court’s own motion, much supports the view that Art. 17, which is closely connected to Art. 14, could also be analogously applied to those type of parallel proceedings. Only in this way, independent of the respective national laws, will irreconcilable decisions (i.e. establishing who are heirs under different laws) be effectively prevented from being given. Such decisions might then not be recognized under Art. 40. Recital 35 also supports such a broad interpretation, under which it would be generally avoided, that ‘the same succession case’ is brought before different courts, without limiting this to contentious proceedings. Further, Recital 35, which establishes that out-of-court proceedings (e.g. by notaries) in different States must be coordinated by the parties themselves, supports an e contrario conclusion, that Art. 17 must be applicable to all court proceedings, to which the Regulation applies.

1

See CJEU C-351/96, Drouot assurances.

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Article 17 paras. 7–9

c) The same cause of action 7 Further, the cause of action must be identical between the two proceed-

ings, which means that both proceedings must be founded on the same grounds and concern the same matter.2 ‘Be founded on the same grounds’ is meant that they are based on the same facts. Besides, both the proceedings must essentially be based on the same or similar rules of law. In succession proceedings the same grounds must already be expected, if the cases are about the same succession and its consequences. 8 The same matter is at hand, if the proceedings essentially are to obtain

the same purpose (the theory of the kernel). In this way the important thing is not the formal similarity of the claims or applications, but the intended purposes of the proceedings considering the legal interests of the parties. Thus, claims for establishment and claims for fulfilment can, for instance, have the same purpose and exclude each other. In the case of succession, the proceedings with the purpose of establishing who are the heirs, or the shares of the heirs or the validity of a Will normally concern the same matter. Further, claims brought to the courts in two States, on the one hand, for a reserved portion in money, or on the other hand, for reducing an heir’s share of the assets of the succession because of another party’s right to a reserved portion, will concern the same matter as the legal kernel is the right to a minimum part for the relatives who have been excluded under a Will.3

2. Legal consequences 9 If there is a lis pendens situation, the court later seised in accordance

with Art. 14 must of its own motion stay the proceedings, until the court first seised has finally decided on its jurisdiction (Art. 17). The form in which the staying of the proceedings is carried out, will be decided in accordance with the national procedural law of the seised court.

2

3

See CJEU, C-144/86, Gubisch Maschinenfabrik, para. 14; CJEU, C-406/92, Tatry v. Maciej Rataj, para. 39. Geimer/Schütze/Jäger, Internationaler Rechtsverkehr, EU Succession Regulation, Art. 17, para. 18.

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Article 18 para. 1

As soon as the universal jurisdiction of the court first seised has been positively established, the later seised court must decline jurisdiction (Art. 17.2). This will be the case, if the first seised court’s decision concerning its own universal jurisdiction is final, irrespective of whether that is implicit in a judgment on the core issue, or if it is in a separate decision on the question of jurisdiction. The later seised court has no right whatsoever to examine the universal jurisdiction of the court first seised, but is bound by its decision. If the court first seised decides that it does not have jurisdiction, proceedings in the later seised court will be resumed and it will examine its universal jurisdiction.

Article 18: Related actions 1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 2. Where those actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable decisions resulting from separate proceedings. I. General II. Special conditions 1. Related to other actions, Art. 18.1 and Art. 18.3

1 3

2. Consequences of law a) Stay of the proceedings, paragraph 1 b) Declining jurisdiction, paragraph 2

5 8

I. General Art. 18 has – other than the changed heading – Art. 13 of the Mainte- 1 nance Obligations Regulation and Art. 28 of the Brussels I Regulation (Art. 30 Brussels Ibis Regulation) as models.

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Article 18 paras. 2, 3

The purpose of the rule is to contribute to an orderly administration of justice in the EU, so that irreconcilable decisions in different Member States are avoided, even if their immediate legal consequences do not contradict each other and they therefore could be separately enforced.1 2 Since the Regulation does not permit competing jurisdictions, the prac-

tical significance of the rule will be very modest in succession cases, particularly since Art. 18 is subject to Art. 17 and, of course, also to the obligation on the court to examine its own jurisdiction in accordance with Art. 15. One could, however, imagine that different parties could bring related actions (i.e. each for enforcement of a bequest under a contested Will or for payment of a reserved portion) to courts in different States, because a choice-of-court agreement under Art. 5 has only been concluded for one of the actions. The rule could, however, become more significant, if it is applied not only in relation to parallel proceedings in succession cases, but also to claims, when other EU Regulations are applied or when the universal jurisdiction is decided by each court’s national law. In such a case, for example, there could be a relation between a succession case and proceedings for maintenance because of the death of one party or a preliminary question raised on property rights. Since the wording of Art. 18 does not have any limitation solely to succession cases, much speaks in favour of any such relation being sufficient.2 It is crucial, only, that the proceedings, on which the application of Art. 18 is to be considered, concerns a succession case, since otherwise it will not be within the scope of the Regulation under Art. 1. The earlier proceedings could, however, concern another preliminary legal question, which possibly forestalls the succession proceedings.

II. Special conditions 1. Related to other actions, Art. 18.1 and Art. 18.3 3 As with the lis pendens rule in Art. 17, Art. 18 is only applicable, when at 1 2

See CJEU C-406/92; Tatry v Maciej Rataj, para. 52. See, for instance, as an analogy the Maintenance Obligations Regulation Rauscher/Andrae, Maintenance Obligations Regulation Art. 13, para. 2.

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Article 18 paras. 4, 5

least two actions have been brought in the courts of different Member States. Art. 18 is, thus, not applicable, when other proceedings have been started in a third State. Whether the court of a Member State has to take any such action into consideration, will only be decided by the court’s national procedural law. As to the point in time for the seising of the court, Art. 14 is to be applied. The two proceedings must also be ‘related’ (para. 1), which is autono- 4 mously defined in para. 3. Since Art. 18 is subject to Art. 17, this definition is to be broadly interpreted. It is wider than the narrow concept of ‘the same cause of action’ in Art. 17. There is also no need for the parties to be identical in the two proceedings. To be related it is sufficient, that the two proceedings concern the same facts, if that can lead to results that contradict each other. This will always be the case, if the decisions in these proceedings are irreconcilable within the meaning of Art. 40.c. The decisions of the CJEU, however, go further than this, so that actions can be related, even if the decisions can be separately enforced and are aimed at different results, that do not contradict each other.3 For actions to be ‘related’, it will, therefore, be sufficient that the basis for the decisions threaten to contradict each other, i.e. if these are questions about law or evidence that must be analysed, which in the two proceedings play a crucial role, or if the results in the first set of proceedings can be of use in the second proceedings.

2. Consequences of law a) Stay of the proceedings, paragraph 1 If the above-mentioned conditions are met, the later seised court within 5 the meaning of Art. 14 can of its own motion stay the proceedings. This does not require a demand for a stay by any of the parties. The court is free to decide about the stay of its own accord, which means that there might be differing grounds for such a decision (e.g. the costs of the proceedings, the degree of probability that there will be irreconcilable decisions, the extent of relation between the two proceedings, or the expected length of the proceedings etc.) Thus, a stay of the proceedings will be particularly advisable, if questions of law or facts are still to be 3

See CJEU C-406/92; Tatry v Maciej Rataj, para. 53.

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Article 18 paras. 6–9

analysed in the first proceedings, and that will have relevance for the later proceedings. 6 The proceedings may be stayed at any stage, which can be ascertained

by an e contrario interpretation of para. 2, which only concerns first instance. The national procedural law will decide the form of the stay. 7 The court first seised on the other hand has, under the narrow wording

of Art. 18, no ability to stay its proceedings, not even if a preliminary question, that has crucial importance for the proceedings started first, will be analysed in the proceedings started later. However, it is possible, that the court first seised may have such a right to stay the proceedings under its national procedural law, since Art. 18 does not contain any exclusion of the lex fori in this instance.

b) Declining jurisdiction, paragraph 2 8 Under the additional conditions in para. 2, the later seised court can

decline jurisdiction, in order to make it possible to consolidate the proceedings in the court first seised. The formal conditions are firstly, that both proceedings are pending at first instance, and that one of the parties (either the claimant or the defendant) makes an application that the court should decline jurisdiction. 9 Further, the later seised court must ensure that the court first seised has

universal jurisdiction for the case that is pending in the later seised court (and that might be a fresh issue for the court first seised). Moreover, the national procedural law of the court first seised must permit the consolidation of the two proceedings. A transfer to the other court is, however, not provided for in the Regulation. This means that the claimant, who started the case in the later seised court, must, after that court has declined jurisdiction, lodge a fresh claim in the court seised for the related action. This means, however, that Art. 18.2 – in contrast to Art. 18.1 – will have no relevance for succession cases. If the later seised court has jurisdiction in a succession case (which it must examine of its own motion under Art. 15, which takes precedence over Art. 18), it is impossible for the court first seised to have jurisdiction for the same claim, because of the 114

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Article 19 paras. 1, 2

exhaustive rules of jurisdiction of the Regulation. If the jurisdiction has been established by a later choice-of-court agreement, the rule on declining of jurisdiction under Art. 6 would take precedence.

Article 19: Provisional, including protective, measures Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State had jurisdiction as to the substance of the matter.

I. General Art. 19 is modelled on Art. 31 of the Brussels I Regulation (Art. 35 Brus- 1 sels Ibis Regulation) and Art. 14 of the Maintenance Obligations Regulation. Even though the text has been slightly modified, the content of the provision corresponds to these models, so that earlier judgments of the CJEU on provisional and protective measures can be referred to. Art. 19 allows the courts of a Member State to make such provisional measures in matters of succession, as are provided for in its national procedural law, even if the courts of another Member State have jurisdiction (as to the substance of the matter under Art. 4 and following). Thus, the provision contains an exception from the principle of exclusive jurisdiction otherwise followed in the Regulation and at the same time – as is the case in the other Regulations – breaks up the systemic approach by giving national rules of jurisdiction an element of applicability. Without mentioning it explicitly, the Regulation also assumes that the 2 court with general jurisdiction on the substantive issues under Art. 4 and following is entitled to adopt provisional measures under its lex fori. Then it is not necessary to apply Art. 19, so that the court, that

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Article 19 paras. 3–5

has general jurisdiction, does not need to apply the limiting conditions set out by the CJEU.1 If the main proceedings have already started, this does not prevent the applicant from having the ability to choose at the same time also to apply for provisional measures in another Member State under Art. 19. The later seised court, in such a case, however, cannot consider matters within those of the general jurisdiction under Art. 4 and following (since in that case it would have to stay the proceedings under Art. 17). Thus it may only act under the limited conditions of Art. 19 and its national law. 3 According to the decisions of the CJEU, the court granting provisional

measures must expressly set out the reasons for its jurisdiction. If it fails to do this, it is assumed that the measure has been adopted under the more narrow limits in Art. 19.2

II. Special conditions 1. Conditions according to national law and CJEU 4 According to its wording, Art. 19 generally allows provisional measures,

in accordance with the lex fori of the Member State of the seised court. Thus, Art. 19 does not contain a jurisdiction rule of its own, but establishes a “door opener”, so that the court seised has to apply its national law to decide, whether it has jurisdiction. Furthermore, the conditions as to what measures the court may take depend on its national procedural law. 5 Furthermore the CJEU has added two more limiting conditions in rela-

tion to the other EU Regulations. These decisions can largely be applied to the Succession Regulation but one must stress again that this applies only to national proceedings un1

2

UCJ, Van Uden v Deco-Line, C-391/95, para. 22; CJEU, Mietziff v Intership Yachting, C-99/96, para. 41. See CJEU, Mietziff v Intership Yachting, C-99/96, para. 55.

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Article 19 para. 6

der Art. 19, and not to measures decided by the court, which has general jurisdiction under Art. 4 and following. Firstly, the CJEU decisions require that there is a real connecting link between the object of the requested provisional measure and the territorial jurisdiction of the Member State of the court seised, so that the rules of jurisdiction of the Regulation are not simply avoided.3 This will certainly be the case if the provisional measures relate to assets of the estate that are located in the State of the court seised. Secondly, the court must ensure that the provisional nature of the mea- 6 sure is preserved, so that the provisional nature of the measure must be clear from the court order.4 The term provisional measure includes both court orders under the national law made to prevent a change of circumstances and also to safeguard rights, which in other respects are judged by the court having jurisdiction as in need of protection.5 Purely protective measures are therefore, usually of a provisional nature without any problem. More problematic are provisional measures made in order to satisfy payment obligations, which are for example often found in the law of maintenance obligations. From the perspective of the CJEU, a provisional measure is possible in order to enforce preliminary payment in the matter of substance, if this seems appropriate on consideration of the interests of the parties. However the CJEU decisions require in such a case that restitution of the payment is secured for example by collateral security in the event of a subsequent negative decision on the substantive matter.6 However, the case decided by the CJEU was about the obligations to make payment under a contract. It remains to be seen whether this restrictive interpretation also applies to matters of succession, in which some claims can relate to fulfillment in kind (such as the granting of the right to an apartment from the time of the death of the 3 4

5

6

See CJEU, Van Uden v Deco-Line, C-391/95, Para 40 et seq. See CJEU, Van Uden v Deco-Line, C 391/95, Para 41; CJEU, decision from the 21.5.1989, Denilauler v Couchet, para. 15 and following. See CJEU, St. Paul Dairy Industries C 104/03, para. 13; CJEU, Reichert und Kockler v Dresdner Bank, C-261/90, para. 34. See CJEU, Van Uden v Deco-Line, C-391/95, para. 45.

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deceased), which until the decision on the substantive matter is made, cannot be withheld without loss to the beneficiary. 7 Following the model of other EU Regulations and the judgments of the

CJEU, provisional measures are, therefore, usually limited to local court orders in order to ensure the later enforcement of the rights of a party in the main proceedings. However, there is no specific rule for provisional measures in proceedings started by the court on its own motion. The intention of such measures could be to secure assets of the estate until an heir is found. Since in these cases there usually are no later main proceedings, but the measures decided by the court are simply terminated or released, when the provisional protective purpose is no longer needed, the admissibility under Art. 19 could be questioned. However, due to the undeniable need for such protective measures and the fact that the Regulation also includes succession proceedings initiated ex officio, an analogous application of Art. 19 is suggested.

2. Legal consequences 8 Accordingly, if provisional measures under Art. 19 in conjunction with

the relevant national law are admissible, the substantive effects of the decided measures will also follow the lex fori, that is the national procedural law and the succession law of the court that made the decisions. Such decisions in accordance with Art. 39 and following can also be recognized by other Member States, if their effects, set out in the contents of the decisions, extend beyond the territory of the court. 9 Not expressly regulated, however, is the question of whether and how,

provisional measures that have been taken under Art. 19, shall cease if the court that has general jurisdiction later orders provisional measures of its own. A similar rule to that in Art. 20.2 of the Brussels IIbis Regulation is not included in the Succession Regulation. Thus one cannot assume that measures made in accordance with Art. 19 automatically cease. From the nature of Art. 19 it can probably be assumed that there is at least a duty on the court to cancel the measures it has taken ex officio, or at the request of a party, to do so if the court with general jurisdiction has taken similar measures, and that there would therefore be no fur118

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Introduction to Ch. III para. 1; Article 20 paras. 1, 2

ther legal interest to be secured for the applicant. The same would apply if the orders of the two courts were irreconcilable.

Chapter III: Applicable Law Introduction to Chapter III This chapter owes much to the 1989 Hague Succession Convention, 1 following its structure and repeating some of its solutions. For this reason, the commentary on the chapter may borrow from certain parts of the explanatory report for this Convention.7

Article 20: Universal application Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.

This provision appears in substance in every EU Regulation on private 1 international law (Art. 2 Rome I; Art. 3 Rome II; Art. 4 Rome III), just as in every Hague convention since 1960. In the present Regulation this Article avoids two sets of rules on private international law, one applicable in relations between Member States, the other in relations with third States. The text refers to “any law”, while its predecessors showed quite simply 2 “the law”. This wording takes into account the fact that the Regulation contains a number of private international law rules depending on the question concerned; for example one law for succession, another or even several others for the form of a Will, and that the rule of universal application is valid for each of them.

7

See the Waters Report.

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Article 21 paras. 1, 2

Example 1: The deceased, of German nationality, had his final habitual residence in New York. The German judge, who, in accordance with the relevant German rule of private international law (art. 25 § 1 EGBGB), would apply German law to this succession, will, if the succession is opened after the Regulation comes into force, have to apply the law of the State of New York.

Article 21: General rule 1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death. 2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.

I. General 1 This Article is one of the most important in the Regulation. It lays down

two essential principles: first, the unity of the succession (that the law applies to the whole of the succession); and secondly the application of the law of the State of the last habitual residence of the deceased. 2 The first principle thus puts an end to the distinction made by the pri-

vate international law of certain Member States between movable and immovable property in the estate. This duality recognizes a certain pragmatism, in that the law of the State where immovables are situated will always have the last word on their fate after the death of the owner. However it has the great disadvantage of dividing up the estate into a number of parts, subject to different laws, and of making it very difficult for a testator to plan his estate, especially when, of the applicable laws, one recognizes a forced heirship reserved portion and the other has different family protection rules. This disadvantage is avoided if all of the assets in the estate, movable and immovable, are governed by a single law (see the example given in the general introduction, no. 15). 120

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The second principle laid down by Art. 21 of the Regulation is that of 3 making the succession subject to the law of the State of habitual residence of the deceased at the time of death. This connection has been preferred to that of nationality, currently used by the private international law of a number of Member States. This seems more realistic, in that it is most frequently in the State of habitual residence that the centre of vital interests and the majority of the assets of the deceased are found. Furthermore this connection is also principally retained for jurisdiction and makes it possible to ensure the unity of the forum with the applicable law.

II. Paragraph 1 The text is applicable “unless otherwise provided in this Regulation”. It 4 thus gives the general rule, applicable in the absence of a choice of applicable law under Art. 22 or partial renvoi under Art. 34. This objective connection, applicable in principle to “the entire estate”, may also, with regard to some aspects of the succession, be set aside or overridden by other provisions, for example for the form of the Disposition of Property upon Death (Art. 27), for the form of the Agreement as to Succession (Art. 28), the appointment and powers of an estate administrator (Art. 29) or again for certain provisions concerning immovable property or enterprises (Art. 30). In turning to the criterion of habitual residence, the Regulation utilises a 5 concept well known in the private international law of the Member States, since it is used in a number of Regulations (among them Brussels I, Brussels II, Rome I, Rome II, Rome III, Maintenance) and in the Hague conventions made since 1945. However, in a text of the EU, the definition cannot be left to the indi- 6 vidual courts of the Member States. It will thus be for the court of Justice to give it its own definition (see in particular judgments of 18 January 1984, Ekro 327/82, Rec. p. 107, point 11; of 6 March 2008, Nordania Finans et BG Factoring, C-98/07, Rec. p. I-1281, point 17, and also of 2 April 2009, A, C-523-07, Rec. p. I-2805, point 34). This independent definition is not fixed and the court has on several occasions stated that the interpretation of this concept “must take into account the context of the provision and the purpose of the relevant regulations (see, in Paul Lagarde

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particular judgments of 18 January 1984, Ekro 327/82, Rec. p. 107, point 11; of 6 March 2008, Nordania Finans et BG Factoring, C-98/07, Rec. p. I-1281, point 17, and also of 2 April 2009, A, C-523-07, Rec. p. I-2805, point 34)” (CJEU, 22 December 2010, aff. C-497/10, point 45). 7 The definition of the habitual residence can therefore be different, de-

pending on the matter being considered. 8 In social security and also civil service matters, the court of Justice has

defined habitual residence as “the place in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. For the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account”(CJCE 15 September 1994, Magdalena Fernandez/Commission, aff. 452/93, § 22, see already 12 July 1973, Éts Angenieux c/ Hackenberg, aff. 13/73; CJCE 9 October 1984, Witte c/ Parlement européen, aff: 188/83; CJCE, 11 November 2004, Adanez-Vega, aff. C-372/02, § 37). 9 For the application of the Brussels IIbis Regulation, the CJEU has indi-

cated that “the case law of the court relating to the concept of habitual residence in other areas of European Union law … cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Article 8(1) of the Regulation” (CJEU, 2 April 2009, aff. 523/07, point 36). It has considered that the habitual residence must be determined with regard to the context in which the provisions of the Regulation are set out and of the aim of the latter and that for a child this concept “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment” (same judgment, point 44: also CJEU, 22 December 2010, aff C-497/10). 10 It appears therefore that the factual circumstances to be considered in

determining the habitual residence vary with each particular situation. In the field of succession, the Regulation has given useful indications in its preamble (Recitals 23 and 24): ”In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circum122

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Article 21 para. 11

stances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation. (24) In certain cases, determining the deceased’s habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.” These indications will enable the connection to be identified in almost 11 all circumstances. Example 1 The deceased, being of French nationality, worked as a notary in Abidjan (Ivory Coast) for several decades. Having developed cancer, he moved to Paris to have the cancer treated there and he died in Paris three years later. He had kept his flat in Abidjan, paid his social security contributions there and stated himself to be resident in Abidjan in his wealth tax declaration. These facts clearly show that the deceased had maintained his links and his centres of interest, and therefore his habitual residence in the sense of Art. 21 of the Regulation, in the Ivory Coast and that according to the Regulation, Ivorian law should apply to his succession.

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Example 2 The deceased, of Austrian nationality, had lived his active life in Austria. At the age of 70, he settled in Mallorca (Spain) with the intention of staying there until he died. The greater part of his assets were situated in Austria. It appears reasonable to state that the deceased had moved, finally and voluntarily (this being the difference compared with the previous example), the centre of his vital interests to Spain and that under the Regulation, the law of Spain is to govern the succession and it is for Spanish law to resolve any conflict of laws internal to Spain. Example 3 An Austrian national is employed in Germany; he lives there as if permanently, but his wife has remained in Austria, where he owns a flat, to which he goes in order to be with her every other weekend. One might find it difficult to decide between German law and Austrian law, but the factual elements, bearing in mind the indications given by point 24 of the preamble, tend rather to favour the application of Austrian law. Example 4 A person of dual French and Spanish nationality has arranged her life by spending six months of the year in Paris and the other six months in Mallorca. She has assets in both countries and elsewhere. It is impossible on this limited evidence to decide whether the habitual residence is in France or in Mallorca and the Regulation, unlike the Brussels IIbis Regulation (Art. 12, see CJEU, 2 April 2009, aff. 523/07, point 43), does not allow a subsidiary connection, such as, for example, the place of death. In such a case the solution can only be an enquiry, left to the discretion of the judge, to ascertain with which country the deceased had the closest links.

III. Paragraph 2 12 This paragraph sets out, in terms borrowed from other Regulations

(Art. 4 § 3, 5 § 3, 8 § 4 Rome I; Art. 4 § 3, 10 § 4, 11 § 4, 12 § 2 c Rome II), an exception clause, disapplying the automatic objective connecting factor of Para.1 when the facts present links manifestly closer with a State other than the one indicated by that factor. 13 Recital 25 of the preamble gives the following indications: 124

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Article 21 paras. 14, 15; Article 22

”With regard to the determination of the law applicable to the succession the authority dealing with the succession may in exceptional cases – where, for instance, the deceased had moved to the State of his habitual residence fairly recently before his death and all the circumstances of the case indicate that he was manifestly more closely connected with another State – arrive at the conclusion that the law applicable to the succession should not be the law of the State of the habitual residence of the deceased but rather the law of the State with which the deceased was manifestly more closely connected. That manifestly closest connection should, however, not be resorted to as a subsidiary connecting factor whenever the determination of the habitual residence of the deceased at the time of death proves complex.” This clause should only be applied very infrequently, when notwith- 14 standing the final phrase of Recital 25 of the preamble reproduced above, the habitual residence as understood as the place in which the deceased had made the centre of his vital interests is ascertained but a different place is more relevant in accordance with the closeness of the links with it of the deceased. Example 5 A German has been an official at the Council of Europe until his death. 15 He lived in Strasbourg and he has just died there. His habitual residence has been determined as being in Strasbourg and it is therefore French law that the objective connection clearly indicates. However, it is possible that he had preserved his closest links with Germany; for example he might have been appointed by the German government and his intention might have been to return to Germany to end his days there after retirement. This exception clause might in such a case, after examination of all the facts, lead to the application of German law.

Article 22: Choice of law 1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death. A person possessing multiple nationalities may choose the law of any of

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the States whose nationality he possesses at the time of making the choice or at the time of death. 2. The choice shall be made expressly in a declaration in the form of a Disposition of Property upon Death or shall be demonstrated by the terms of such a disposition. 3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law. 4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a Disposition of Property upon Death.

I. General 1 The opportunity given to a testator to choose the law applicable to his

succession is, together with the principle of the unity of his succession (see supra, ad Art. 21, general points), an element that will allow him to plan his estate in advance (see preamble, Recital 38), 2 On the one hand, the testator may have concerns as to the law which, in

the absence of choice, would be objectively applicable to his succession, whether he is unsure, at the time of planning his estate, where his final habitual residence will be determined to be (see supra, ad Art. 21, paragraph 1, examples 2 and 3), or he wishes to protect himself against the difficulty of determining this habitual residence in his particular situation (ibid., examples 4 and 5). This uncertainty, concerning the applicable law, is equally relevant for the competent court, since the connecting factor is fundamentally the same. Moreover, even if the likely objective connecting factor is obvious, it may turn out that the law thus determined does not suit the person who is planning his estate, for example because it is that of a State far removed from his social and cultural environment and it does not meet the expectations of the testator or of his heirs. 3 The choice of the applicable succession law makes it possible for these

difficulties to be overcome. Furthermore, on the question of jurisdiction, it can be supplemented after death by an agreement on choice of forum between the parties 126

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Article 22 para. 4

concerned (heirs, legatees, creditors etc.). Art. 5 permits them, in effect, to grant jurisdiction to the courts of the Member State whose law has been chosen by the deceased (Art. 5) and thus to restore the unity of forum and applicable law, jus. The power to choose the applicable law is not, on the other hand, al- 4 lowed to create additional difficulties. This would be the case if it were not severely limited. Unlike the 1989 Hague Succession Convention, which deemed the choice valid, if the law chosen was that of the habitual residence of the person concerned at the time of choice or at that of his death, the Regulation restricts the choice to that of the law of the nationality in order to avoid, as indicated in Recital 38, the choice of law being made with the intention of frustrating the legitimate expectations of any compulsory heirs.1 Example 1 A Dutchman, whose main residence is in Amsterdam where his family lives, has London as the base for his professional activities, where he also has a residence. He lives in London all the week and returns to Amsterdam at weekends and for public holidays. He chooses English law to govern his succession, knowing that a court might be uncertain when determining his habitual residence in deciding between London and Amsterdam. This choice is not valid as such under the Regulation, since it is not the law of his nationality, but it could give the court an indication when determining the habitual residence of the deceased. Example 2 A German, whose habitual residence is in New York, chooses the law of this State. He dies a few years later, having returned to Germany and settled there. The choice of the law of New York cannot be valid under the Regulation. It could only be valid if the deceased had acquired United States nationality before his death.

1

More generally, on the question of knowing whether the exception of public policy may lead to the supplanting of the applicable law, see infra, ad Art. 35, no. 6 et seq.

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II. Paragraph 1 5 In the context thus outlined, para. 1 gives three important details about

the scope of the choice. 6 First, the choice must affect the whole estate, similarly to the objective

connecting factor (see supra, ad Art. 21, general points). The testator is not allowed to reintroduce by his choice a division of the estate between movable and immovable property. See in the same sense Art. 23, § 1. 7 Secondly, any conflict resulting from a change of nationality on the part

of the person concerned between the date of professio juris and death is governed in the manner most favourable to the freedom of choice. The party concerned may choose “the law of the State whose nationality [he] possesses at the time when [he] makes this choice or at the time of death”. The wording is less clear than that of the corresponding Article of the Hague Convention (Art. 5), permitting the choice of a specific law and validating this choice after death if the chosen law was that of the State of which the deceased was then a national. The sense of Art. 22 of the Regulation is, however, the same. The abstract choice by the testator of the law of the State of which he will be a national on the date of death is indeterminate and does not appear valid. Which law would in fact be applicable if the deceased after making his choice had acquired the nationality of another State without losing his original nationality? Example 3 The deceased, possessing dual French and Belgian nationality, had chosen Irish law for his succession. This choice will be valid if on the date of death he has acquired Irish nationality, without it being relevant as to where he had his habitual residence, or whether he had retained his other two nationalities. He would have been able to choose French law or Belgian law and this choice would have been valid, even if the nationality of the State whose law he had chosen had subsequently been lost. Example 4 The deceased, being of French nationality, chose in his Will “the law of the State of which I will be a national on the date of my death”. In the 128

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Article 22 paras. 8–11

meantime he has acquired Swedish nationality while retaining his French nationality. It would seem that this choice is not valid, since it is not possible to decide whether French or Swedish law should apply. Para. 1 contains a third limitation, in the case of there being more than 8 one nationality. The second section of the paragraph puts all of these laws on an equal footing and allows the testator to choose one or other of the laws of his nationalities. This also removes the priority of the nationality of the forum when it is relevant, as well as the difficulties and uncertainties of investigating the closest connecting nationality, when the person concerned had two nationalities. The determination of nationality, that is to say the question of knowing whether the deceased was a national of this or that State, depends, as is noted in Recital 41, on the law of the said State.

III. Paragraph 2 This paragraph relates to the expression and form of the choice of law. 9 The form is to be in that of a Disposition of Property upon Death. For 10 the law applicable to the formal validity of such a Disposition, it is necessary to go back to the alternative conflicts rules in Art. 27. This, unlike the 1961 Hague Wills Convention which has served as its model, only concerns Dispositions of Property upon Death which are made in writing. From the exclusion from the scope of the Regulation of Dispositions of Property upon Death made orally, it seems possible to infer that the choice of law applicable to the estate must be specified in writing. The text provides that the choice must be made expressly in a declara- 11 tion or be demonstrated by its terms. In rejecting a choice only demonstrated, even “with reasonable certainty”, by the circumstances of the case,2 the text rejects a tacit choice. It is necessary that “the judge, the notary or the solicitor or attorney must have no difficulty in seeing that a designation was made”3 for example, if the deceased made reference

2 3

Cf Art. 3 § 1 Rome I Regulation; Art. 14 § 1 Rome II Regulation. Waters Report, no. 65.

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to specific provisions of his national law or referred to it in any other way (Recital 39). See also Art. 83.4

IV. Paragraph 3 12 In submitting the material validity of the Disposition in which the

choice of law has been made to the chosen law, Para. 3.a has in mind the consent of the testator, which may be rendered invalid by error, fraud or coercion, but not the validity of the choice itself, which has its validity from the Regulation, whatever the internal position of the chosen law on this question.

V. Paragraph 4 13 The formal validity of a modification or revocation of the choice of law

is governed by the same conflict rule as that of a Disposition of Property upon Death, itself. It is therefore necessary to refer to Art. 27, § 2. This does not imply that the form of the modification or revocation needs to be the same as that of the original Disposition, but that the formal validity must be recognized according to one of the laws mentioned in Art. 27, § 1.

Article 23: The scope of the applicable law 1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole. That law shall govern in particular: (a) the causes, time and place of the opening of the succession; (b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner; (c) the capacity to inherit; (d) disinheritance and disqualification by conduct; (e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy; 130

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(f) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in Article 29 (2) and (3); (g) liability for the debts of the estate; (h) the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs; (i) any obligation to restore or account for gifts, advances or legacies when determining the shares of the different beneficiaries; and (j) the sharing-out of the estate. I. General II. Paragraph 1 III. Paragraph 2 1. Sub-paragraph (a) 2. Sub-paragraph (b) 3. Sub-paragraph (c) 4. Sub-paragraph (d) 5. Sub-paragraph (e) a) Transfer of assets, rights and obligations to the heirs or legatees

1 2 3 4 7 12 15 18

b) The conditions and effects of the options of acceptance or waiver 6. Sub-paragraph (f) 7. Sub-paragraph (g) 8. Sub-paragraph (h) 9. Sub-paragraph (i). 10. Sub-paragraph (j)

25 29 33 36 39 44

19

I. General This Article defines the scope of the succession law. Recital 42 clearly 1 indicates that “the law determined as the law applicable to the succession should govern the succession from its opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries as determined by that law.”

II. Paragraph 1 This provision once again establishes the principle of the unity of the 2 estate. The law of succession, whether determined on an objective basis (Art. 21) or by a professio juris (Art. 22), governs the whole succession. This means that it applies firstly to all of the assets making up the estate, movable or immovable, and secondly to all the questions of law in connection with the estate, from the beginning to the final distribution. Paul Lagarde

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Article 23 paras. 3–6

III. Paragraph 2 3 This paragraph lists all the questions governed by the succession law.

The list is not exhaustive and therefore leaves open for inclusion, other questions within the scope of the succession law. It is inspired in particular by the corresponding list included in Art. 7 of the 1989 Hague Succession Convention, but it is more complete and takes a clear position on questions such as the administration of the estate, left open by the 1989 Hague Succession Convention.

1. Sub-paragraph (a) 4 The normal reason for opening the succession process is obviously

death, which is a simple fact, the date of which is generally known. It is not, however, the only possible reason. When a person has disappeared in a disaster without the body being recovered, or when a person has not returned to his or her home and there is no news of them, there are provisions in the legislation of every State on disappearance, absence and presumed death, indicating whether the administration of the estate of this person is begun and on what date. Although these procedures themselves are excluded from the scope of the Regulation (Art. 1, § 2, c) these questions will have an effect on the opening of the succession and its date under the succession law. If the procedures applying to absence, disappearance or presumed death have been put into effect in another State, for example in the State of nationality of the person, their effect on the opening of the succession process and on its date will be under the succession law. 5 When more than one person dies in the same event, the time of opening

the succession process of each of them, in particular the order of the deaths, is determined by the succession law. The situation will be more complicated when the succession laws of these individuals differ. This question is governed by Art. 32. 6 The succession law is equally applicable to the question of determining

the place where the succession process is opened, which may be relevant when this law stipulates how the formalities in this place are carried out.

132

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Article 23 paras. 7–11

2. Sub-paragraph (b) The course of the succession process, whether testamentary or intestate, 7 is governed by the succession law. This sub-paragraph designates the “beneficiaries”, which term to be understood in a broad sense. According to Recital 47: “The law applicable to the succession should determine who the beneficiaries are in any given succession. Under most laws, the term ‘beneficiaries’ would cover heirs and legatees and persons entitled to a reserved share although, for instance, the legal position of legatees is not the same under all laws. Under some laws, the legatee may receive a direct share in the estate, whereas under others the legatee may acquire only a claim against the heirs.” Sub-paragraph b extends the scope of the succession law to the duties 8 imposed on the beneficiaries by the deceased, often matched by powers granted to them. In a slightly repetitive manner the text then specifies “the determination 9 of other rights to succession”, and particularly mentions the inheritance rights of the spouse or surviving partner. The text is silent on incidental questions of personal status arising in 10 relation to succession. The status of the persons and the family relations are otherwise excluded from the scope of the Regulation (Art. 1, § 2, a). If therefore the spouse of the deceased claims from the estate of the latter the share granted to him/her by the law of succession and the validity of the marriage is disputed, the validity of the marriage will be considered in accordance with the private international law rules of the State whose courts are involved. It will therefore be up to the law of this State to decide whether the prior question of the validity of the marriage must be the object of an autonomous connection, determined by the conflict rules of the forum, or a dependant one, i.e. fixed by the conflict rules of the State whose law governs the principal question of succession. The same question arises for a registered partnership but in this case 11 there is an additional difficulty in that it is not universally recognized and, even where it is, it creates a relationship between the parties that varies greatly from one State to another. If it is question for the succesPaul Lagarde

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Article 23 para. 12

sion law to determine the inheritance rights of the surviving partner, it may also be up to it to assess whether the partnership claimed by the survivor is sufficiently compatible with that of the succession law and can be substituted for it in this respect. The same issues also apply to other relationships, such as an adopted child and its parent. Example 1 The deceased, with a habitual residence in Germany, had entered into a registered partnership (PACS) in France in accordance with French law. The surviving partner claims his share of the inheritance as envisaged by German law applicable to succession. The competent German court, will decide whether the French PACS, in view of the fact that under French law, it does not grant any right of succession to the surviving partner, is equivalent to a German registered partnership and if not to reject the claim.1 Example 2 The deceased, having his/her habitual residence in France, had entered into a registered partnership (eingetragene Lebensgemeinschaft) in Germany in accordance with German law. The surviving partner claims his/her share of the estate. The competent French court will confirm that French law applicable to succession does not grant any right of succession to the surviving partner, but it will be forced to ask whether the German partnership concerned can be substituted by a marriage for the purposes of French succession law and therefore grant succession rights.2

3. Sub-paragraph (c) 12 This sub-paragraph, which includes the question of capacity to inherit

within the scope of the applicable law, has to be interpreted subject to the exclusion from the scope of the Regulation of the question of the legal capacity of individuals (Art. 1er, § 2, b) and to the exclusion of

1

2

In this sense, MünchKommBGB, 5. Aufl., 2010, Coester Art. 17b EGBGB RdNr 61. In this sense, MünchKommBGB, 5. Aufl., 2010, Coester Art. 17b EGBGB RdNr 60.

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succession from the field of the 1996 Hague Children Convention (Art. 4, f), already in force in 25 Member States of the EU. It is only aspects of legal capacity specifically concerning the right to 13 inherit that are a matter for the succession law. Conditions on the right to inherit, such as that of being born (or at least conceived) before the opening of the succession process, come into this category. The conditions of the capacity required in order to exercise the succession rights are equally a matter for the succession law. If, for example, the succession law makes the acceptance of an inheritance by a minor or by a legally incapacitated adult subject to an authorization by his or her legal representative or to judicial approval it will be binding, but the determination of the legal representative does not relate solely to the succession law. This is a general question of capacity, regulated not by the Regulation, but by the 1996 Hague Children Convention or the 2000 Hague International Protection of Adults Convention. Sub-paragraph c applies equally to the capacity of legal entities to in- 14 herit. Just as with natural persons, it is only the aspects of capacity specifically concerning the right to inherit that are within the scope of the succession law. Thus the question of knowing whether a future legal entity, in other words one not yet created at the time of death, may receive an inheritance, is regulated by the succession law. However, the question of whether a legal entity of this type, for example an association or a syndicate, may receive a gift is governed by the relevant law of the legal entity.

4. Sub-paragraph (d) This is based on Art. 7 § 2 b of the 1989 Hague Succession Convention. 15 It relates to people who have an entitlement under the succession proceedings in accordance with the succession law, but who lose this entitlement because of the wishes of the deceased (disinheritance) or by reason of their behaviour (disqualification by conduct). Disinheritance by the deceased is within the scope of the law on the 16 legal reserve, where there is one, and, like the reserve (sub-paragraph h), comes under the succession law.

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Article 23 paras. 17–21

17 As for disqualification by conduct, this is decreed by the succession law,

in varying fashions depending on the legislation, as a sanction for certain serious offences, for immoral conduct, for abandoning the deceased in need, or even for violence or deception having induced the future deceased to make or not to make a particular testamentary provision. The succession law will govern not only the grounds for disqualification by conduct, but also the conditions for its implementation (automatically as of right or as a result of legal action) and its effects, both with regard to the disqualification by conduct itself and as to the parties concerned.

5. Sub-paragraph (e) 18 Unlike the 1989 Hague Succession Convention, the Regulation brings

into the scope of application of the succession law questions linked to the administration and transfer of the estate (sub-paragraphs e, f and g). Sub-paragraph e deals more specifically with the administration of the estate, both the transfer of the assets and liabilities, and also the conditions and effects of acceptance or waiver by beneficiaries.

a) Transfer of assets, rights and obligations to the heirs or legatees 19 The succession law will set out whether the assets, rights and obliga-

tions of the inheritance pass as of right to the heirs and legatees, the conditions under which they may take possession of the assets, whether with or without particular formalities or a formal decision on transfer of ownership, or whether the estate is transferred to an executor or administrator confirmed or nominated by a court and having responsibility for settling the debts and liabilities. 20 In mentioning both the “heirs and, as the case may be, (the) legatees”,

the text takes into account the differences between the transmission of the assets to the former and to the latter; the legatees being included with the heirs in the case of certain rights but required to claim the delivery of their legacies from heirs or administrators under others (see Recital 47). 21 The succession law will also decide whether the transfer of the assets is

subject to the prior payment of debts and liabilities and who is to be 136

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Article 23 paras. 22–24

responsible for their payment. On the obligations of the heirs and legatees for these liabilities, especially when the liabilities exceed the assets, see infra, no. 34, under sub-para j). Example 3 The deceased, a United Kingdom citizen, had his or her habitual residence in Paris. He had chosen English law as the succession law and he leaves assets in the United Kingdom, in Germany and in France. The French court, competent by virtue of Art. 4, must apply English law, in accordance with which the assets making up the estate pass to a personal representative who, in English law, must be nominated or confirmed by the court and who is alone qualified to administer and wind up the estate. This example shows that the problems of jurisdiction and applicable 22 law are often closely interwoven. The French court has the jurisdiction to designate the personal representative envisaged by the succession law. If the United Kingdom one day agrees to be bound by the Regulation, it will be obliged to recognize the powers of the administrator designated by the French court in applying the English law of succession. In such circumstances, in order to avoid certain misunderstandings, it would be easier to transfer the jurisdiction to English courts, either by an agreement between the heirs (Art. 5), or by asking the French court to surrender its jurisdiction (Art. 6). The possibility of transferring jurisdiction in favour of the courts of a 23 non-Member State is not included in the Regulation. Consequently, the designation of the personal representative by the French court would unlikely be recognised in the United Kingdom by the holders of the assets of the estate nor by UK courts. The French judge designating an administrator of the estate could usefully invite this administrator to have his powers confirmed beforehand by a UK judge. The French judge will therefore himself have to designate an adminis- 24 trator of the estate in the UK, but he could usefully invite this administrator to have his powers confirmed beforehand by a UK judge.

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Article 23 paras. 25–30

b) The conditions and effects of the options of acceptance or waiver 25 The succession law determines the different options open to those en-

titled to inherit, for example the three options of simple acceptance, acceptance up to the value of the net assets/with the benefit of an inventory or renunciation, or only the two options of acceptance or renunciation. It is for this law to determine the cases in which an option could be considered to have been exercised impliedly, or even those in which a particular option is imposed on a party entitled to inherit (for example compelled acceptance of the inheritance in the case of concealment of an heir or a gift, see Arts. 778 and 800 French Civ. Code). 26 The succession law is also applicable to determine who may exercise a

particular option, for example the personal creditors of the heirs or the potential heirs of the heirs in case of inaction on their part. On the question of the law relating to the capacity to choose, see supra, under c). 27 The questions of delay and the effects of the options are fixed by the

succession law. This will determine whether the issue of the renouncing party will themselves be excluded from the inheritance by the act of renunciation or whether they will themselves inherit in lieu of the party renouncing. 28 The conditions as to the form of exercising the options are not regula-

ted by sub-paragraph 2 of Art. 23, but by Art. 28 (see infra).

6. Sub-paragraph (f) 29 This sub-paragraph deals with the powers of persons responsible for

administering and winding up the estate. The text gives as examples the power of sale of assets and the payment of creditors. 30 Sub-paragraph f is closely linked to the preceding one, because those

persons qualified to administer the estate are often those to whom the assets of the estate are transferred, because it is for the beneficiaries (heirs and legatees) in many of the civil law countries of civil law or for the personal representative in those with common law, since it is to them that the assets are transferred, at least until the estate is wound

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Article 23 paras. 31–35

up. It is thus logical to make both the transfer and the powers subject to the same law. It is however possible that the person dealing with the administration of 31 the estate is not a beneficiary. This may be the case for an executor of the Will who may be chosen by the deceased from outside the family circle in some countries. In this case, too, the powers of the executor will depend on the succession law. Even if these powers have been defined and specified by the testator, they will have to be compatible with and subject to the succession law. This unity of the law applicable to the transfer and to the powers of the 32 administrator, as envisaged by this sub-paragraph, is only practicable in cases where the succession law is compatible with that of the authority with jurisdiction to rule on the estate. When one or other of these laws requires the appointment of an administrator to whom it grants wider powers to administer and wind up the estate, a separation of the laws applicable to these two groups of questions is inevitable. This is the situation to which Art. 29 refers, to which, sub-paragraph f is subject. (see infra).

7. Sub-paragraph (g) Sub-paragraph e makes the transfer of debts and liabilities subject to the 33 succession law (see supra). Sub-paragraph g supplements this by making the responsibility for the liabilities of the estate subject to the same law. On the matter of liability for debts, the succession law specifies the per- 34 sons (heirs, legatees or administrator) to whom the creditors must turn in order to claim payment. It is this law that will specify whether the heirs and legatees are liable for debt ultra vires successionis, whether the creditors have to divide their claim between them or whether they can pursue one of them for everything, whether there is a time limit for the creditors to claim the debts of the estate and other such matters. On the subject of contribution, the succession law will indicate the 35 method of apportionment of liabilities between heirs and legatees as well as the recourse of the party or parties who have fully paid off the Paul Lagarde

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Article 23 paras. 36–38

creditor, against other co-heirs and especially the possible rights of subrogation of these recourse claims. It is in effect by virtue of the succession law that the co-heir solvens has had to pay the creditor on behalf of the others and it is this same law that similarly governs his rights of recourse against the other heirs who share liability for the debts of the estate. The solution is in harmony with Arts. 16 of the Rome I Regulation and 20 of the Rome II Regulation, applicable to contractual and non-contractual obligations respectively.

8. Sub-paragraph (h) 36 Sub-paragraph h is based on but supplements Art. 7 § 2 d of the 1989

Hague Succession Convention. It further develops the matters included in sub-paragraph b (see supra). When the succession law sets out that certain parties are entitled to succeed (descendants, ascendants or the surviving spouse) and cannot be deprived of all or a reserved part of their inheritance share by inter vivos gifts of the deceased, it must be applied to determine the heirs entitled to benefit from a reserved share, the amount of the reserved share of each one and similarly the amount of the freely disposable proportion. 37 The text extends the application of the succession law to the “other re-

strictions on the freedom to dispose of property upon death”. These restrictions may concern, for example, the family home, in order to support those currently living there, irrespective of their position with regard to a share of the inheritance. 38 In States that do not recognize the legal reserve itself, there are other

mechanisms with a comparable function. In common law countries, the competent authority often for fairness grants assets forming part of the estate to certain persons whom the law seeks to protect, usually “persons close to the deceased”, who may be persons entitled to succeed, to whom the deceased has not left anything or persons dependent on him. If the competent jurisdiction is that of a State other than the one whose law governs the succession, it will have to respond to the requests of “persons close to the deceased”, applying to claim the same rights as the courts of the State whose law is applicable, would grant.

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Article 23 paras. 39–42

9. Sub-paragraph (i). This is a literal reproduction of the text of Art. 7 § 2 c of the 1989 Hague 39 Succession Convention, with one slight difference. Restoring and accounting for gifts, makes it possible to return assets that have been the object of gifts made by the deceased, back to the estate to be divided and distributed. They necessarily proceed from the succession law, as they directly affect the calculation of the relevant shares to be inherited and in particular the calculation of the reserved share. In many countries with civil law, the heirs are required to bring back 40 into account to each other all gifts received from the deceased and the share to which each heir is entitled is then calculated from the total of existing assets of the estate together with the assets given inter vivos. The succession law governs all the questions connected with such bringing into account; the determination of which assets are to be brought into account, the ability of the deceased to specify that a favoured heir is omitted from this obligation to bring into account, the date the assets to be reported are to valued and the mode of bringing into account (in money or in kind). If it appears that the assets given to one of the heirs and included in the 41 amount of the calculation of the reserve are such that the existing assets of the estate are insufficient to provide the reserved portion of any others, the succession law will determine whether and how the heirs with legal reserves can ask for a reduction of the gifts that exceed the disposable portion, especially, in addition to the questions indicated above with regard to bringing into account, the persons able to require such a reduction, the time limits for this action and the order in which gifts should be reduced. If the gifts exceeding the disposable portion have been made to third 42 parties, it would be logical for the succession law similarly to determine whether and how these third parties can be subject to an action to obtain a reduction by way of clawback. However this does not emerge from the text, which only envisages the reduction to the extent to which it concerns the calculation of the shares of the different beneficiaries. Nevertheless, the enumeration of the questions governed by the succession law is not exhaustive and thus permits the inclusion of action to Paul Lagarde

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Article 23 paras. 43–45

obtain a reduction against a third party within the scope of the succession law, to the extent that it is within the overall scope of the Regulation. 43 Sub-paragraph i may have the effect of calling into question gifts made

prior to the death of the deceased, which at the time when they were made did not exceed the disposable portion as fixed by the law which would have governed the estate of the deceased if he had died on the day of the gift. It is in fact the effective succession law, as it is fixed on the date of death, which governs the reporting and reduction of gifts. It is different for Agreements as to Succession (see infra, ad Art. 24 and 25).

10. Sub-paragraph (j) 44 The distribution of the estate also depends on the succession law, like all

the administrative acts that have preceded it and that similarly proceed from the succession law. The Regulation does not impose any provision on the law applicable to the form of the distribution, which is different to what is envisaged for the form of Dispositions of Property upon Death (Art. 27) and for form for the exercise of the options as to acceptance or waiver (Art. 29). From this it may be inferred that the succession law is also applicable to the form of the distribution, but it would be reasonable to acknowledge the validity of a distribution under the forms of the law of the State in which it has been concluded, by analogy with the solution used for contracts by Art. 9 of the Rome I Regulation (which, it will be recalled, excludes succession from its scope of application). 45 The application of the succession law to the distribution has in certain

situations to be combined with the law applicable to the matrimonial property regime of the deceased. The death of a married person entails at the same time the dissolution of the matrimonial property regime and the opening of the succession process and different laws are applicable to these two exercises. In the event of the death of the surviving spouse before the distribution of the estate of the first to die, there are three laws that have to be reconciled: the law of the matrimonial property regime, the succession law applicable to the estate of the first spouse to die and to that of the spouse dying second, if this is different 142

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from that governing the first succession. In the order of dealing with these three exercises, it is appropriate first to apply the law of the matrimonial property regime to determine the share allotted to each of the spouses as such. Then the succession law for the first deceased spouse should apply to his or her own assets and those devolving on him or her under the matrimonial property regime. Finally the succession law of the spouse dying second, for his/her share of the estate consisting among other things of the assets transferred under the dissolution of the matrimonial property regime and those acquired from the estate of the first deceased spouse. Pending the adoption of a Regulation of the law applicable to the ma- 46 trimonial property regime, the law applicable to it is determined by each Member State in accordance with its exisiting national private international law rules and this lack of uniformity has repercussions for the distribution of the two estates for succession purposes. Example 4 Two spouses of French nationality, married without a contract of marriage, have settled in Vienna after marrying, and the husband has died there fifteen years later. After his death, the widow has returned to Paris where she has died a few years later. The law applicable to the matrimonial property regime is, according to the Austrian conflict of laws rule, French law as the national common law (§ 19 IPRG), of which the legal regime is that of the community of acquisitions. It is thus this law that will apply if an Austrian court has jurisdiction, as will probably be the case if the liquidation of the regime is initiated soon after the death of the husband. On the other hand, according to the French private international law rules, the law applicable to the matrimonial property regime is Austrian law, as the law of the first residence of the couple, and the legal regime in accordance with this law on death is that of separation of assets. This will be the solution that will be applied if France has jurisdiction, which will be the case if children of the couple wait until after the death of their mother before dealing with the distribution of the estates of their parents.

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Article 24 paras. 1, 2

Article 24: Dispositions of property upon death other than agreements as to succession 1. A Disposition of Property upon Death other than an Agreement as to Succession shall be governed, as regards its admissibility and substantive validity, by the law which, under this Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made. 2. Notwithstanding paragraph 1, a person may choose as the law to govern his Disposition of Property upon Death, as regards its admissibility and substantive validity, the law which that person could have chosen in accordance with Article 22 on the conditions set out therein. 3. Paragraph 1 shall apply, as appropriate, to the modification or revocation of a Disposition of Property upon Death other than an Agreement as to Succession. In the event of a choice of law in accordance with paragraph 2, the modification or revocation shall be governed by the chosen law.

I. General 1 This Article does not define its purpose, other than negatively. The Dis-

positions of Property upon Death other than Agreements as to Succession are principally Wills. Under Art. 3 d of the Regulation, a Disposition of Property upon Death means “a will, a joint will or an Agreement as to Succession”. Since an Agreement as to Succession is subject to the subsequent Articles, Art. 24 seems to confine itself to testamentary dispositions. 2 The Regulation provides separate rules for Dispositions of Property

upon Death other than Agreements as to Succession on the one hand and Agreements as to Succession on the other (Arts. 24 and 25). The first category particularly relate to Wills. The Regulation considers “an agreement resulting from mutual wills” as an Agreement as to Succession (Art. 3.1.b) but not a joint Will, if it is simply a Will prepared by two or more persons in the same document. While a joint Will may often also be a mutual Will at the same time, this is not always the case. This definition of an Agreement as to Succession will only include a joint will to the extent that it contains an agreement as defined in Art. 3.1.b. In such a case it will come under Art. 25. 144

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II. Paragraph 1 This paragraph determines which law is applicable to the question of 3 “admissibility and substantive validity”. A Disposition of Property upon Death is admissible within the meaning of this paragraph if the applicable law considers it capable of recognition and able to produce its material effect, subject to its substantive validity. Thus, the Fideicommissum, permitted in certain legal systems, is on the other hand prohibited in others and thus not admissible in the sense of the Regulation. A Disposition of Property upon Death, admissible according to the applicable law, is substantively valid if it satisfies the conditions laid down by this law in particular concerning the points enumerated in Art. 26, especially intention, capacity etc (see infra). The law applicable to admissibility and substantive validity is the suc- 4 cession law of the person making the Disposition, anticipated on the date of the Disposition and not the eventual effective succession law, determined on the date of death. This law is thus, in conformity with Arts. 21 and 22, the law of habitual residence of the person making the Disposition on the date of the Disposition (except for the unlikely intervention of the exception clause) or the national law of this person if he had chosen this on the date of the Disposition. The application of the succession law anticipated on the date of making 5 the Disposition satisfies the requirement for legal certainty for persons wishing to plan their estate in advance (Recital 48). It is necessary to ensure that the disposition, valid under the law at that time applicable, is not questioned after the death of the person making the Disposition by the application of a law not foreseeable on the date of the Disposition. The Disposition, the admissibility and substantive validity of which are 6 thus protected, could nevertheless be subject to the application of the effective material succession law (supra, ad Art. 23, § 2, i).

III. Paragraph 2 Unlike Art. 22, in accordance with which the choice by the future de- 7 ceased of his national law is valid for the entire estate (supra ad Art. 22, Paul Lagarde

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Article 24 paras. 8–11

no. 6), para. 2 of Art. 24 authorizes a choice of law specifically for the admissibility and substantive validity of the Disposition of Property upon Death. As a result, if this choice is made, these aspects of the Disposition will be governed by the national law of the person making the disposition on the day of the Disposition, but the estate in its entirety will be governed by a different applicable law, which will most often be that of the State of final habitual residence of the person making the Disposition, but which could also be that of a State of which the person making the disposition has finally acquired citizenship and which he chooses in compliance with Art. 22. 8 If the person making the Disposition had more than one nationality on

the date of making the Disposition, the text does not prevent him from choosing one for the admissibility and substantive validity of the Disposition and the other for the applicable law for the estate (cf. Art. 22 § 1 sub-para 2 and supra, ad Art. 22, no. 8). 9 The choice of a law for the Disposition must comply with the condi-

tions laid down in Art. 22, particularly for the expression and form of this choice (supra, ad. Art. 22 § 2 and 3).

IV. Paragraph 3 10 The first phrase of the paragraph refers back to para. 1 for the modifi-

cation or the revocation of the Disposition of Property upon Ddeath. These will therefore be subject to the law that would have governed the estate of the person making the Disposition if he had died on the date of the modification or revocation. More than one law may therefore be successively applied to the Disposition of Property upon Death: the law which would have governed the succession on the date of the Disposition with regard to its admissibility and substantive validity, those which would have governed the estate on the day of successive modifications or the revocation of the Disposition, finally the effective succession law for bringing into account or reduction of particular legacies. 11 The second phrase envisages the possibility of the person making the

Disposition having chosen, for the Disposition and in compliance with Para. 2, the law of the State of his nationality or of a State of which he had been a national. In a similar situation, the modification or revoca146

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Article 24 para. 12; Article 25

tion are governed by this same law and not by that which would have governed the estate in the event of the death of the person making the Disposition on the date of the modification or revocation. The modification or revocation envisaged by this paragraph are those 12 that have been made, explicitly or tacitly (for example the destruction of the Will), by the person making the Disposition. By contrast, ex lege revocation, for example according to the laws of certain States, the automatic revocation of the Will in the event of subsequent marriage or divorce, is not included in this reference.

Article 25: Agreements as to succession 1. An Agreement as to Succession regarding the succession of one person shall be governed, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded. 2. An Agreement as to Succession regarding the succession of several persons shall be admissible only if it is admissible under all the laws which, under this Regulation, would have governed the succession of all the persons involved if they had died on the day on which the agreement was concluded. An Agreement as to Succession which is admissible pursuant to the first subparagraph shall be governed, as regards its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law, from among those referred to in the first subparagraph, with which it has the closest connection. 3. Notwithstanding paragraphs 1 and 2, the parties may choose as the law to govern their Agreement as to Succession, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 on the conditions set out therein.

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Article 25 paras. 1–4

I. General 1 Following the 1989 Hague Succession Convention (Arts. 8 and 12) and

taking the same line, the Regulation determines in this Art. 25 the law applicable to Agreements as to Succession. In accordance with Art. 3 b, which repeats the definition given in Art. 8 of the 1989 Hague Succession Convention, an Agreement as to Succession is “an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement”. This very broad definition permits the inclusion in this concept, not only of an actual agreement, concluded in the form of a contract, such as the Erbvertrag of German law, but also mutual Wills and some joint Wills, donations conditional upon death, shared gifts, anticipated renunciations as reductions, proprietary estoppels, in fact all the acts creating obligations to be met by the estate of the future deceased. 2 The Regulation does not impose any obligation at all on those States

that do not recognize this institution to introduce it into their legislation, but only to recognize it when it is valid in accordance with the applicable law. 3 Art. 25 makes a distinction between Agreements as to Succession con-

cerning one person and those that concern more than one person.

II. Paragraph 1 4 When the Agreement concerns the estate of one person, the private in-

ternational law rule is symmetrical with that adopted by Art. 24 for other Dispositions of Property upon Death and designates, as that one does, the succession law anticipated on the date the agreement is made. The object of this rule is, as in Art. 24, the admissibility and the substantive validity of the Agreement. The text subjects the binding effects of the Agreement between the parties, including the conditions for its dissolution, to the same law even if, on the date on which these effects or the dissolution were made, the connecting factor for applicable law for the estate has changed. In this, it differs from Art. 24, para. 3, concerning the modification or the revocation of another Disposition of

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Article 25 paras. 5, 6

Property upon Death. This is justified by the contractual nature of the agreement.

III. Paragraph 2 The private international law rule is a little more complex when the 5 Agreement concerns the estate of more than one person. Para. 2 separates admissibility on the one hand from substantive validity and the binding effects between the parties, including dissolution on the other. The Agreement is only admissible if its admissibility is accepted by the succession law anticipated on the date of the Agreement by all the persons concerned. In this case it is necessary to determine, among these laws, which one will govern the validity and the binding effects of the Agreement, including its dissolution. The text specifies that law is the one with which the Agreement has the closest connection. Example 1 Agreement as to Succession between a husband of German nationality and habitually resident in Germany and his wife, of French nationality and habitually resident in France. The Agreement is inadmissible, because it is not valid under French law, which is the anticipated succession law of the wife Example 2 Agreement as to Succession between a German husband habitually resident in Germany and his Swiss wife habitually resident in Switzerland. The agreement is admissible, as it is valid under German and Swiss law. The conditions of substantive validity and the binding effects between the parties will be governed by whichever one of the two laws the agreement shows the closest connection. This could be German law if the spouses have had their last habitual joint residence in Germany or if the greater part of the mutual assets of their two estates are situated there.

IV. Paragraph 3 Just as Art. 22 permits a person to choose his/her national law as the 6 succession law, Art. 25 § 3 permits a choice of law by the parties to an Agreement. They may choose the law that one of the persons whose Paul Lagarde

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estate is governed by the agreement would have been able to choose by virtue of and under the conditions of Art. 22, i.e. the national law of one of the persons at the time of the agreement or at the time of death of that person (supra, ad Art. 22 § 1). The chosen law governs the admissibility, the conditions of validity and the effects of the Agreement. 7 The parties thus have the possibility either of validating an Agreement

whose admissibility is not accepted by all the laws concerned or of avoiding the uncertainty resulting from the application of the law of the closest connections, as is foreseen in para. 2. In Example 1 above, the spouses who are parties to the agreement, if they are well advised, will choose German law, the national law of the husband, to govern their agreement. In Example 2, it will be in the interest of the parties to choose German or Swiss law to avoid all uncertainty as to the law applicable to the conditions and to the effects. 8 Nevertheless, even in a case where the laws of the habitual residences of

all the parties concerned accept the admissibility of the Agreement, the text, unlike the 1989 Hague Succession Convention (Art. 11), does not allow the choice of the law, to govern the conditions and the effects of the agreement, of the State in which one or other of them has his or her habitual residence. Example 3 Agreement as to Succession between a French husband habitually resident in Germany and his Italian wife habitually resident in Switzerland. This agreement is admissible, being allowed by German and Swiss law. The parties may not choose one of these two laws, neither of them being the national law of one of them. It will be up to the eventual jurisdiction to determine with which law the agreement shows the closest connections.

Article 26: Substantive validity of dispositions of property upon death 1. For the purposes of Articles 24 and 25 the following elements shall pertain to substantive validity:

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Article 26 paras. 1–3

(a) the capacity of the person making the Disposition of Property upon Death to make such a disposition; (b) the particular causes which bar the person making the disposition from disposing in favour of certain persons or which bar a person from receiving succession property from the person making the disposition; (c) the admissibility of representation for the purposes of making a Disposition of Property upon Death; (d) the interpretation of the disposition; (e) fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition. 2. Where a person has the capacity to make a Disposition of Property upon Death under the law applicable pursuant to Article 24 or Article 25, a subsequent change of the law applicable shall not affect his capacity to modify or revoke such a disposition. I. General II. Paragraph 1. Sub-paragraph (a) 2. Sub-paragraph (b)

1 1 2 4

3. Sub-paragraph (c) 4. Sub-paragraph (d) 5. Sub-paragraph (e) III. Paragraph 2

5 6 7 9

I. General This Article explains what is meant by the “substantive validity” of a 1 Disposition of Property upon Death, including an Agreement as to Succession, in the sense of Arts. 24 and 25. The enumeration given is not of an exhaustive nature.

II. Paragraph 1 1. Sub-paragraph (a) Parallel to the capacity to inherit which Art. 23, § 2 c, includes in the 2 scope of the law of succession, Art. 26 § 1 has made the capacity to make a Disposition a relevant element of the substantive validity and subject as such to the law indicated by Articles 24 and 25. As with the capacity to inherit (supra, ad Art. 23, § 2, c) it is only some 3 aspects of the capacity to dispose that specifically concern inheritance rights that come under the succession law. If, for example, the law govPaul Lagarde

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Article 26 paras. 4, 5

erning the substantive validity of the Disposition bars a person who is of mature age but under a guardianship or deputyship from making a Will, it will be barred, even if the personal law of this person allows it. The converse is equally true, in that in the interest of legal certainty such a person risks being deprived of the protection of his personal law. If the law governing the Disposition makes it subject it to an authorization by the legal representative of the party disposing, this will be followed, but the determination of the identity of this legal representative falls outside this law and comes under the law applicable to capacity. Example 1 The deceased, of French nationality, died in France where he had his habitual residence. At the age of 17 years, when he was habitually residing in Germany, he had drawn up a Will. The capacity to make a Will, an element of the substantive validity of the Will, is governed by German law, the law which would have governed the succession if the testator had died on the date of drawing up the Will. The testator had the capacity to make a Will (§ 2229 BGB), whereas under French law, he would only have been able to dispose by Will of a half of his assets (Art. 904 c, civ, français).

2. Sub-paragraph (b) 4 This sub-paragraph is directed at the incapacity to dispose or to receive

based on the fear of an abuse of influence (limitations on a doctor, or hospital staff, or a minister of religion, or a guardian etc), including the measures taken in certain laws to curb or prevent fraud in an attempt to get round these limitations (for example the presumption of a misrepresentation of identity).

3. Sub-paragraph (c) 5 This sub-paragraph focuses on the question of the validity of a Disposi-

tion of Property upon Death consented to by a representative, whether it concerns the consent of a legal representative of a legally incapacitated person (minor, vulnerable adult) or the proxy of a person with full legal capacity.

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4. Sub-paragraph (d) The interpretation of a Disposition of Property upon Death is most of- 6 ten a question of fact. It may however be the object of a legal rule (for example the interpretation potius ut valeat quam ut pereat, restrictive interpretation of the Disposition) and to this extent it comes under the law governing the substantive validity of the Disposition.

5. Sub-paragraph (e) All the questions relating to the consent or intention of the person mak- 7 ing the Disposition, whether it concerns consent obtained by an irregularity (error, force, deception, undue influence) and deserving remedy or on the other hand a fraudulent intention deserving of a sanction, are placed by this sub-paragraph in the category “substantive validity” and are subject to the law indicated in Arts. 24 and 25. The same applies in the absence of consent due to disability or old age, 8 when the vulnerable person making the Disposition has not been made the object of a measure of protection.

III. Paragraph 2 This paragraph deals with the effect of a change in the law applicable to 9 the capacity to make a Disposition on the capacity of the person making the Disposition to modify or revoke a Disposition made at an earlier time. The change in the applicable law can be understood in two ways. It may 10 in the first place result from a change in the connecting factor between the date of the Disposition and that of its later modification or revocation (a mobile conflict). Such a change may be produced if the person (or persons) making the Disposition chooses during this period, in accordance with Arts. 24 § 2 and 25 § 2, which refer back to Art. 22, a law other than that which governed it before. This mobile conflict is governed in a manner favourable to the preser- 11 vation of the capacity acquired in accordance with the law applicable on

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the date of the Disposition.1 The person making the Disposition who, under the law then applicable, had the capacity to execute the Disposition, will retain this capacity subsequently to modify or revoke it, even if the law applicable at this later time does not recognize such capacity. However, he will not have the capacity to make a new Disposition, since this will depend on the law applicable on the date of this new Disposition. 12 The change in the law applicable to capacity could also result, without a

change in the connecting factor, from an internal modification of the material law governing the Disposition. The solution is more dubious than the preceding one, since the effects of a material change in the competent law would normally be dealt with by the internal transitional provisions of this law. Nevertheless, an incursion into the transitional provisions of the applicable law could be justified by the wish to be assured of the legal certainty of a Disposition valid in accordance with the provision that regulated it on the date when it was made.

Article 27: Formal validity of dispositions of property upon death made in writing 1. A Disposition of Property upon Death made in writing shall be valid as regards form if its form complies with the law: (a) of the State in which the disposition was made or the Agreement as to Succession was concluded; (b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an Agreement as to Succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death; (c) of a State in which the testator or at least one of the persons whose succession is concerned by an Agreement as to Succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death; (d) of the State in which the testator or at least one of the persons whose succession is concerned by an Agreement as to Succession had his ha-

1

Compare Art. 7 § 2 EGBGB.

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Article 27 para. 1

bitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or (e) in so far as immovable property is concerned, of the State in which that property is located. The determination of the question whether or not the testator or any person whose succession is concerned by the Agreement as to Succession had his domicile in a particular State shall be governed by the law of that State. 2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the Disposition of Property upon Death which has been modified or revoked was valid. 3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an Agreement as to Succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a Disposition of Property upon Death. I. General II. Paragraph 1 1. Sub-paragraph (a) 2. Sub-paragraphs (b), (c) and (d)

1 2 3

3. Sub-paragraph (e) III. Paragraph 2 IV. Paragraph 3

7 8 9

4

I. General The private international law rules with regard to the form of testamen- 1 tary dispositions are the subject of the 1961 Hague Wills Convention, in force in 41 States, of which 16 are in the European Union and very generous in favour of the formal validity of a Will. Rather than invite those Member States who have not yet done do to ratify this Convention, the Regulation has preferred in Art. 27 to take up the substance of this Convention, extending its effects regarding Wills to Agreements as to Succession. The 1961 Hague Wills Convention overrides the Regulation in the Member States that are contracting parties to it, with regard to the question of the formal validity of Wills and joint Wills (Art. 75 § 1, subpara 2). Paul Lagarde

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Article 27 paras. 2–6

II. Paragraph 1 2 This paragraph applies to all Dispositions of Property upon Death

(Wills and Agreements as to Succession), from the time that they are established in writing. Unlike the Convention (Art. 10 providing for a reservation on this subject), Article 27 does not apply to testamentary dispositions made orally. For a Disposition of Property upon Death to be formally valid, it is enough for it to comply with one of the laws listed in this paragraph.

1. Sub-paragraph (a) 3 It is firstly the law of the State in which the Disposition has been made

or the Agreement as to Succession concluded. In order to be applicable this rule assumes that the parties to the agreement have been present at the time of it being concluded, which is most often the case (see for example § 2276 BGB, Art. 512 c. civ. suisse).

2. Sub-paragraphs (b), (c) and (d) 4 Then follow the laws of States of which the testator or at least one of the

persons with whom the succession is concerned by the Agreement as to Succession was a national, either at the time when the Disposition was made or at the time of his death or in which one of these persons had at one or other of these times, their domicile or habitual residence. 5 The wording of the text implies that in the event of one of these persons

having more than one nationality, the disposition is formally valid if it complies with the law of the State of one of these nationalities, irrespective of any condition of effectiveness. 6 As for domicile – the determination of whether it is situated in a parti-

cular State – under the final sub-paragraph of paragraph 2, it is the law of that State that determines the question.1 This provision avoids a positive conflict of domiciles and ensures the consistency of any solution, but does allow the risk of a negative conflict to arise. 1

Cf. Art. 1, final sub-paragraph of the 1961 Hague Wills Convention.

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Article 27 paras. 7, 8

Example 1 The testator, a native of Portugal, has lived for many years in France and only returned to Portugal on reaching retirement age. He then writes a Will in holographic form, which is valid in French law but void in Portuguese. French law applies if, in accordance with French law, the testator had retained his domicile in France and this is sufficient for the Will to be valid, without any consideration of Portuguese law. If under French law the individual has lost his domicile in France and if in accordance with Portuguese law he had not acquired a new domicile in Portugal, the criterion of domicile cannot be used to make the Disposition of Property upon Death formally valid.

3. Sub-paragraph (e) Finally, as regards immovable property, the Disposition of Property 7 upon Death is also valid if it complies with the law of the State in which the property is situated. This Disposition is convenient for a Will concerning only the immovables situated in a certain country. If the Will concerns the whole estate, it may turn out to be valid for certain immovables but void for the remainder of the estate and this partial validity, will prevent the administration of the estate desired by the testator. Example 2 The testator, a native of Portugal, has lived for many years in France but no longer has a domicile there and he has returned to Portugal on reaching retirement age. He has an apartment in France and assets in Portugal. In Portugal he writes a holographic Will in which he leaves his assets in Portugal to his daughter living in Portugal and the French immovables to his son who works in France. The Will is valid for the French apartment but it is void with regard to the assets located in Portugal.

III. Paragraph 2 This paragraph, the equivalent of which is to be found in Art. 2 of the 8 1961 Hague Wills Convention, extends the rules set out in paragraph 1 to the modification and revocation of an earlier Disposition. If the connecting factor relating to the form of the Will has changed since the date when the Disposition was made, the text validates the modification or Paul Lagarde

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Article 27 paras. 9–11

the revocation in a form the same as that which was originally used for the validation of the original Disposition. Example 3 A Portuguese, settled in France, has made a Will in holographic form in compliance with French law. He returns to Portugal at retirement age. He may modify or revoke this holographic Will in holographic form, although on this date the connection with France has disappeared and it is no longer possible for the testator to make a valid new holographic Will.

IV. Paragraph 3 9 Based on Art. 5 of the 1961 Hague Wills Convention this paragraph

gives some indications of the formal and substantive nature of certain conditions for the validity of Dispositions of Property upon Death. Legal limitations to the permitted forms for Dispositions relating to the age, health and other personal conditions of the testator are thus qualified as formal rules. This is also the case with any rule imposing on a minor the requirement for a notarial form of Will (§ 2233 BGB) or conversely disallowing this form in case of deafness of the testator. 10 Similarly classified as matters of form are any rules relating to the qua-

lifications that the requisite witnesses have to satisfy in order for a Disposition of Property upon Ddeath to be valid: for example conditions of nationality, age, of non-kinship with the persons benefitting, of not belonging to the notary’s office etc. 11 The Article does not give any indication of the status of the prohibition

against joint Wills in certain laws. Article 4 of the 1961 Hague Wills Convention declares that the Convention applies to the form of a joint Will, but does not prejudge the status of the rules concerning it. Art. 3 § 1 b of the Regulation includes in the concept of Agreement as to Succession an agreement resulting from mutual Wills and that such can be the case with a joint Will, it is logical to submit the “admissibility” of such a Will to the law designated in Article 25 (see supra). If this admissibility is accepted by this law, the validity of the form of the joint Will depend on the law applicable to the form in accordance with Article 27. 158

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Article 28: Validity as to form of a declaration concerning acceptance or waiver A declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of: (a) the law applicable to the succession pursuant to Article 21 or Article 22; or (b) the law of the State in which the person making the declaration has his habitual residence.

This Article envisages the situation where, either because of the objec- 1 tive connecting factor, or on account of a professio juris, the estate is subject to the law of a State other than that of the habitual residence of the heirs and legatees, or of some of them. Whereas the conditions and the effects of the options available are governed by the law of succession (Art. 23 § 2 c), validity as to the form of the option is governed, either by the law of succession or by the law of the habitual residence of the person making the option. The option intended by the text may equally well be the acceptance of 2 the succession, of a legacy or of the reserved share or the waiving of these or the acceptance up to a limit of the net assets. Art. 28, however, only applies to the option chosen in the form of a declaration. The question of deciding whether the behaviour of the person entitled to inherit amounts to a tacit acceptance, for example, is not governed by the local law, but by the applicable succession law. This preference favouring the formal validity of the option is intended 3 to facilitate the exercise of this option by the heirs or legatees by allowing them to respect the forms of the local law. It is the counterpart of Art. 13 for jurisdiction. If the succession law authorises the heir or the legatee to make such a declaration before a court, Art. 13 permits them to make their declaration before a court of the State in which they have their habitual residence, as far as, under the law of this State, the declaration may be made before a court. The text of the Regulation does not deal with the situation in which the 4 Paul Lagarde

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Article 29

succession law requires that the declaration of choice is made before a court but where the law of the State of habitual residence of the person inheriting merely requires a private document. The solution depends on the formal classification of the requirement by the succession law for a declaration before a court. As regards the options limiting liability for the debts of the deceased (waiver or acceptance up to the net assets) Recital 33 comes down in favour of the succession law: “It should not be possible for a person who wishes to limit his liability for the debts under the succession to do so by a mere declaration to that effect before the courts or other competent authorities of the Member State of his habitual residence where the law applicable to the succession requires him to initiate specific legal proceedings, for instance inventory proceedings, before the competent court. A declaration made in such circumstances by a person in the Member State of his habitual residence in the form provided for by the law of that Member State should therefore not be formally valid for the purposes of this Regulation.”

Article 29: Special rules on the appointment and powers of an administrator of the estate in certain situations 1. Where the appointment of an administrator is mandatory or mandatory upon request under the law of the Member State whose courts have jurisdiction to rule on the succession pursuant to this Regulation and the law applicable to the succession is a foreign law, the courts of that Member State may, when referred to, appoint one or more administrators of the estate under their own law, subject to the conditions laid down in this Article. The administrator(s) appointed pursuant to this paragraph shall be the person(s) entitled to execute the will of the deceased and/or to administer the estate under the law applicable to the succession. Where that law does not provide for the administration of the estate by a person who is not a beneficiary, the courts of the Member State in which the administrator is to be appointed may appoint a third-party administrator under their own law if that law so requires and there is a serious conflict of interests between the beneficiaries or between the beneficiaries and the creditors or other persons having guaranteed the debts of the deceased, a disagreement amongst the beneficiaries on the administration of the estate or a complex estate to administer due to the nature of the assets. 160

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Article 29 para. 1

The administrator(s) appointed pursuant to this paragraph shall be the only person(s) entitled to exercise the powers referred to in paragraph 2 or 3. 2. The person(s) appointed as administrator(s) pursuant to paragraph 1 shall exercise the powers to administer the estate which he or they may exercise under the law applicable to the succession. The appointing court may, in its decision, lay down specific conditions for the exercise of such powers in accordance with the law applicable to the succession. Where the law applicable to the succession does not provide for sufficient powers to preserve the assets of the estate or to protect the rights of the creditors or of other persons having guaranteed the debts of the deceased, the appointing court may decide to allow the administrator(s) to exercise, on a residual basis, the powers provided for to that end by its own law and may, in its decision, lay down specific conditions for the exercise of such powers in accordance with that law. When exercising such residual powers, however, the administrator(s) shall respect the law applicable to the succession as regards the transfer of ownership of succession property, liability for the debts of the estate, the rights of the beneficiaries, including, where applicable, the right to accept or to waive the succession, and, where applicable, the powers of the executor of the will of the deceased. 3. Notwithstanding paragraph 2, the court appointing one or more administrators pursuant to paragraph 1 may, by way of exception, where the law applicable to the succession is the law of a third State, decide to vest in those administrators all the powers of administration provided for by the law of the Member State in which they are appointed. When exercising such powers, however, the administrators shall respect, in particular, the determination of the beneficiaries and their succession rights, including their rights to a reserved share or claim against the estate or the heirs under the law applicable to the succession.

I. General This Article presupposes a separation, in a particular case, between the 1 jurisdiction and the applicable law. The connection in principle of the one or the other to the final habitual residence renders this eventuality rather rare. It will arise chiefly when the deceased has chosen the law of the State of which he is a national to govern the succession (Art. 22),

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Article 29 paras. 2–6

without the parties having agreed to give jurisdiction to the courts of the same State (Art. 5). 2 As has been indicated under Art. 23 § 2 f, it may happen that the suc-

cession law, the law of the court with jurisdiction to rule on the succession and, if applicable, that of the State where the assets are situated, disagree on the administration of the estate, one bestowing power to administer and distribute the estate on the beneficiaries of the estate, the other giving the power to an executor or administrator appointed or confirmed by a court. This primarily concerns the laws of the United Kingdom and of Ireland, from the perspective of the position if either of these two States had exercised their right to opt-in to the Regulation. 3 This disagreement between the relevant laws may arise in three types of

cases. 4 Firstly, the law of the court with jurisdiction and the succession law may

grant powers of administration to a beneficiary of the estate. These powers must then be recognized in the other Member States where the assets of the estate are situated, including in those whose law confers these powers on an executor or an administrator. This is the situation provided for in Art. 23 § 2 f. If the assets of the estate are situated in a third State that does not recognize the powers of the beneficiary, the Regulation does not provide a solution. Unlike the draft Regulation (Art. 21 § 2), the final text does not in effect leave any room for the law of the State where the assets are situated. 5 Secondly, the law of the court with jurisdiction may entrust the admin-

istration to a beneficiary of the estate, but the succession law requires the appointment of an executor or an administrator. In this case, the competent court will proceed to make this appointment and the powers thus conferred will be recognized in the other Member States. See supra, example 3 under Art. 23 § 2 e. 6 Art. 29, whose application is reserved by Art. 23 § 2 f, foresees a third

case, that where the law of the court with jurisdiction (assumed to be the law of a Member State), but not the succession law, makes the appointment of an executor or administrator obligatory, or obligatory on request. It sets out the cases in which such an executor or administrator 162

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Article 29 paras. 7–10

may be appointed (§ 1) and the powers that will be conferred (§§ 2 and 3).

II. Paragraph 1 In the situation considered, the court with jurisdiction to rule on the 7 succession may, if referred to, appoint in accordance with its own law, one or more executors or administrators of the estate. This is merely an option and it may be assumed the court will only do so if assets of the estate are situated in that State. The persons thus indicated will be empowered to administer the estate under the succession law. To avoid a conflict with the succession law, Recital 43 invites the court to appoint as administrator the person or persons entitled to administer the estate under the succession law. It is possible, however, that the succession law, whether that of another 8 Member State or that of a third State, does not permit the estate to be administered by anyone other than a beneficiary. A conflict may then arise between the beneficiaries under the succession law and the administrator designated by the court with jurisdiction. To avoid this, the text makes the appointment of a third-party administrator by the competent court subject to strict conditions. Firstly, it is necessary for it be a prerequisite under the law of the State with jurisdiction. It is also necessary for the appointment to be required either because of a “serious” conflict of interests between the beneficiaries or between them and creditors or guarantors of debts of the deceased, or because of a disagreement between the beneficiaries over the administration of the estate or because of the complex nature of the assets. In all these cases, the administrators thus appointed replace the benefi- 9 ciaries and are the only parties entitled to exercise the powers of administering the estate.

III. Paragraph 2 This paragraph principally submits the exercise of the powers of admin- 10 istration of the estate by the persons thus designated to the succession law. For example, if the succession law is French law, the administrator

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designated by the court with jurisdiction will exercise the powers that French law bestows on the heir. 11 However, just as paragraph 1 envisages the case where the succession

law does not permit the estate to be administered by anyone other than a beneficiary, so paragraph 2 envisages a situation in which this same succession law does not provide for powers sufficient to preserve the assets of the estate or protect the rights of the creditors or guarantors of debts. The court with jurisdiction may then decide, by special dispensation, to allow the administrators it appoints to exercise “on a residual basis” the powers provided for by its own law and to regulate those powersm in accordance with the same law. According to Recital 44, “such residual powers could include, for instance, establishing a list of the assets of the estate and the debts under the succession, informing creditors of the opening of the succession and inviting them to make their claims known, and taking any provisional, including protective, measures intended to preserve the assets of the estate”. 12 In the exercise of these residual powers, the administrators should re-

spect the succession law with regard to the transfer of ownership of an asset of the estate, including, as specified in Recital 44, “any transaction entered into by the beneficiaries prior to the appointment of the administrator, liability for the debts under the succession and the rights of the beneficiaries, including, where applicable, the right to accept or to waive the succession”, and also, where applicable, the powers of the testamentary executor. According to the same Recital 44, “such acts could, for instance, only entail the alienation of assets or the payment of debts where this would be allowed under the law applicable to the succession. Where under the law applicable to the succession, the appointment of a third-party administrator changes the liability of the heirs, such a change of liability should be respected”.

IV. Paragraph 3 13 This text grants the court a greater freedom in adjusting the powers of

the administrator/s when the succession law is that of a third State. In such cases the court may grant these administrators all the powers of administration provided for by its own law.

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Article 29 para. 14; Article 30 paras. 1–3

Of the succession law they only have to observe the “the determination 14 of the beneficiaries and their succession rights, including their right to a reserved share”, which concern the heirs, or the rights of the beneficiaries “with regard to the succession or the heirs”, which concern in particular the rights of the legatees and those of the persons who, without being heirs or legatees, have certain rights to assert against the administrators or the estate, for example that of a surviving partner to occupy the family home.

Article 30: Special rules imposing restrictions concerning or affecting the succession in respect of certain assets Where the law of the State in which certain immovable property, certain enterprises or other special categories of assets are located contains special rules which, for economic, family or social considerations, impose restrictions concerning or affecting the succession in respect of those assets, those special rules shall apply to the succession in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession.

This Article, inspired by Art. 15 of the 1989 Hague Succession Conven- 1 tion, introduces an exception to the principle of the unity of the succession, in giving the law of the State where the assets are situated precedence over the succession law, in certain cases. The exception concerns “certain immovable property, certain enterpri- 2 ses or other special categories of assets”, whose specific nature is connected with “economic, family or social considerations”. What is intended here is agricultural enterprises, whether the person running them is or is not the owner of the land concerned, or also economic or commercial businesses if the local law imposes particular rules of devolution or prohibits a division that would break up these businesses. In accordance with the Waters Report (para. 112), special categories of 3 assets “would refer for example to historic Articles, such as sculptures, paintings and jewellery within the family which are required by the original act of disposition to pass from generation to generation down the lineal line”. Paul Lagarde

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Article 30 paras. 4, 5; Article 31 paras. 1, 2

4 The special dispositions of the lex situs which Art. 30 has in mind only

prevail over the succession law if, under the lex situs, they are applicable whatever the law applicable to the succession, thus if they constitute overriding mandatory provisions in the sense of Art. 9 § 1 of the Rome I Regulation.1 5 The Recital 54 recommends a strict interpretation of the concept of spe-

cial rules imposing restrictions concerning the succession and rules out private international law rules subjecting immovable property to a law different from that applicable to movable property, or for provisions providing for a reserved share of the estate greater than that provided for in the law applicable to the succession under the Regulation, from being so classified.

Article 31: Adaptation of rights in rem Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.

1 This Article forms a connection between the property status and the

succession law status with regard to rights in rem. It is for the succession law to determine the rights, including the rights in rem, granted to each heir or legatee, but it is for the lex situs of the assets to determine the rights in rem for them. The numerus clausus of the rights in rem, such as it is determined by the lex situs, may not be extended by any other law. 2 If therefore the succession law grants a right in rem unknown to the lex 1

See for example in France, Cass. Civ. 1ère 10 oct. 2012, no. 11-18345: “rules relating to preferential attribution are, because of their economic and social nature, overriding mandatory provisions of the kind whose purpose is to apply to those whom the law on situation of the immovable asset determines”.

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Article 31 para. 3; Article 32

situs, it will be necessary, by way of adaptation, to find in the lex situs for the nearest equivalent right in rem possible to achieve the same objective as the right in rem provided for by the succession law. The text does not distinguish between movables and immovable prop- 3 erty. The adaptation of rights in rem to the lex situs must therefore also be made for movables as well as immovable property. Example 1 The deceased had his habitual residence in Belgium. He leaves children and a surviving spouse. Belgian succession law provides for the latter a reserved usufruct of half of the succession, in combination with ¾ for the descendants. This usufruct cannot extend to the assets located in Germany, because the German lex situs does not recognize such a usufruct. It is thus necessary to consider this usufruct as an obligation for the heir to adapt the assets located in Germany for the benefit of the surviving spouse.1 Example 2 The deceased had his habitual residence in Colombia and had bequeathed by Will full ownership in immovable property located in Germany. German property law does not allow this legacy ipso jure to transfer ownership to the legatee. Such a Vindikationslegat of German immovable property is to be treated in Germany as a legacy only, giving the legatee the right to obtain title to the property rather than immediate title itself (Damnationslegat).2

Article 32: Commorientes Where two or more persons whose successions are governed by different laws die in circumstances in which it is uncertain in what order their deaths occurred, and where those laws provide differently for that situation or make no provision for it at all, none of the deceased persons shall have any rights to the succession of the other or others.

1 2

See BayObLG 26 10 1995, FamRZ (Zeitschrift für das Familienrecht) 1996, 694. BGH 28.9.1994, FamRZ (Zeitschrift für das Familienrecht) 1994, 1585.

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Article 32 paras. 1–4; Article 33

1 This provision on commorientes reproduces literally (save one word in

the French version) Art. 13 of the 1989 Hague Succession Convention. It must be read in conjunction with Art. 23 § 2 a, which submits the time of the opening of the succession process to the succession law . 2 For the text to apply, it is necessary to assume two or more persons

dying in the same event, at least one of whom had the right to inherit from the other. If the succession of these persons is governed by the same law, it is this law that will determine whether one of them, and which, is presumed to have survived the other or others. 3 If the successions of these persons are governed by different laws, it will

be necessary to examine whether there is an agreement on this point between the different laws. If both of them assume that the youngest person has survived, that will be applied. The same applies if one of these laws bases the assumption of survival on age and the other on gender, and these two laws agree in presuming that the same person has survived, then presumption will be retained. This would be the case of a brother aged 40 and a sister of 45 killed in the same accident, the two laws agreeing in assuming that the brother has survived the sister. If on the other hand the brother was 45 and the sister 40, the assumptions made by these two laws would be incompatible. 4 To deal with the difficulty arising from this incompatibility, Art. 32 sets

out a rule of material law. None of the persons dying together will have rights in the succession of the other or the others. The succession of each will proceed as if the others had not existed.

Article 33: Estate without a claimant To the extent that, under the law applicable to the succession pursuant to this Regulation, there is no heir or legatee for any assets under a Disposition of Property upon Death and no natural person is an heir by operation of law, the application of the law so determined shall not preclude the right of a Member State or of an entity appointed for that purpose by that Member State to appropriate under its own law the assets of the estate located on its territory, provided that the creditors are entitled to seek satisfaction of their claims out of the assets of the estate as a whole. 168

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Article 33 paras. 1–5

This Article has its origin in Art. 16 of the 1989 Hague Succession Con- 1 vention. It seeks to determine, in cases in which there is no person entitled, which of the States – the one in which the assets are situated or the one whose law is designated by the Regulation – will acquire the assets of the estate. The difficulty arises from the fact that according to certain rights, the State acquires assets without an owner that are situated on its territory as the sovereign power, whilst under other laws, the State collects these assets as the ultimate heir or residuary beneficiary. In the latter case, it has the right, like any heir, to inherit the assets of the estate that are situated outside its territory. If the succession law and the lex situs both use one system or the other, 2 no problem arises. If they both retain the system of the sovereign right of the State, it is the one where the assets are situated that will collect the assets situated on its territory and only these assets. If the two laws each retain the system of the State as heir, it is the State whose law is applicable to the succession that will inherit all the assets, wherever they are situated. Art. 33 affirms the right of the State where the assets are situated to ap- 3 propriate the assets situated on its territory, whatever the provisions of the succession law. It thus regulates any conflict between the succession law retaining the system of the inheriting State and the lex situs retaining the system of the State exercising its sovereign right. It does not regulate the negative conflict capable of arising in the converse hypothetical situation, if the succession law A retains the sovereign system and the lex situs B the system of the inheriting State. In this case neither of the States concerned will be able to claim the assets situated in State B. The situation of there being no person entitled envisaged by the text is 4 that where there is no heir-at-law or residuary beneficiary entitled under the succession law, nor any natural person or legal entity, named as heir or legatee by a Disposition of Property upon Death. In contrast to Art. 16 of the 1989 Hague Succession Convention, Art. 33 5 of the Regulation includes two limitations that reduce the scope of application. In the first place, the situation of there being no heir is only retained if “there is no heir or legatee for any asset”. In a situation where the deceased only made a Disposition of Property upon Death in relaPaul Lagarde

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Article 33 para. 6; Article 34 para. 1

tion to a single one of his assets, Art. 33 will not apply. This means that in such a case the State where the other assets are situated will not be authorised to appropriate those assets situated on its territory under its own law. 6 The other limitation brought by the Regulation reserves the rights of

creditors to claim against all of the assets of the estate. The significance of the text, clearer in the English version than in the French, is explained under Recital 56. To ensure that the allocation of the assets to the State where they are situated “is not detrimental to the creditors of the estate, a proviso should be added enabling the creditors to seek satisfaction of their claims out of all the assets of the estate, irrespective of their location.”

Article 34: Renvoi 1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State; or (b) to the law of another Non-Member State which would apply its own law. 2. No renvoi shall apply with respect to the laws referred to in Article 21 (2), Article 22, Article 27, point (b) of Article 28 and Article 30.

I. General 1 This Article marks an important change in the Regulation in relation to

the draft proposal of the Commission. Art. 26 of the latter had ruled out any form of renvoi, as do the other European Regulations relating to applicable law (Rome I and Rome II). The Hague Conventions similarly exclude renvoi as a general rule, but the 1989 Hague Succession Convention, taking account of the definition of the succession law, had made an exception to the rule and allowed renvoi in one case (Art. 4), which will be discussed further. The Regulation has followed this model and even added a second case where renvoi is accepted. 170

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II. Paragraph 1 Paragraph 1 begins by indicating that renvoi is envisaged only when the 2 Regulation indicates the application of the law of a third State. If the law indicated by the Regulation is that of a Member State other than that of the forum, it is not in effect possible to have renvoi, since this Member State is assumed, being bound by this Regulation, to have the same applicable law rule as the State of the forum.

1. Sub-paragraph (a) The first case of application of renvoi is the one where the applicable 3 law rule of the third State indicated by the Regulation refers back to the law of a Member State. The reason for the admissibility of renvoi in this case is twofold. Firstly, renvoi simplifies the task of the judge involved, if the law to which he is referred back is his own. This is a case of single renvoi (Ger. Rückverweisung remission). Secondly, renvoi sometimes makes it possible to avoid the application to a national of a Member State of the law of a State whose ideas regarding succession are very different from those of the European Union. It then plays a supplementary role, although technically different, to that of the exception clause of Art. 21 § 2. Example 1 The deceased is a Frenchman settled for some years in Qatar where he carried on his professional activities. A French court is involved on the basis of Art. 10 § 1, a (court of nationality). The Regulation indicates the law of Qatar, being the law of the habitual residence of the deceased. Qatar, like the majority of the States with Islamic law, makes the succession of non-Muslim foreigners subject to their national law. Here therefore renvoi leads to the application of French law and not to the Sharia law in force in Qatar. This single renvoi, allows the court involved to apply its own law and it also very probably meets the expectations of the deceased and of his heirs and legatees. Example 2 The same situation as in example 1, apart from the fact that the deceased is a German and that the French court engaged is competent on the basis of paragraph 1 b or of paragraph 2 of Art. 10. The RegulaPaul Lagarde

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tion indicates the succession law of Qatar as in example 1, but this refers back to German law. It is thus for the French court involved a double renvoi (Weiterverweisung, transmission) which, whilst it similarly may meet the expectations of the interested parties, does not have the advantage for the court involved of making it apply its own law. The Regulation nevertheless imposes this renvoi because refusing it would have varied the applicable law according to the Member State whose courts would have been involved and would in addition have created discrimination between citizens of the European Union depending on their nationality. 4 The situation will also be more complex owing to the fact that the ap-

plicable law rule of the third State may differentiate between the movable and immovable property in the estate. The application of renvoi may then lead to the application of the law of two different States, more particularly of two different Member States. It breaks the unity of the succession, which is a basic principle of the Regulation,1 but unless the use of the singular by Article 34 is regarded as determining in this respect, it does not seem to be ruled out by the Regulation. Example 3 The deceased is a German who has died habitually resident in Monaco. He has immovable property in France. Monegasque law refers back to German law for the movable goods in the estate, and to French law for the immovables located in France. This renvoi to the law of two Member States seems to be among the possibilities envisaged by sub-paragraph a Example 4 The deceased is a Frenchman domiciled in New York. He leaves immovable property in France. The law of the State of New York, indicated by the Regulation, acknowledges its jurisdiction with regard to the movables and applies New York law, but refers the immovable back to French

1

By way of comparison, the French Cour de cassation has recently deemed that renvoi “is only allowed if it ensures the unity of the estate and the application of the same law to movables as to immovables”” (Ci. 1ere, 11 fév. 2009, Riley, appeal no. 06-12140, Rev. crit. DIP, 2009-512, note B. Ancel.

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law. The partial renvoi to French law would also seem as if it must be accepted.

2. Sub-paragraph (b) The second case of application of renvoi is the one that had been re- 5 tained by Art. 4 of the 1989 Hague Succession Convention. Renvoi is accepted if the law indicated refers back to the law of another third State which would apply its own law. The objective here is to avoid disturbing a local situation outside the territory of the European Union resolved in a similar fashion by the applicable law rules of the relevant third States, by the application of the Regulation. This objective may also create a schismatic renvoi that is accepted. Example 5 A French court has jurisdiction for the estate, entirely consisting of movable property, of a Russian businessman who had his habitual residence in Monaco. The Regulation prescribes the application of Monegasque law, but this refers back to the national law of the deceased, in other words Russian law, the applicable law rules of which agree, because it too subjects succession to the national law of the deceased. This renvoi has to be observed. If a Monegasque court or a Russian court had been involved with this inheritance, both would have applied Russian law. To refuse renvoi would have pointlessly destroyed the existing common rules established between the relevant third States and led to the risk of a refusal by the latter to recognize the solution thus proposed. Example 6 The deceased is a United Kingdom citizen most closely connected with England who had established his habitual residence in Monaco. He owns immovable property in Ireland. Monegasque law refers back, for the inheritance of the movables, to English law and for the immovables to the law of the country where they are situated, in other words Irish law. English law, if it considers in casu that the deceased had preserved his domicile in England, also applies English law with regard to the movable assets of the estate. Irish law also applies Irish law with regard to the estate’s immovables situated in Ireland. Renvoi has to be accepted. Since the United Kingdom and Ireland are third States for the purposes

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of the Regulation,2 the balance established spontaneously between Monegasque, English and Irish law has to be respected “in order to guarantee international consistency” (Recital 57 to the Regulation). 6 These cases of double renvoi are the only ones authorised by the Regu-

lation. Total or further degrees of renvoi is not accepted. If the Regulation indicates the law of a third State which refers back to the law of another third State which itself refers back to the law of a further third State, renvoi is not permitted, even if this last third State accepts the renvoi to it by the second.

III. Paragraph 2 7 This paragraph prohibits renvoi in four cases, listed restrictively, where

allowing it would be contrary to the sense of the applicable law rules and is generally excluded in private international law. 8 The first case is if the succession law has been ascertained by the appli-

cation of the exception clause (Art. 21 § 2). This law is presumably that of the country with which the deceased had the closest connections. The working of renvoi would inevitably result in another law, less appropriate than the preceding one, and is thus ruled out. 9 Renvoi is secondly set aside when the law of succession has been speci-

fically chosen by the deceased (Art. 22). Renvoi of this law to another law would override the choice of the deceased, which the Regulation has specifically sought to preserve by permitting the testator, within certain limits, to choose the succession law to govern his estate. 10 The exclusion of renvoi extends also to an Agreement as to Succession

when the law governing it has been designated by the parties (Art. 25 § 3, is not mentioned in Art. 34 but it refers back to Art. 22 which is specified). 11 The third case of the exclusion of renvoi concerns the form of Disposi2

Although one of the authors of this book has a contrary opinion on this issue. See Frimston, Art. 3, para. 44 compared to Odersky, Art. 4, para. 12, and Bergqvist, Art. 39, para. 3.

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Article 34 para. 12; Article 35 paras. 1, 2

tions of Property upon Death and declarations (Art. 27 and 28, point b). Art. 27 allows the formal validity of a Disposition of Property upon Death if it conforms to one of the numerous laws that it lists. The Regulation has not wished to go further in admitting renvoi in favorem to another law. Art. 28, point b, declares formally valid a declaration of acceptance of the succession or of its renunciation if made whilst respecting the requirements of the law of the State of habitual residence of the person making the declaration. The Regulation has wished in this way to facilitate the exercise of the right of choice of the party declaring and this objective would be compromised if renvoi from the law of habitual residence to another more demanding law were permitted. Finally, renvoi is also excluded if the applicable law is, as an overriding 12 mandatory provision, the lex situs of certain immovable assets or of certain businesses or categories of assets in the cases indicated in Art. 30. In fact the exclusion of renvoi follows automatically since presumably the lex situs will claim its application whatever the law applicable to the succession.

Article 35: Public policy (ordre public) The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

This Article retains, as do all of the Hague Conventions and the Regu- 1 lations of the European Union, the reservation of public policy. Its formulation is doubly restrictive. The public policy exception may only be raised in objection to the ap- 2 plication of a provision of the relevant succession law under the Regulation and not to all aspects of such a law. This means that the relevant law has to be applied, even if it includes provisions contrary to public policy, if the provision concerned is not. Even if it might be so in abstract, its disapplication is only permitted if the public policy objection would actually appear in the practical circumstances of its application.

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Article 35 paras. 3–6

3 Furthermore, the effect of the disapplication of the succession law un-

der the Regulation only arises in the event of manifest incompatibility with public policy. This condition, appearing in the Hague Convention of 24 October 1956 on the law applicable to the maintenance obligations to children, has been constantly included since then in Hague Conventions and it has been retained by all European Union Regulations in private international law. With regard to succession a Disposition of Property upon Death from a third State discriminating against heirs by gender, religion or nationality would be considered “manifestly” contrary to public policy. 4 Art. 35 indicates that the classification of a provision being contrary to

public policy has to be understood in relation to the laws of the forum, but it does not take a position on the law that has to be substituted for the rejected foreign provision. Each Member State will thus be likely to apply by substitution its own law or another provision of that law, close to the rejected provision but not contrary to the public policy of the forum. 5 Recital 58 States that the courts of a Member State “should not be able

to apply the public-policy exception in order to set aside the law of another State […] when doing so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.” Subject to this reservation, it is possible that the exception of public policy may be raised in objection to the law of another Member State. 6 This question will arise for reserved shares. The Regulation has not pre-

served the provision in the draft proposal of the Commission, in accordance with which public policy might not be applied to the succession law “on the sole ground that its clauses regarding the reserved portion of an estate differ from those in force in the forum” (ex-Art. 27 § 2). The courts of a Member State recognising the reserved share will probably be requested to raise an objection of public policy to foreign laws disregarding this, to ensure protection of the children or of the spouse. To accede to such a request might ruin the effectiveness of the Regulation, because the existence or absence of the reserve or other family protection rules is a characteristic trait of the succession law of each State and the application of the exception of public policy would 176

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Article 35 para. 7; Article 36

make the conflict of laws rule very complex. What is more, this application might lead to discriminatory effects as a result of the proximity of the situation with the forum and especially the nationality of the interested parties. Supposing that the English succession law that applies a discretionary rather than a fixed reserve may offend the sensitivities of a French judge, it is probable that it would offend them more when it concerns the succession of a French national having his last habitual residence in London than if it concerns an United Kingdom national in the same circumstances. A compromise solution, complying with the spirit of the Regulation, 7 might be as follows; the succession law of a third State that has different rules in relation to a reserve share is not a priori contrary to public policy. It is necessary to examine, on a case by case, whether its application would result in an unacceptable situation, leaving for example children of minor age or still studying without resources.1 Article 36: States with more than one legal system – territorial conflicts of laws 1. Where the law specified by this Regulation is that of a State which comprises several territorial units each of which has its own rules of law in respect of succession, the internal conflict-of-laws rules of that State shall determine the relevant territorial unit whose rules of law are to apply. 2. In the absence of such internal conflict-of-laws rules: (a) any reference to the law of the State referred to in paragraph 1 shall, for 1

The 1989 Hague Succession Convention had envisaged the possibility of a reservation allowing the dismissal of the law chosen by the deceased when its application “would totally or very substantially deprive the spouse or a child of the deceased of an inheritance or family provision to which the spouse or child would have been entitled under the mandatory rules of the law of the State making this reservation,” (Art. 24, § 1, d, 2nd hyphen). Similarly, the Hague protocol of 23 November 2007 on the law applicable to maintenance obligations, to which the Maintenance Obligations Regulation mainly applies, foresees that the law specified with the agreement of the parties will not apply “where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties” (Art. 8 § 5).

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the purposes of determining the law applicable pursuant to provisions referring to the habitual residence of the deceased, be construed as referring to the law of the territorial unit in which the deceased had his habitual residence at the time of death; (b) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the deceased, be construed as referring to the law of the territorial unit with which the deceased had the closest connection; (c) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of the territorial unit in which the relevant element is located. 3. Notwithstanding paragraph 2, any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the relevant law pursuant to Article 27, in the absence of internal conflict-of-laws rules in that State, be construed as referring to the law of the territorial unit with which the testator or the persons whose succession is concerned by the Agreement as to Succession had the closest connection. I. General II. Paragraph 1 III. Paragraph 2 1. Sub-paragraph (a)

1 4 5 6

2. Sub-paragraph (b) 3. Sub-paragraph (c) IV. Paragraph 3

8 9 11

I. General 1 The object of this Article is to determine the law applicable to the suc-

cession when the Regulation specifies the law of a State with more than one legal system. This situation is encountered in two series of cases, either where the State whose law is specified includes several territorial units each having its own rules of law with regard to succession (interterritorial conflicts, as in the United Kingdom, the United States of America or in Spain), or where this State has several systems of rules applicable to different categories of persons (inter-personal conflicts, as in Lebanon).

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Article 36 paras. 2–5

The conventional practice has taken these internal conflicts into ac- 2 count and since the 1970s the Hague Conventions have contained provisions to this effect. These provisions, concise in origin and together dealing with both territorial and interpersonal conflicts (see the Convention of 2 October 1973 on the law applicable to maintenance obligations, Art. 16), have progressively become diversified and now distinguish the two categories of internal conflict. At the same time, they have become more complex in order to provide a solution to all the situations that can be envisaged (see for example the 1989 Hague Succession Convention, Art. 19, and that of 10 October 1996 on the Protection of Children, Art. 47). The Succession Regulation has followed this model. Interterritorial con- 3 flicts are the subject of Art. 36, interpersonal conflicts being dealt with in Art. 37. The general idea, common to these two types of conflicts, is that it is necessary to use the internal rules of conflict existing in the State considered but that in the absence of such rules, it is necessary to resort to the principle of closest connection and to apply the law of the part of this State with which the deceased showed the closest links.

II. Paragraph 1 This paragraph lays down the rule by which the territorial unit whose 4 laws must be applied is that specified by the internal conflict rules of the State being considered. The text assumes rules of conflict exist at State level. If the State permits each territorial unit to decide for itself the scope of application within the extent of its own law, this paragraph does not apply, even if the conflict rules in force in each of the territorial units is identical or very similar. In such a case, however, it is probable that these similar rules will be observed by the forum court, but only if they conform to the provisions set out in paragraph 2.

III. Paragraph 2 Chapter III of the Regulation retains, as has been seen, a large number 5 of connecting factors depending on the relevant situation: habitual residence, nationality, domicile, closest connections, the place of concluding an agreement or making an act or deed, the situs of certain assets. If the Regulation specifies the law of a State with more than one legal sysPaul Lagarde

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tem and in the absence of internal conflict-of-law rules in that State, paragraph 2 indicates how to ascertain these connecting factors.

1. Sub-paragraph (a) 6 The simplest case is that of the habitual residence of the deceased at the

time of his death. Sub-paragraph a indicates logically that the territorial unit is that in which the deceased had his habitual residence at the time of his death or, as the case may be, at the time of making a Will or of concluding an Agreement as to Succession. 7 The territorial unit in which the habitual residence is to be found may

be difficult to establish, for example in the case of a person dividing his life between New York and San Francisco. The Regulation is silent on this matter, but there will be a question of fact to be resolved in the context of the closest connections (cf. the same problem, on the international scale, with a choice of law under Art. 22 or in relation to domicile under Article 27, § 1, in fine).

2. Sub-paragraph (b) 8 When the Regulation uses the nationality of the deceased as a connecting

factor (Art. 27 § 1 b), the territorial unit of the State of which the deceased was a national is that with which the deceased showed the closest connection. The rule may be applied to the foregoing example of the American dividing his time between New York and San Francisco,

3. Sub-paragraph (c) 9 This residual sub-paragraph concerns all the other connecting factors

used by the Regulation. It subjects them to the law of the territorial unit where the connecting factor is situated. The Regulation is easy to apply to the connecting factors of the place of concluding an agreement or the making of an act or deed or the situs of certain assets. For domicile, see supra, ad Art. 27, no. 6. 10 When the Regulation specifies the law of the State with which there is

the closest connection, it is necessary to understand that sub-paragraph c indicates the law of the territorial unit of this State with which 180

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Article 36 paras. 11, 12; Article 37 para. 1

the person being considered or the situation had the closest connection (cf. the provision in this sense of the 1989 Hague Succession Convention, Art. 19 § 4).

IV. Paragraph 3 This paragraph applies solely, and with priority over the provisions of 11 paragraph 2, to the connecting factors used by Article 27 (the formal validity of Dispositions of Property upon Death): the place of making the Disposition or of concluding the Agreement, nationality, domicile, situs of immovable property. Compared to the different solutions to internal conflict rules given in paragraph 2, paragraph 3 provides a uniform solution and retains the law of the territorial unit with which the testator or the person whose succession is concerned by the Agreement as to Succession shows the closest connection. The simple effect of this provision is obvious in the case of domicile. If 12 paragraph 2 had been applicable, it would have been necessary to retain the law of the territorial unit in which the domicile was situated and, in order to determine this territorial unit in case of doubt, to ask the law of each territorial unit concerned whether the maker of the Disposition had his domicile there (analogy with Article 27 § 1, final sub-paragraph), which would not have eliminated cases of plurality or of absence of domicile. Article 37: States with more than one legal system – inter-personal conflicts of laws In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of succession, any reference to the law of that State shall be construed as referring to the system of law or set of rules determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the deceased had the closest connection shall apply.

This provision, which exists in identical form in numerous Regulations 1 and Conventions, is based on the same principle as Art. 36 for interterPaul Lagarde

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ritorial conflicts, in the sense that the solution to the interpersonal conflict must first be sought in the rules in force in the State specified by the Regulation. 2 In the absence of such rules, it is not possible to resort to territorial

criteria in order to determine the applicable law. The Article specifies that it is the system of law with which the deceased had the closest connection. These connections are not defined but it could be appropriate to turn to the rules of each system or of each community to verify whether they considered that the deceased was subject to them.

Article 38: Non-application of this Regulation to internal conflicts of laws A Member State which comprises several territorial units each of which has its own rules of law in respect of succession shall not be required to apply this Regulation to conflicts of laws arising between such units only.

1 This Article, like the preceding one, has become usual in the interna-

tional or European texts in relation to the conflict of laws. An estate elements of which are spread between different territorial units of the same Member State is an internal issue for this State. This State may, if it wishes, apply the Regulation to this situation, but this then applies as an internal rule of this State. Determination by this State of the solution to its internal conflict is in harmony with the solution retained by Art. 36 § 1 which gives priority to the rules of the multilegislative State to resolve this internal conflict within this State. 2 The freedom left to the State concerned by Art. 38 only exists if the

conflict of laws occurs “only” between these units. If the factual element of a matter mentioned in Art. 23 is located outside the legal system of this State, the estate assumes an international character and the Regulation must be applied.

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Introduction Ch. IV paras. 1, 2

Chapter IV: Recognition, Enforceability and Enforcement of Decisions Introduction to Chapter IV Bibliography Gaudemet-Tallon, Compétence et execution des jugements en Europe, 4th edition, L.G.D.J., Paris 2010 Gothot/Holleaux, La Convention de Bruxelles du 27 septembre 1968, Jupiter, Paris 1985 Jenard, La Convention de Bruxelles du 27 septembre 1968, OJ 1979 Kropholler, Europäisches Zivilprozessrecht, 8. Auflage, Verlag Recht und Wirtschaft, Frankfurt a. M. 2005

Magnus/Mankowski, Brussels I Regulation, 2nd revised edition, sellier european law publishers, Munich 2012 Pointier/Burg, EU principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters, T.M.C. Asser Press, The Hague 2004.

Chapter IV on recognition and enforcement in the Succession Regula- 1 tion has had Chapter III in the Brussels I Regulation (EC no. 44/2001) on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters as model. The Brussels I Regulation is based on the Brussels Convention of 1968 and the Lugano Convention of 1988. Thus cases in the European Court of Justice (CJEU) on recognition and enforcement applying the Brussels and Lugano Conventions and the Brussels I Regulation are very important when interpreting the Articles in Chapter IV of the Succession Regulation. The Brussels I Regulation has been replaced by the “new” Brussels Ibis 2 Regulation (EU) No 1215/2012, which applies from January 10th 2015. In the “new” Regulation substantial changes have been made in the rules for Recognition and Enforcement. The most important is that a judgment in one Member State shall automatically be enforceable in another Member State without any declaration of enforceability. How-

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ever the defendant can apply for refusal of the enforcement on the same grounds as in the “old” Brussels I Regulation. 3 The rules for Recognition and Enforcement in the Succession Regula-

tion are based on the “old” Brussels I Regulation and have not been influenced by the “new” Regulation. 4 Of course there are also numerous cases in the national courts applying

the above mentioned Conventions and the Brussels I Regulation that could be of interest. However in this Commentary such national cases have only been referred to by way of exception.

Article 39: Recognition 1. A decision given in a Member State shall be recognized in the other Member States without any special procedure being required. 2. Any interested party who raises the recognition of a decision as the principal issue in a dispute may, in accordance with the procedures provided for in Articles 45 to 58, apply for that decision to be recognized. 3. If the outcome of the proceedings in a court of a Member State depends on the determination of an incidental question of recognition, that court shall have jurisdiction over that question.

I. General 1 Article 39 has Article 33 Brussels I Regulation (Art. 36 Brussels Ibis

Regulation) as a model. 2 One of the main legal problems for successions in the EU is that deci-

sions in one Member State are not recognized in other Member States. The Brussels I Regulation (with recognition rules) expressly does not apply to successions (Article 1.2.a = Article 1.2. a and f Brussels Ibis Regulation). For practitioners (not to mention heirs) Article 39 is therefore one of the cornerstone rules in the EU Succession Regulation.

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Article 39 paras. 3–5

Recognition and enforcement of judgments in other Member States is based on the confidence in the jurisdictional functioning between the Member States.1 Three of the EU Member States (UK, Ireland and Denmark) have not 3 adopted the Succession Regulation (see Recitals No. 82 and 83). In the author’s opinion these three States must thus in connection with the Succession Regulation be regarded as third States. It would have been an advantage if that had been stated expressly in the Recitals. However, it would be unreasonable if the Regulation forces a French court to recognize a succession decision from a British court, whilst a British court is not obliged to recognize a succession decision of a French court. This important question should be resolved without delay either by an amendment to the Recitals or by a decision of the CJEU.2

II. Paragraph 1 Not only contentious but also non-contentious decisions, (i.e. settle- 4 ments after mediation) can be recognized.3 Even decisions given in default of appearance might be recognized (see Article 40.b).4 Decisions in one Member State are automatically (ipso iure) recognized 5 in other Member States without any special procedure required.5 However this automatic recognition does not mean that decisions from another Member State are treated exactly the same as a domestic decision. A foreign decision may be refused recognition under the grounds of refusal in Article 40. Foreign decisions will be subjet to examination either under a principal action for recognition (Article 39.2) or incidentally (Article 39.3). The automatic recognition thus only means that a foreign decision must not undergo some internal procedures for recognition in the State of recognition other than the procedure provided for in the Regulation.6 1 2

3 4 5

Unibank v Christensen (C-414/92). See Lagarde, Introduction, para. 49 and Odersky, Art. 4, para. 12, but on the contrary Frimston, Art. 3, para. 40–57. Gaudemet-Tallon p. 388 et seq. Gaudemet-Tallon p. 389. Gaudemet-Tallon p. 391.

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6 In the Jenard Report there is a definition of recognition: “Recognition

must have the result of conferring on judgements the authority and effectiveness accorded to them in the State in which they were given..7 This definition has been quoted by the CJEU.8 This means that a decision issued in a foreign State may have legal consequences unknown in the legal system of the State of recognition.9 The only limitation lies in the public policy clause (Article 40.a).10 7 When deciding the effects of a foreign decision, the court of recognition

will follow the terms of the decision itself. Additional evidence might be admitted to clarify these terms, but not to add to the substance thereof.11 8 Recognition has two effects, a positive authority and a negative author-

ity.12 The positive authority constitutes a valid determination of the rights and obligations of the parties.13 For instance a Swedish court decision can determine which of the heirs shall become the new owner of the deceased’ s flat in Spain. The negative authority (res judicata) means that it is not permitted for a court in another Member State to reconsider a decision in a matter that has already been decided by a court in a Member State.14

III. Paragraph 2 9 There are two possible means to obtain recognition of a foreign deci-

sion. Either as the principal issue (Article 39.2) or as an incidental question (Article 39.3). The latter case will probably be the most common i.e. together with a request for enforcement.15 However some decisions 6 7 8 9 10 11 12 13 14 15

Magnus/Mankowski p. 639 et seq. Jenard Report No C 59/43. Hoffman v Krieg (C-145/86). Gaudemet-Tallon p. 367 et seq and 392 et seq. Magnus/Mankowski p. 637. Magnus/Mankowsi p. 638. Gaudemet-Tallon p. 391 et seq. Magnus/Mankowski p. 636. Gaudemet-Tallon p. 392; De Wolf v Cox (C-42/76). Kropholler p. 405.

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Article 39 paras. 10, 11

do not lend themselves to enforcement, sine they are only awarding a declaration of the rights of parties.16 The Jenard Report implies that Article 39.2. only gives the possibility to 10 obtain a declaration of recognition not a declaration of non-recognition.17 This also seems to be in accordance with the text in the paragraph. (Compare Brussels IIbis Regulation Article 21.3 where the possibility of obtaining a declaration of non-recognition is expressly regulated). However this opinion is not undisputed. It has been suggested that since the Regulation text does not expressly prohibit a declaration of non-recognition, a request for such a declaration should be possible if the national law of the court of recognition allows it..18 To obtain a declaration of recognition the applicant must use the procedure provided in Articles 45-58. These procedures apply only to judgments delivered by courts of Member States.19 The procedure is totally ex parte.20 The Regulation text uses the expres- 11 sion “any interested party”. According to the Jenard Report the expression implies that “any person who is entitled to the benefit of the judgment in the State in which it was given has the right to apply for an order” for recognition.21 This means that an “interested party” might be not only someone who was a direct party in the proceedings in the State of origin, but also be an assignee from (or an heir of) an original party. The courts in the State of recognition should not look to their national law to define “interested party”. Instead, a community definition should be used, and in doing so a broad definition of the notion “interested party” should be adopted.22 Even parties who have been subrogated to the rights of an original party can be regarded as an “interested party”.23

16 17 18 19 20 21 22 23

Magnus/Mankowski p. 640. Jenard Report No C 59/43. TGI Paris court 120 (1993), 599; Lagarde, RCDIP 78 (1989), 534 537. Owes v Bracco (C-129/92). Magnus/Mankowski p. 640. Jenard Report No 59/49. Gaudemet-Tallon p. 460. Magnus/Mankowski p. 641 et seq, Kropholler p. 403.

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Article 39 paras. 12–15

12 The notion “dispute” may not be interpreted in such a way that there

must be an express refusal of recognition.24 It might be enough for there to be behavior which is inconsistent with the foreign decision. However the “dispute” must have a certain degree of reality. It is not sufficient that the applicant only have doubts that the decision will be recognized.25 13 Recognition can be partial. A decision may be held to contradict a

ground of refusal only for a certain part and not for the whole. Further, an applicant may limit his request for recognition only to a part of a decision.26 If a Swedish court decision in a succession case rules over assets in both Sweden and Spain, recognition in Spain is of course only of interest in that part which concerns assets situated in Spain.

IV. Paragraph 3 14 According to Article 39.3 a court can recognize a foreign decision in a

succession matter as an incidental question, i.e. together with an application for enforcement or in a dispute in which the principal question is as to the proper owner of an asset situated in the State of recognition. Article 39.3 gives the court of recognition jurisdiction to decide incidentally both ratione materiae and ratione loci.27 This means that even if the court of recognition normally does not have material competence (ratione materiae), i.e. it is a criminal court and the decision to be incidentally recognized is in a commercial matter, it has jurisdiction to decide on an incidental recognition in accordance with Article 39.3. Also if the court of recognition would not normally have local competence (ratione loci), i.e. it is not the court where the defendant has his habitual residence, it has jurisdiction to decide on incidental recognition in accordance with Article 39.3. 15 Before granting incidental recognition to a foreign succession decision

in a dispute which principally concerns another question, the court will immediately review the grounds for non-recognition in Article 40,28 if 24 25 26 27

Kropholler p. 403. Magnus/Mankowski p. 642. Magnus/Mankowski p. 644. Gothot/Holleaux para. 388.

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Article 39 para. 16; Article 40

the defendant claims such a ground. This is why there is no reference to the procedure in Articles 45-58 in Article 39.3 as there is in Article 39.2. However, when the enforcement is the principal question, the grounds for non-recognition will not be reviewed by the court of recognition until the defendant has appealed under Article 50 against a declaration of enforceability according to Article 48. One question is whether an incidental decision leads to res judicata. 16 The general opinion seems to be that a court, called upon to make a declaration of recognition or issue an order for enforcement, is not bound by a decision of another court to grant or to deny incidental recognition of the same question.29 This is especially the case when the second recognition is sought in a State other than that of the first recognition.

Article 40: Grounds of non-recognition A decision shall not be recognized: (a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought; (b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so; (c) if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought; (d) if it is irreconcilable with an earlier decision given in another Member State or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfills the conditions necessary for its recognition in the Member State in which recognition is sought.

28 29

Magnus/Mankowski p. 643. Kropholler p. 405.

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189

Article 40 paras. 1–5 I. General II. Paragraph (a); ordre public / public policy III. Paragraph (b); In default of appearance

1 7 22

IV. Paragraph (c); Irreconcilable with a decision in the State of recognition V. Paragraph (d); Irreconcilable with an earlier decision in another Member State or in a third State

43

51

I. General 1 Article 40 is based on Article 34 of the Brussels I Regulation. 2 As a result of the safeguards granted to the defendant in the original

proceedings, the rules for recognition and enforcement are very liberal. The Regulation seeks to facilitate as far as possible the free movement of judgments, and should be interpreted in this spirit.1 3 The grounds for refusal are obligatory. Recognition or enforcement

must be denied if any of the grounds apply. The judge in the court of recognition has no discretion in this respect.2 4 Once the Regulation applies, its provisions entirely govern the ques-

tions of recognition and enforcement, whether the results are positive or negative. A subsidiary application of domestic law is therefore excluded.3 5 Shall or can the judge in the court of recognition raise a ground of non-

recognition of his own motion? At the first stage Article 48 forbids any such initiative of the judge. At the second stage it is likely to be of minor practical importance since then normally the defendant has raised one or more of the grounds for refusal. However the judge might notice violation of a ground for refusal that is not raised by the defendant. The prohibition in Article 48 for

1 2 3

Jenard Report No. C 59/42. Magnus/Mankowski p. 648. Magnus/Mankowski p. 649.

190

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Article 40 paras. 6–8

the judge is not applicable to the second stage. Thus the judge may on his own motion take grounds of refusal into consideration.4 The Explanatory Memorandum clearly rules out any obligation imposed on the judge to control the grounds of refusal on his own motion.5 The allocation of the burden of proof between the judge and the parties 6 is not directly linked to the possibility for the judge to raise grounds of refusal on his own motion. The Schlosser Report states that the judge, even when he himself raises a ground of refusal, does not have to search for the elements proving either the regularity or irregularity of the foreign judgment. As a result of the presumption in favour of recognition, it is up to the defendant to prove that a ground for refusal exists.6

II. Paragraph (a); ordre public/public policy Ordre public is a national notion defined separately in each State.7 There 7 is no common definition of ordre public in the Regulation or made by the CJEU.8 Thus it is a question for the court in the State of recognition to decide whether a particular matter is subject to ordre public having regard to its national interpretation of that concept. However the CJEU has set out a framework and limits within which ordre public can be applied.9 Thus it will be difficult for national courts to have completely different interpretations of the notion ordre public.10 It is important not to confuse the two concepts ordre public and “lois de 8 police”. The two concepts serve different purposes and cover different kinds of principles. The principles protected by ordre public are more 4 5 6 7 8 9 10

Magnus/Mankowski p. 650. Commission Proposal COM (1999) 348 final, p. 21 et seq. Magnus/Mankowski p. 651. Gaudemet-Tallon p. 423. Renault v Maxicar (C-38/98). Magnus/Mankowski p. 648; Kropholler p. 408; Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 675.

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Article 40 paras. 9–11

fundamental than those legislative policies protected by “lois de police”.11 9 Ordre public is only to be applied in exceptional cases,12 where the de-

cision of origin infringes to an unacceptable degree the fundamental principles of the State of recognition.13 This is underlined by the use of the word “manifestly” in the text of the paragraph. 10 It is the effects of the recognition that will be considered with regard to

ordre public, rather than the judgement (legal reasoning) itself.14 Those effects must reach a certain level of gravity; that a recognition would lead to a substantial breach.15 In civil and commercial matters (the scope of the Brussels I Regulation) the legal differences between the Member States are rarely strong enough to lead to a judgment being contrary to ordre public.16 The risk is however more obvious when it comes to family law17 and succession law. However in the author’s opinion ordre public is not offended if the State of origin has other rules for reserved portions or even if it does not have rules for reserved portions at all. Neither is it considered that different rules on claw-back (obligation under certain circumstances to bring back into account gifts that have reduced the reserved portion) should be regarded as contrary to ordre public. 11 The court of recognition may not use the concept of ordre public in

order to review the substance of the decision of origin.18 Thus it is not permitted for the court of recognition to review the accuracy of the findings of law or fact by the court of origin.19 A mere difference of legislation does not amount to an infringement of ordre public.20 Nei11 12 13 14 15 16 17 18 19 20

Magnus/Mankowski p. 665. Jenard Report No. C 59/44; Hoffman v Krieg (C-145/86). Kropholler p. 408; Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 663. Magnus/Mankowski p. 660; Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 662. Gaudemet-Tallon p. 414. Magnus/Mankowski p. 662; Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 662; Kropholler p. 408. Magnus/Mankowski p. 662; Kropholler p. 408; Renault v Maxicar (C-38/98).

192

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Article 40 paras. 12–14

ther does a difference in the private international rules applied by the court of origin and those which would have been applied by the court of recognition as such lead to an offence against ordre public.21 Even if a national private international rule (a conflict rule) that contradicts a principle of European Union law, was applied by the court of origin, it is not at all certain that that would justify recourse to ordre public.22 An alleged error in the application of the law, be it national (even the law in the State of recognition) or European Union law, would not justify the intervention of ordre public.23 In the author’s opinion an error in jurisdiction by the court of origin cannot lead to refusal due to ordre public, although Article 35.3 of the Brussels I Regulation (Article 45.3 Brussels Ibis Regulation) is not repeated in the Succession Regulation. The refusal ground of ordre public can only be used if the other three 12 refusal grounds in paragraph (b)–(d) do not apply. The refusal grounds are not overlapping.24 Ordre public can have not only a substantive but also a procedural as- 13 pect. The framework of a manifest breach against a fundamental principle is valid also for procedural questions.25 Of course a mere difference of procedure does not amount to an infringement of ordre public.26 However if a party, who could have appealed in the State of origin against a violation of its right to a fair hearing, but without a convincing explanation as to why it did not do so, strongly diminishes the chances to raise procedural ordre public in the court of recognition.27 In the case Krombach v Bamberski, Mr. Krombach refused to appear in 14 person before a French court, though he was duly summoned. The 21 22 23 24 25 26 27

Magnus/Mankowski p. 664; Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 666. Gaudemet-Tallon p. 413; Magnus/Mankowski p. 663. Magnus/Mankowski p. 661; Kropholler p. 410; Hoffman v Krieg (C-145/86). Magnus/Mankowski p. 622. Magnus/Mankowski p. 670. Magnus/Mankowski p. 661 and 671 et seq.

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193

Article 40 paras. 15–17

French court then prohibited him from being represented by a lawyer. When Mr. Bamberski applied for enforcement in Germany the CJEU ruled that it was against ordre public to decide against someone who was refused representation by a lawyer.28 In a similar case Gambazzi v Daimler Chrysler Mr. Gambazzi did not respect a disclosure order by the High court of London. After that Mr. Gambazzi did not even obey an unless order and the High court regarded his behavior as a contempt of court and decided against him as if he had been in default of appearance. Daimler Chrysler applied for enforcement in Italy. The CJEU found that the decision by the High court constituted a manifest and disproportionate infringement of the defendants right to be heard and referred to the Krombach case.29 15 The CJEU has also declared that antisuit injunctions (a court order that

proceedings in a second jurisdiction shall not proceed to prevent miscarriage of justice) are incompatible with ordre public on the ground that injunctions, prohibiting one party from bringing an action before the court of another Member State, constitutes an unacceptable interference with a court in another State.30 16 On the other hand a Mareva injunction (a court order preventing a de-

fendant from transferring assets until the outcome of the main law suit – a freezing order) has been held by the French Court de Cassation as a protective measure that does not prejudice any of the debtor’s fundamental rights, nor the foreign sovereignty.31 17 The case of Maronier v Larmer was reactivated in the Netherlands after

12 years of suspension. The defendant had been properly served at the beginning of the proceedings. However he had moved to England and had lost contact with his lawyer. He was thus never informed about the reactivation though he had left his new address in England with the City Hall in Rotterdam. He lost the case in the Netherlands but the English

28 29 30 31

Krombach v Bamberski (C-7/98). Gambazzi v Daimler Chrysler (C-394/07). Magnus/Mankowski p. 672; Turner v Grovit (C-159/02). Magnus/Mankowski p. 672.

194

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Article 40 paras. 18, 19

court of appeal refused enforcement because of ordre public (not a fair trial).32 In France lack of motivation or equivalent documents in foreign judg- 18 ments is considered as an infringement of ordre public. The same position has been taken by the ECHR (European court of Human Rights).33 If the judgement was obtained by fraud in the State of origin, the court 19 of recognition could depending on the situation refuse recognition on the ground of ordre public.34 If the fraud has already been alleged before the court of origin, refusal is not possible,35 since that would be a prohibited review of the foreign decision (Article 41). If the fraud was first discovered after the original proceedings and the losing party could have used rights of redress in the State of origin, but has not exercised such rights, recognition can also not be refused.36 A more difficult situation is if rights of redress are still available in the State of origin. Staying of recognition proceedings (Article 42) is only possible when an ordinary appeal already has been lodged. Probably recognition must be granted in the first stage,37 but the defendant has a chance at the second stage to have the recognition proceedings stayed, if he then has obtained a suspension of the enforceability of the decision in the State of origin (Article 53). If a party has voluntarily moved in order to deceive the judge of origin on the element rattachment, such a “fraud” cannot lead to refusal of recognition on the ground of ordre public, because of the prohibition on the court of recognition of reviewing the application of law made by the court of origin.38

32 33 34 35 36 37 38

Magnus/Mankowski p. 671. Gaudemet-Tallon p. 421; Kropholler p. 413. Schlosser Report para. 192. Gaudemet-Tallon p. 422. Magnus/Mankowski p. 666. Magnus/Mankowski p. 667; Gaudemet-Tallon p. 423. Gaudemet-Tallon p. 423.

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195

Article 40 paras. 20–24

20 In the Republic of Cyprus a court ordered a British defendant to pay

rent for a villa on a property in the northern part of the island (controlled by the Turks), which before the occupation in 1974 was owned by a family, that was then forced to abandon the house. Although the decision concerned land situated in an area over which the Republic of Cyprus does not exercise effective control, the CJEU stated that refusal of enforcement in UK would not be justified, since the decision did not infringe on essential legal order in the UK.39 21 In the author’s opinion the refusal ground ordre public can be used to

refuse recognition of a court decision that is based on a succession law, that does not give men or women or heirs of different religions the same rights.

III. Paragraph (b); In default of appearance 22 The Regulation has tried to found a fair balance between on the one

hand the protection of the rights of a defaulting defendant and on the other a simplified mechanisme for an applicant to obtain recognition and execution of a judgment in the entire EU.40 23 The court of recognition is not bound by the views of the court of origin

in determining if the conditions in Article 40. (b) are present.41 The court of recognition has jurisdiction to verify that the information in an attestation (Article 46.3.b) is consistent with the evidence.42 However Article 40 (b) does not entitle the court of recognition to refuse recognition because of other provisions than those expressly stated in the Article.43 24 The CJEU has given a functional rather than a formal role to the con-

ditions in the Article stating that the document must be served before an enforceable judgment can be obtained, and it must enable the defendant to defend himself against the action.44 39 40 41 42 43

Apostolides v Orams (C-420/07). Gaudemet-Tallon p. 425. Pendy v Pluspunkt (C-228/81). Trade Agency v Seramico (C-619/10). Hengst v Campese (C-474/93).

196

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Article 40 paras. 25–30

Only judgments in the context of contradictory proceedings (not uni- 25 lateral) fall into the scope of Article 40 (b). This does of course not mean that judgments adopted after one part was not heard are disqualified.45 Article 40 (b) protects not only defendants domiciled in Member States 26 but also defendants domiciled in a third State.46 According to the CJEU the definitions of the notions in the Article (i.e. 27 default) are not steered by national rules, either in the State of origin, or in the State of recognition. The important feature is the functional protection of the defendant’s rights as opposed to the free movement of judgments.47 A guideline for the notion “in default of appearance” is that the defen- 28 dant cannot be in default if he or his lawyer has presented arguments before the court, which show that he has actual knowledge of the proceedings and has had enough time to prepare his defence.48 However if the defendant solely contested the jurisdiction of the court or the service of the documents, he cannot be considered to have entered an appearance.49 A defendant is regarded as being in default, even if a lawyer is present 29 claiming to represent the defendant, but that lawyer is not authorised by the defendant.50 The notion “an equivalent document” can be an order of payment (e.g. 30 Mahnbescheid in Germany), which is delivered by the court after a purely unilateral proceeding, but whose service enables the plaintiff to obtain an enforceable decision, if the defendant does not raise any objection. In this way the initially unilateral proceeding is transformed 44 45 46 47 48 49 50

Magnus/Mankowski p. 676; Hengst v Campese (C-474/93). Magnus/Mankowski p. 676 and 679; Denilauer v Couchet (C-125/79). Gaudemet-Tallon p. 428. Gaudemet-Tallon p. 427. Sonntag v Waidmann (C-172/91). Hebdrikman v Magenta (C-123/91). Kropholler p. 419.

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197

Article 40 paras. 31–33

into a defended one. On the other hand an enforcement order (e.g. Vollstreckungsbefehl in Germany), which is in itself enforceable, cannot be considered as a “document instituting the proceedings” even though the defendant can raise an objection to it, because such a document was not served on the defendant before an enforceable title was obtained.51 31 The defendant may be served either by ordinary service (personally or

at his residence) or by substituted service.52 By substituted service (e.g. posting of the document on the court’s notice board) the claimant or the judge should take all possible additional steps to reach the defendant, and the time necessary for the defence starts running only after completion of those additional steps.53 Such additional steps are mentioned in the EU Regulation on service of documents (EC) No 1393/ 2007 Article 19.2.c and the Hague Convention of 1965 on Service Abroad Article 15. The CJEU has stated that the court of recognition can take into account subsequent circumstances, such as that the plaintiff, who did not know the new address of the defendant when he was served by substituted service, but obtained knowledge of the address after the service.54 32 The defendant must be served in sufficient time to enable him to ar-

range for his defence. Whether the time is sufficient shall be considered as a matter of fact by the court of recognition. It is therefore not bound either by the rules of the State of origin or by any views of the court of origin, or by the rules in the State of recognition.55 33 Time starts to run from the date when the defendant received or is pre-

sumed to receive (substituted service) the document, and runs until the adoption of an enforceable decision, even though this period exceeds the time allowed by the court for appearance.56

51 52 53 54 55 56

Magnus/Mankowski p. 677; Klomps v Michel (C-166/80). Gaudemet-Tallon p. 432. Gaudemet-Tallon p. 431. Kropholler p. 423; Debaecker v Bouwman (C-49/84). Gaudemet-Tallon p. 431; Kropholler p. 422. Magnus/Mankowski p. 684.

198

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Article 40 paras. 34–40

A German court has decided that nine days was too short a time.57

34

The document shall not only be served in sufficient time but also in 35 such a way as to enable a fair defence. Respect of the EU Regulation of 2007 and the Hague Convention of 1965 on Service Abroad are relevant as to the kind of presumptions of the quality of the service. For instance, a need for translation can require an extended time limit.58 If the service had some kind of minor irregularity, this does not neces- 36 sary prevent recognition, if the irregularity did not actually prevent the defendant from arranging for his defence.59 If service did not occur at all, there can be no recognition, even if the 37 defendant had knowledge of the action.60 The document must provide the defendant with information about the 38 most important elements of the action, such as the grounds for the claim, and also the time and place of the first hearing. However the defendant does not need to receive detailed information about the exact amount of the claim, the arguments and evidences of the plaintiff or the points of law on which the application is based.61 The defendant can only challenge the default decision in the State of 39 origin. If he did not do so in time, he loses the ability to oppose recognition. This encourages the defendant to use all means (ordinary and extraordinary) provided by the State of origin to set aside the judgement in default.62 If the defendant challenged the decision only on material grounds with- 40 out raising any procedural irregularity, which may have prevented him 57 58 59 60 61

62

Magnus/Mankowski p. 685. OLG Düsseldorf (2002) I.L. Pr. 4. Magnus/Mankowski p. 686; Kropholler p. 425. Magnus/Mankowski p. 682. Magnus/Mankowski p. 686; Kropholler p. 420; Sonntag v Waidmann (C-172/ 91). Magnus/Mankowski p. 688 et seq; Gaudemet-Tallon p. 436; Apostolides v Orams (C-420/07).

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Article 40 paras. 41–43

from exercising his rights to a fair trial, he cannot later oppose recognition.63 41 The defendant cannot oppose recognition if too late he challenged the

decision in the State of origin out of time, unless factual circumstances reveal that he was not in a position to challenge the decision in due time.64 42 The CJEU has in a controversial ruling implied that the judgment in

default must be served on the defendant in order for him to be able to oppose it in sufficient time in the State of origin. In the particular case the background was that the summons to the hearings had not been served on the defendant until after the hearing actually took place.65

IV. Paragraph (c); Irreconcilable with a decision in the State of recognition 43 Article 40.c is related to Article 17 on lis pendens and Article 18 on re-

lated actions. Articles 17 and 18 are aimed to avoid proceedings before the courts in two Member States, if the cases are identical or related.66 According to Article 18.3 actions are deemed to be related, where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable decisions. Notwithstanding these provisions it is still possible that two contradictory decisions are adopted in different Member States. This could occur if the judge is ignorant of the proceedings in another Member State, if the parties do not make him aware of them.67 However Articles 17 and 18 will make the application of Article 40.c very rare.68 In addition the rules of jurisdiction in Chapter II should reduce the risk that proceedings occur in two courts.69 63 64 65 66 67 68 69

Magnus/Mankowski p. 689. Magnus/Mankowski p. 689; Kropholler p. 426. ASML v Semiconductor (C-283/05). Gubisch v Palumbo (C-144/86); OUI v NHIC (C-351/89). Magnus/Mankowski p. 690. Jenard Report No C 59/45; Gaudemet-Tallon p. 437. Besix v Kretzschmar (C-256/00).

200

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Article 40 paras. 44, 45

The scope of Article 40.c is both narrower and broader than that of Articles 17 and 18. Article 40.c is narrower than Article 18 since Article 40.c does not cover related actions,70 i.e. Article 40.c requires that both proceedings involve the same parties. There is no such requirement in Article 18. On the other hand Article 40.c is broader than Articles 17-18, since the conflicting decision in Article 40.c may fall outside the scope of the Succession Regulation.71 Thus it is not necessary that the conflicting judgment in the State of recognition is a decision concerning succession. If irreconcilability is proven it is mandatory for the judge to refuse recognition. There is no discretion for him to assess the level of interference between the two decisions.72 The conflicting judgement in the State of recognition must have been 44 handed down. It is not sufficient that it is pending.73 The CJEU has stated that it is “unimportant whether the judgment at 45 issue have been delivered in proceedings for interim measures or in proceedings on the substance”.74 If both decisions are interim they can still be regarded as irreconcilable. If the decision in the State of origin is interim and the decision in the State of recognition is on the merits, the first can be refused. However if on the contrary the decision in the State of origin is on the merits and the decision in the State of recognition is interim, the first can be recognized in spite of the interim decision.75 A controversial question is whether a forum decision, that is still open to appeal, can be deemed as irreconcilable.76 Of course it is no longer a 70 71

72

73 74 75 76

Tatry v Maciej Ratai (C-406/92). Magnus/Mankowski p. 691; Gaudemet-Tallon p. 440; Hoffman v Krieg (C-145/ 86). Magnus/Mankowski p. 691; Kropholler p. 430; Italian Leather v Polstermöbel (C-80/00). Gaudemet-Tallon p. 438. Italian Leather v Polstermöbel (C-80/00). Gaudemet-Tallon p. 441. Kropholler p. 429.

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201

Article 40 paras. 46–50

refusal ground under Article 40.c, if it has been overturned.77 In the opinion of Prof. Gaudemet-Tallon a forum decision that is not yet overturned, is also ground for refusal.78 46 Settlements do not come into consideration in the application of Article

40.c, only decisions given by a court79 (see Article 61 on enforceability of court settlements). 47 An arbitration award is also not covered by Article 40.c. This could pro-

duce a conflict with State obligations under the New York Convention on arbitration.80 48 The CJEU has provided an autonomous interpretation of the term irre-

concilable stating that two decisions are irreconcilable if they “entail legal consequences that are mutually exclusive”.81 This does not mean that they must concern exactly the same legal problem.82 49 The two proceedings must have exactly the same parties. One set of

proceedings may not on one side have an additional party who was not also a party in the other proceedings. (Compare with Article 18 on related actions, where it is not necessary for the parties to be exactly the same.)83 However a person, who did not participate in the first litigation, but has succeeded to the rights of one of the parties, will be no obstacle to the application of Article 40.c.84 50 It is not a condition for applying Article 40.c (compare Article 40.d),

that the decision in the State of recognition was handed down before the decision in the State of origin.85 77 78 79 80 81 82

83 84 85

Magnus/Mankowski p. 694. Gaudemet-Tallon p. 442. Gaudemet-Tallon p. 438; Kropholler p. 427; Solo v Boch (C-414/92). Magnus/Mankowski p. 692. Hoffman v Krieg (C-145/86). Jenard Report No C59/45; Kropholler p. 428; Italian Leather v Polstermöbel (C-80/00). Kalfelis v Schröder (C-189/87). Magnus/Mankowski p. 695. Gaudemet-Tallon p. 443; Kropholler p. 430; Hoffman v Krieg (C-145/86).

202

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Article 40 paras. 51–56

V. Paragraph (d); Irreconcilable with an earlier decision in another Member State or in a third State Issues that are common between Article 40.c and Article 40.d are com- 51 mented on under Article 40.c. above. Article 40.d concerns both the situation where the decision of origin 52 conflicts with a decision in another Member State other than the State of recognition, and where it conflicts with a decision in a third State. (As a third State in this context is according to the author’s not only regarded a non-EU State but also an EU State that has not adopted the Succession Regulation, that is United Kingdom, Ireland and Denmark).86 Thus the application of Article 40.d is broader than Articles 17-18, as these Articles do not apply to third States. A conflict between a decision in a third State and a decision in the State 53 of recognition is not addressed in Article 40.d. That question must be resolved by national rules in the State of recognition.87 There are four conditions if a decision in another Member State or in a 54 third State is to be a ground for refusal: 1. It must have been already handed down 2. It must be in the same cause 3. It must be between the same parties 4. It must be capable of recognition. Condition 1, 2 and 4 are peculiar to Article 40.d. Only condition 3 is also in common with Article 40.c. To be the earlier decision it must be handed down before the other de- 55 cision. It is not enough that the proceedings in one case started before the proceedings in the other case, even if the judge in the latter case misinterpreted rules of lis pendens or related actions.88 If the conflict is between two decisions in two Member States it is un- 56 86 87 88

Compare opinion of Frimston Art 3 para. 40–57 in this Commentary. Magnus/Mankowski p. 695. Gaudemet-Tallon p. 438; Kropholler p. 431.

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Article 40 paras. 57–59; Article 41

disputed as to which is the earlier decision since both benefit from automatic recognition. The date when recognition is sought is irrelevant.89 If one of the decisions is from a third State it is uncertain as to whether the relevant date for assessing which decision is the earlier, is the date when it was handed down or the date when it was recognized in the State of recognition. The Schlosser Report preferred the first solution, that is the day when the judgment was handed down.90 57 A further condition is that the cause must be exactly the same. It is not

enough that the proceedings are related actions (see Article 18). 58 The situation, if there are two irreconcilable decisions that do not con-

cern exactly the same cause and exactly the same parties, is not addressed in Article 40.d. If both decisions are from Member States, following the strict wording of the Regulation, both decisions are entitled to recognition.91 However, in the author’s opinion it is not logical to recognize two decisions that are irreconcilable. 59 The last condition in Article 40.d is that the conflicting decision can be

recognized in the State of recognition. This condition applies more obviously to a decision from a third State. However, a decision from another Member State might also be refused on the grounds of non-recognition under Article 40.a and 40.b. Whether a decision from a third State can be recognized is determined either internationally by conventions between the third State and the State of recognition or under the national law of the State of recognition.92

Article 41: No review as to the substance Under no circumstances may a decision given in a Member State be reviewed as to its substance.

89 90 91 92

Magnus/Mankowski p. 696. Gaudemet-Tallon p. 446. Magnus/Mankowski p. 696. Magnus/Mankowski p. 697.

204

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Article 41 paras. 1–5; Article 42

This Article has Art. 36 Brussels I Regulation (Art. 52 Brussels Ibis 1 Regulation) as a model. An essential provision for recognition of a decision taken by a court in 2 the State of origin is that a court in the State of recognition does not review that decision as to its substance, either if it considers that a question of fact or a question of law has been wrongly decided.1 Recognition is not a type of appeal.2

3

The court of recognition may not refuse recognition for that reason that 4 it would have decided the matter differently, if it had been the court of origin.3 The court of recognition may not review whether the court of origin made a correct decision as to private international law i.e. as to which country’s law is the applicable law. Nor does it have the right to review if the court of origin correctly ascertained the material law found to be applicable.4 If a defendant alleges that the decision in the court of origin was 5 obtained by fraud, a mere allegation will not prevent recognition, but only if recognition would be regarded as manifestly contrary to public policy.5

Article 42: Staying of recognition proceedings A court of a Member State in which recognition is sought of a decision given in another Member State may stay the proceedings if an ordinary appeal against the decision has been lodged in the Member State of origin.

1 2 3

4 5

Jenard Report No C 59/46; Kropholler p. 441. Magnus/Mankowski, p. 721. Gaudemet-Tallon p. 397; Renault v Maxicar (C-38/98); Krombach v Bamberski (C-7/98). Magnus/Mankowski p. 722. Magnus/Mankowski p. 722.

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Article 42 paras. 1–6

1 This Article has Art. 37.1 Brussels I Regulation (Art. 38.a Brussels Ibis

Regulation) as a model. 2 The purpose of this Article is “to prevent compulsory recognition or

enforcement of judgments that might be annulled in the State of origin,1 thus preventing that the potential effects of an appeal in the State of origin might be preempted by immediate enforcement in the State of recognition.”2 3 Article 42 is applicable both in cases that proceed after an application

under Article 39.2. and in cases where the question of recognition is of an incidental character.3 4 The court of recognition can only stay the proceedings if an appeal

against the decision of the court of origin has been lodged. Thus the proceedings cannot be stayed only because the time limit for appeal against the decision in the court of origin has not yet expired.4 5 The proceedings can only be stayed if an ordinary appeal has been

lodged. The concept “ordinary appeal” has an autonomous European definition, not a national one according to the internal law in either the State of origin or the State of recognition. An appeal is ordinary if 1) it may result in the annulment or amendment of the original judgment and 2) there is a specific time period for appealing, which starts by virtue of the judgment.5 Appeals, which are not bound by such a time limit, are not ordinary appeals. An appeal can be ordinary even if it is subject to leave of appeal from the court of Appeal in the State of origin.6 6 To stay the proceedings is subject to the court’s discretion. The Article

1 2 3 4 5 6

International Diamond v Riva (C-43/77). Magnus/Mankowski p. 729. Magnus/Mankowski p. 726. Magnus/ Mankowski p. 725. Industrial Diamond v Riva, (C-43/77). Magnus/Mankowski p. 727.

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Article 42 paras. 7, 8; Article 43 paras. 1, 2

uses the word “may” and not “shall” (compare Article 53). That means that a party cannot claim a right to have the proceedings stayed.7 However the court may stay the proceedings on its own initiative.8 This is logical since the defendant often will not know about the application for recognition or enforcement at this stage and is therefore not in a position to apply for the suspension of the proceedings. The court of recognition should be able to stay the proceedings “when- 7 ever reasonable doubts arise with regard to the fate of the decision” in the State of origin.9 Given the difficulties of such an examination, the court of recognition should only take into account the probable outcome of the appeal proceedings, when it is obvious that the decision of origin will not be changed i.e. if the appeal is frivolous.10 When the court of recognition decides to stay the proceedings it is not 8 necessary to limit the stay for a certain time period. Rather it is normal to stay the proceedings until the decision of origin is final (res judicata) in the State of origin.11

Article 43: Enforceability Decisions given in a Member State and enforceable in that State shall be enforceable in another Member State when, on the application of any interested party, they have been declared enforceable there in accordance with the procedure provided for in Articles 45 to 58.

Article 43 is based on Article 38.1 of the Brussels I Regulation.

1

The basic idea behind Article 43 is that the EU is a legally unified ter- 2

7 8 9 10 11

Magnus/Mankowski p. 728; Kropholler p. 443. Magnus/Mankowski p. 725. Industrial Diamond v Riva, (C-43/77). Magnus/Mankowski p. 727. Jenard Report No C 59/47.

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Article 43 paras. 3–7

ritory, where there is to be free movement of judgments from one Member State to another.1 3 However a judgment in one Member State is not automatically enforce-

able in another Member State.2 A declaration of enforceability is needed in the State of enforcement, but such a declaration is to be easily obtainable without any review of the substance.3 4 The sole condition for such a declaration is that the judgement is en-

forceable in the State of origin,4 but it is not necessary that the judgment is not able to be appealed.5 This means that a change in the status of enforceability of the judgment in the State of origin (such as staying or revocation) may have repercussions in the State of enforcement.6 5 An application for a declaration of enforceability can be made by “any

interested party”. Normally that means the winning plaintiff in the State of origin, but it can also be a defendant who has been successful in a counter-claim or for a claim for costs in the proceedings.7 An “interested party” may also be someone who has succeeded to the claim (general successor) or who has done so by way of an assignment or a subrogation (particular successor).8 6 Note that Article 43 is solely about enforceability, not about the actual

execution that can follow on a declaration of enforceability. The actual execution will only follow national law in the State of enforcement.9 7 If a judgment of a non-Member State has been declared enforceable in

Member State A (This would have to be under the national law in 1 2 3 4 5 6 7 8 9

Magnus/Mankowski p. 747. Magnus/Mankowski p. 747. Magnus/Mankowski p. 748. Magnus/Mankowski p. 746. Magnus/Mankowski p. 749. Magnus/Mankowski p. 748. Magnus/Mankowski p. 748. Gaudemet-Tallon p. 460; Magnus/Mankowski p. 748. Kropholler p. 446-447.

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Article 44 paras. 1–4

Member State A, since of course Article 43 in the Succession Regulation is only applicable to judgments of Member States), such a decision cannot be declared enforceable of Member State B under Article 43.10 If an applicant wants the judgment in the non-Member State also to be enforceable in Member State B, he must apply for that enforcement under the national law of Member State B.

Article 44: Determination of domicile To determine whether, for the purposes of the procedure provided for in Articles 45 to 58, a party is domiciled in the Member State of enforcement, the court seised shall apply the internal law of that Member State.

Article 44 is based on Article 59.1 of the Brussels I Regulation (Article 1 62 Brussels Ibis Regulation). The concept “domicile” appears in Articles 45.2, 50.4, 50.5 and 57 in the 2 Succession Regulation. As the concept “habitual residence” is a central concept in the Succes- 3 sion Regulation, one might presume that that concept also should be used to decide whether a party is domiciled in the State of enforcement. However, the concept “habitual residence” in the Succession Regulation has a common European interpretation and is not to be interpreted differently in each Member State under the national rules in each respective State. As the application procedure is to be governed by the national law in 4 the State of enforcement (see Art. 46.1.) it is logical that, for the purpose of the procedure, the question as to where a party is domiciled is interpreted under the national rules in the State of enforcement and not by the common European legal concept “habitual residence”.

10

Magnus/Mankowski p. 733; Owen v Bracco (C-129/92).

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209

Article 44 paras. 5, 6; Article 45 paras. 1–3

5 Concerning the moment of having domicile see the commentary to Ar-

ticle 45 para. 6. 6 Note that the concept “domicile” in Article 44 should not be confused

with the concept of “domicile” used in some Member States (UK, Ireland, Malta and Cyprus).

Article 45: Jurisdiction of local courts 1. The application for a declaration of enforceability shall be submitted to the court or competent authority of the Member State of enforcement communicated by that Member State to the Commission in accordance with Article 78. 2. The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

I. General 1 Article 45 is based on Article 39 of the Brussels I Regulation. 2 The rules in Article 45 means that in the case of an application for en-

forcement of a decision from another Member State the national rules of jurisdiction of local courts in the State of enforcement are not applicable.1

II. Paragraph 1 3 The application for enforcement shall be submitted to the court or com-

petent authority that respective Member State has communicated to the EU Commission in accordance with Article 78. Under the corresponding list noted in the Brussels I Regulation (Annex II Art. 75.a Brussels Ibis Regulation) only courts have been communicated.

1

Magnus/Mankowski p. 752.

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Article 45 paras. 4–8

No “competent authority” that is not a court has been communicated to date.2 In most countries the jurisdiction has been granted to a first-instance 4 court, but in Italy the jurisdiction is granted to a court of appeal. This means that in Italy the same court is both a “court of first instance” for the purposes of Article 45 (application for enforcement) and an appeal court for the purposes of Article 50 (appeal against a decision on the application).3

III. Paragraph 2 For local jurisdiction the applicant is totally free to choose between 1) 5 the court at the place where the defendant has his domicile or 2) the court or courts in the place or places where the defendant has assets against which enforcement is sought. The relevant time for assessing the defendant’s domicile is the day of 6 lodgment of the application. A change of defendant’s domicile after the application is of no relevance.4 The court at the place of enforcement may be several different courts if 7 the defendant has assets at different places.5 Since there is normally more than one local court that has jurisdiction, 8 Jenard has mentioned the risk that an applicant, who has been unsuccessful in one court (i.e. court of domicile) could, instead of availing himself of an appeal in accordance with Article 50, apply to another court (i.e. court of assets) and hope for a different decision there. As the procedure in the first phase of enforcement is ex parte, the defendant might not know that the applicant has already tried unsuccessfully in another court.6 2 3 4

5 6

Magnus/Mankowski p. 752. Magnus/Mankowski p. 753; Renault v Maxicar (C-38/98). Magnus/Mankowski p. 754; Kropholler p. 456; Unibank v Christensen (C-260/ 97). Kropholler p. 457. Jenard Report No C-59/49.

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211

Article 45 paras. 9, 10; Article 46 paras. 1, 2

9 Prorogation agreements as to which local court is competent are not

permitted.7 10 The court to which the applicant makes his application must verify its

jurisdiction on its own motion, as the procedure at this stage is ex parte, that is the defendant does not know of the application and can thus not by himself make any objections as to the jurisdiction of the chosen court.8

Article 46: Procedure 1. The application procedure shall be governed by the law of the Member State of enforcement. 2. The applicant shall not be required to have a postal address or an authorised representative in the Member State of enforcement. 3. The application shall be accompanied by the following documents: (a) a copy of the decision which satisfies the conditions necessary to establish its authenticity; (b) the attestation issued by the court or competent authority of the Member State of origin using the form established in accordance with the advisory procedure referred to in Article 81 (2), without prejudice to Article 47.

I. General 1 Article 46 is based on Article 40 and 53 of the Brussels I Regulation,

however with an important difference in Paragraph 2.

II. Paragraph 1 2 The technical details of the procedure are governed by the national law

of the State of enforcement. As to what may be such technical details, Jenard mentions matters such as the number of copies which must be submitted to the court, the authority to which the application must be 7 8

Droz, para. 560. Gaudemet-Tallon p. 459.

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Article 46 paras. 3–5

submitted and the language in which the application must be drawn up.1 The authority to which the application must be submitted should not be confused with the rules about jurisdiction in Article 45. However in some countries the application must be submitted to a certain authority before being forwarded to the proper court that has jurisdiction.

III. Paragraph 2 In contrast to the Brussels I Regulation, the Succession Regulation does 3 not require that the applicant has a postal address or an authorised representative in the State of enforcement.

IV. Paragraph 3 The application shall also include two documents, a copy of the deci- 4 sion that is to be enforced, and an attestation by the court of origin using a form adopted by the EU Commission (see Article 80). That form is not yet (when this Commentary was written) adopted by the Commission, but it can be anticipated that it will bear a close resemblance to Annex V to the Brussels I Regulation (Annex I and II Brussels Ibis Regulation) (see Article 40.3., 53 and 54 of the Brussels I Regulation = Article 53 Brussels Ibis Regulation). The Annex appears at the end of this text. The two most important pieces of information in that Annex are the date of service of the document instituting the proceedings where decision was given in default of appearance (see Article 40.b of the Succession Regulation), and that the decision is enforceable in the State of origin. (see Article 43 of the Succession Regulation). It is however not necessary that enforcement de facto has been obtained 5 in the State of origin. It is enough that it is formally enforceable in the State of origin.2

1 2

Jenard Report No C 59/49. Gaudemet-Tallon p. 463; Coursier v Fortis Bank (C-267/97).

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213

Article 47 paras. 1–4

Article 47: Non-production of the attestation 1. If the attestation referred to in point (b) of Article 46 (3) is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production. 2. If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be done by a person qualified to do translations in one of the Member States.

I. General 1 Article 47 is based on Article 55 of the Brussels I Regulation.

II. Paragraph 1 2 If the applicant has not, together with the application, already presented

an attestation from the court of origin under Article 46.3.b, the court of enforcement is not obliged to dismiss the application immediately. Theoretically it has three other options, to: 1. set out a time for the applicant in which the applicant can complete his application with the requested attestation, 2. accept an equivalent document instead of the attestation, 3. dispense completely with the demand for the attestation. 3 Article 47 means that the attestation can be dispensed with, but not the

copy of the decision (see Article 46.3.a).1 4 However the normal procedure will certainly most commonly be that the

court of enforcement sets out a specific time (e.g. three weeks) for the applicant to present the attestation. It is relatively simple for the applicant to do so, as the EU Commission has produced a standard form for it. In the Brussels I Regulation in Article 54 (Article 53 Brussels Ibis Regulation) it is stipulated that the court of origin shall issue such an attestation at the request of any interested party. Although there is no

1

Magnus/Mankowski p. 795.

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Article 47 paras. 5–9; Article 48

such express stipulation in the Succession Regulation, it is presumed that the court of origin will also issue such an attestation in succession cases. If the applicant does not present the attestation in the specified time, the 5 court will normally refuse the application, even though it theoretically can be satisfied with an equivalent document or even dispense with its production. If the application has been refused, the applicant can appeal under Ar- 6 ticle 50. The CJEU has accepted that the applicant can also present the attestation in the course of the appeal procedure.2 In the author’s opinion the applicant can also choose to make a new 7 application to the court of enforcement in the first instance after having received the attestation instead of going to the court of appeal.

III. Paragraph 2 The court of enforcement can require that both the decision (Article 8 46.3.a) and the attestation (Article 46.3.b) shall be translated into its own language, but the court does not need to do so if the judge understands the language in which the documents are produced. The translation does not have to be done by an explicitly certified trans- 9 lator.3 It is enough that the person who has done the translation is qualified to do the translation. However, it is recommended that the translation is made with an Apostille, in order that the court of enforcement does not run into uncertainty as to whether the translation is correct.

Article 48: Declaration of enforceability The decision shall be declared enforceable immediately on completion of the formalities in Article 46 without any review under Article 40. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application. 2 3

v.d. Linden v Berufsgenossenschaft (C-275/94). Magnus/Mankowski p. 796.

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215

Article 48 paras. 1–6

1 Article 48 is based on Article 41 of the Brussels I Regulation. 2 At the first stage of the enforcement procedure, the examination of the

court is purely formal.1 Article 48 has the effect that the court should only check that the documents (judgment, attestation) required in Article 46.3 have been lodged. However, the court must also check that the judgment is within the scope of the Regulation (Article 1), and that the application is submitted to a court that has jurisdiction (Articles 4445).2 3 Further, the court must consider whether the decision is enforceable in

the State of origin (Article 43). However this is easily checked since the attestation (Article 46.3.b) must contain information showing that the decision is enforceable in the State of origin.3 4 If the court of enforcement does not have proof of the enforceability in

the State of origin (i.e. if an attestation with such information is not lodged), it has to stay the proceedings of enforcement until such information is submitted (Article 47). Compare that to the case when there is only an application for recognition. In the latter case the court can (but does not have to) stay the proceedings if an ordinary appeal has been lodged in the State of origin (Article 42).4 5 The court of enforcement is not at this stage permitted to examine if

any of the grounds of non-recognition in Article 40 are applicable, not even if the defendant by chance knows of the application and thus has raised some objections with the court.5 6 The court of enforcement at this stage must not inform the defendant

about the application, in order to keep up the element of surprise, so that the defendant does not have the opportunity of withdrawing his assets from any measure of enforcement.6 1 2 3 4 5 6

Gaudemet-Tallon p. 467. Magnus/Mankowski p. 761. Gaudemet-Tallon p. 469. Gaudemet-Tallon p. 468-470. Gaudemet-Tallon p. 467. Jenard Report No C 59/50; Kropholler p. 463.

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Article 48 paras. 7–9; Article 49 paras. 1

The CJEU has held that only judicial decisions that have been the sub- 7 ject in the court of origin to inter pares proceedings can be recognized or enforced. Although that requirement is not explicitly stated in any Regulation, the court reasoned that this requirement follows from the system of principles of the Regulations. It is this guarantee, that in the court of origin both parties have had the opportunity to State their case, that justifies the unilateral character of the first stage of the enforcement procedure.7 The protection of the rights of the defendant also lies therein, in that he 8 can appeal against the decision of enforcement (Article 50), and that no measures of enforcement may be taken other than protective measures during the time of appeal and until any such appeal has been determined (Article 54.3). As the examination of the court of enforcement at this stage is purely 9 formal, the proceedings at this stage can and should be very rapid so that a declaration of enforceability can be made immediately.8

Article 49: Notice of the decision on the application for a declaration of enforceability 1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State of enforcement. 2. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the decision, if not already served on that party.

I. General Article 49 is based on Article 42 of the Brussels I Regulation.

7 8

1

Denilauer v. Couchet Frères (C-125/79). Magnus/Mankowski p. 759; Carron v FR Germany (C-198/85).

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217

Article 49 paras. 2, 3; Article 50

II. Paragraph 1 2 The decision on the application shall be brought to the notice of the

applicant regardless of whether there is an affirmative or negative decision.1 For the applicant it is important to be notified both if his application has been granted and if it has been refused. In the first case he needs the notification in order to be able to proceed with the enforcement. (However he must wait in accordance with Article 54.3). In the second case he might want to appeal against the refusal (Article 50.1).2

III. Paragraph 2 3 If the court of enforcement has granted a declaration of enforceability,

this must be served on the defendant. The serving of the declaration will follow national law in the State of enforcement. However the notification is not sufficient and the time for appeal (Article 50.5) will not start to run until the defendant has been validly served, even if it can be proven that he in some other way had knowledge of the declaration.3

Article 50: Appeal against the decision on the application for a declaration of enforceability 1. The decision on the application for a declaration of enforceability may be appealed against by either party. 2. The appeal shall be lodged with the court communicated by the Member State concerned to the Commission in accordance with Article 78. 3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters. 4. If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 16 shall apply even where the party against whom enforcement is sought is not domiciled in any of the Member States. 5. An appeal against the declaration of enforceability shall be lodged within 30 days of service thereof. If the party against whom enforcement is sought 1 2 3

Magnus/Mankowski p. 762. Magnus/Mankowski p. 762. Gaudemet-Tallon p. 471; Verdoliva v van der Hoeven (C-3/05).

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Article 50 paras. 1–3

is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be 60 days and shall run from the date of service, either on him in person or at his residence. No extension may be granted on account of distance. I. General II. Paragraph 1 III. Paragraph 2

1 2 4

IV. Paragraph 3 V. Paragraph 4 VI. Paragraph 5

5 8 9

I. General Article 50 is based on Article 43 of the Brussels I Regulation.

1

II. Paragraph 1 Both parties in the first phase (Articles 46-48) of the proceedings have 2 the right to appeal. The applicant may also do so if a declaration is refused.1 However an interested third party, who was not a party in the first 3 phase, is not allowed to appeal, even if he could have done so under the national law of the State of enforcement.2 He will also not be permitted to appeal to a court of Cassation/Supreme court/(third phase).3 Such a party might have had the opportunity to intervene in the previous process in the court of origin, under the national rules of that country. He may also have the ability under the national law of the State of enforcement to intervene in the later enforcement proceedings as such following the exequatur.4

1 2

3 4

Magnus/Mankowski p. 765. Gaudemet-Tallon p. 476; Deutsche Genossenschaftbank v Brasserie du Pêcheur (C-148/84); Draka v Omnipol (C-167/08). Magnus/Mankowski p. 766. Magnus/Mankowski p. 766.

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219

Article 50 paras. 4–8

III. Paragraph 2 4 The court in which an appeal shall be lodged is found in the list that the

EU Commission sets up in accordance with information from the Member States (Article 78.1.a).

IV. Paragraph 3 5 The proceedings in the second phase (phase of appeal) are described as

“contradictory” i.e. on notice and no ex parte or without notice. This means that all parties must be involved (or at least given the opportunity to be involved). Compare this to the first unilateral phase of the proceedings for enforcement, of which the defendant normally is not aware . The second phase is “contradictory” and on notice even if the application for enforcement in the first phase was rejected solely on formal grounds i.e. lack of correct documentation (Articles 46-47).5 This is a protection for the defendant so that the actual enforcement shall not take place without the defendant having an opportunity to oppose it on the grounds in Article 40. The time under Article 50.5., during which means of actual execution may not be taken, comes to an end when the appeal has been determined. 6 All claims, substantial or formal, may be taken to the court of appeal,6

even additional demands and connected questions.7 However the court of appeal shall not be burdened with objections or considerations which could have been considered in the court of origin.8 7 The burden of proof that grounds for non-recognition exists rests with

the defendant.9

V. Paragraph 4 8 If the application was refused in the first phase and the applicant ap5 6 7 8 9

Gaudemet-Tallon p. 477; PvK (C-178/83). Magnus/Mankowski p. 768. Gaudemet-Tallon p. 474. Magnus/Mankowski p. 767. Gaudemet-Tallon p. 474.

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Article 50 paras. 9–11

peals, the court of appeal must check that the measures in Article 16 to protect the defendant have been taken, even if the defendant is not domiciled in a Member State.10

VI. Paragraph 5 There are two distinct sets of time-limits in which to appeal, depending 9 on whether the appeal is lodged by the claimant or by the defendant. If the claimant lodges the appeal there is no time-limit set out in the Regulation. In this case the national law of the State of enforcement must be applied.11 If the defendant lodges the appeal there are three different situations: 1. The defendant is domiciled in the State of enforcement. 2. The defendant is domiciled in another Member State. 3. The defendant is domiciled in a non-Member State. In the first of these three cases the defendant lodging has a time limit of 30 days, in the second case 60 days. In those two cases no extension may be granted on account of distance. In the third case the ordinary timelimit is only 30 days, but in this case an extension on account of distance may be granted in accordance with the law of the State of enforcement.12 For the time-limit to start running it is not enough that the defendant 10 has knowledge of the declaration, but it must have been formally served on him.13 If the defendant is domiciled in another Member State than the State of 11 enforcement, he must be served either in person or at his residence, even if the national law of the State of enforcement would have accepted another form of service. Service at the residence is accepted if the document is given to a person there that according to the law in the State of enforcement is authorized to receive a document that shall be served.14 10 11 12 13

Gaudemet-Tallon p. 478. Gaudemet-Tallon p. 477. Jenard Report No C-59/51. Verdoliva v Van der Hoeven (C-3/05).

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221

Article 50 paras. 12–14; Article 51 paras. 1–3

12 The time-limits in the Regulation may not be circumvented by other

time-limits in the national law of the State of enforcement.15 13 No actual measures of execution may be taken until the time for appeal

has passed or, in the case of an appeal, until such an appeal has been determined (Article 54.3). 14 However, protective measures (Article 54.1-2) may remain in force

whilst at the same time actual execution is suspended.16

Article 51: Procedure to contest the decision given on appeal The decision given on the appeal may be contested only by the procedure communicated by the Member State concerned to the Commission in accordance with Article 78.

1 Article 51 is based on Article 44 of the Brussels I Regulation. 2 The procedure to contest a decision given on appeal can only be in the

manner in which each Member State has communicated to the EU Commission in accordance with Article 78.1.b. (Annex). In the Brussels I Regulation corresponding national procedures were noted in Annex IV (Art. 75.c Brussels Ibis Regulation). 3 Article 51 cannot be extended to enable contests of other decisions than

those given under Article 50, for instance a decision given on a preliminary order (Article 54.1.)1 The concept of “judgment given on the appeal (against the decision authorising enforcement)” must be interpreted strictly, that is only applying the substance of the appeal.2 This is in order to prevent that an excessive number of avenues of appeal that might be used by the losing party purely as delaying tactics.3 14 15 16 1 2

Kropholler p. 471. Hoffman v Krieg (C-145/86). Magnus/Mankowski p. 767. Brennero v Wandel (C-258/83). Dalfsen v Van Loon (C-183/90).

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Article 51 paras. 4, 5; Article 52 paras. 1–4

Interested third parties are precluded from intervening in the proceed- 4 ings by the means of an appeal under Article 51.4 An appeal under Article 51 does not automatically have suspensive ef- 5 fects. This means that an applicant, who has obtained a confirmation on appeal of the declaration of enforceability, can proceed with the actual means of enforcement.5

Article 52: Refusal or revocation of a declaration of enforceability The court with which an appeal is lodged under Article 50 or Article 51 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Article 40. It shall give its decision without delay.

Article 52 is based on Article 45.1 of the Brussels I Regulation.

1

The central word in Article 52 is “only”. That means that there are very 2 narrow limits1 for a court in the State of enforcement to refuse or revoke a declaration of enforcement. This applies both to the court of first appeal (Article 50) and the court of final appeal (Article 51).2 The limits are set by the four grounds of non-recognition specified in 3 Article 40. No other grounds are permitted.3 In particular, no refusal of recognition is permitted “solely on the 4 ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been seised of the dispute”.4 3 4 5 1 2 3 4

Jenard Report No. C 59/52. Sonntag v Waidmann (C-172/91). Gaudemet-Tallon p. 484. Magnus/Mankowski p. 772. Magnus/Mankowski p. 773. Prism v Van der Meer (C-139/10). Sonntag v Waidmann (C-172/91).

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Article 52 paras. 5–8; Article 53

5 Under no circumstances may the courts in the State of enforcement re-

view the foreign judgment as to its substance. (Article 41).5 6 The courts in the State of enforcement shall start from the presumption

that the foreign judgment deserves to be enforced. Refusing or revoking a declaration must be considered as an exception.6 This means that the party against whom enforcement is sought must meet the standard of full proof that a ground of non-recognition applies.7 7 The distinction between refusing and revoking has no material conse-

quence. Refusal of a declaration of enforceability may be applicable in the court of first appeal if the court of enforcement, after the formal check under Article 48, has dismissed the application.8 Revoking a declaration of enforceability will apply if a) the court of first appeal, after an appeal under Article 50, finds that a ground of non-recognition applies, b) the court of final appeal (court of cassation) changes a judgment in the court of first appeal, in which a declaration of enforceability has been granted or upheld. 8 In Article 52 it is stipulated that both the court of first appeal and the

court of final appeal shall give its decision without delay, but no specific time limit is set out.

Article 53: Staying of proceedings The court with which an appeal is lodged under Article 50 or Article 51 shall, on the application of the party against whom enforcement is sought, stay the proceedings if the enforceability of the decision is suspended in the Member State of origin by reason of an appeal.

5 6 7 8

Dalfsen v Van Loon (C-267/97). Magnus/Mankowski p. 773. Magnus/Mankowski p. 774. Magnus/Mankowski p. 773.

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Article 53 is based on Article 46.1 of the Brussels I Regulation, however 1 with very important differences. It is important to understand that a decision might be enforceable in the 2 State of origin (see Article 43), although it still is subject to appeal in that State.1 Article 53 is only applicable when there is a first appeal (Article 50) or a 3 final appeal (Article 51).2 The proceedings can only be stayed under the Article 53, if there is an 4 application for staying from the party against whom enforcement is sought. This means that the court cannot stay the proceedings on its own motion (compare Article 42).3 If the conditions for staying are fulfilled the court must stay the pro- 5 ceedings. Compare that to Article 42, where the court has a discretion as to whether to stay the proceedings or not. The court can only stay the proceedings if the enforceability of the de- 6 cision is suspended in the State of origin because of an appeal in that State. This means that it is not sufficient that an appeal in the State of origin has been lodged (compare Article 42) or if the time for an appeal in that State has not yet expired. However, by virtue of Article 53, the appeal in the State of origin must 7 not be of the “ordinary” type (compare Article 42). An order to stay the proceedings under Art. 50 is not a type of a deci- 8 sion that can be contested under Art. 51.4 It is, however, important to understand that the defendant’s rights have 9 some protection under Article 54.3.

1 2 3 4

Magnus/Mankowski p. 775. Magnus/Mankowski p. 776. Magnus/Mankowski p. 776. Magnus/Mankowski p. 779; SISRO v Ampersand (C-432/93).

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Article 54 paras. 1–3

Article 54: Provisional, including protective, measures 1. When a decision must be recognized in accordance with this Chapter, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement without a declaration of enforceability under Article 48 being required. 2. The declaration of enforceability shall carry with it by operation of law the power to proceed to any protective measures. 3. During the time specified for an appeal pursuant to Article 50 (5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

I. General 1 Article 54 is based on Article 47 of the Brussels I Regulation. 2 The purpose of Article 54 is to strike a balance between the rights of the

two parties. On the one hand the applicant should be protected against the defendant moving his assets out of the reach of the legal authorities in the State of enforcement. On the other hand the defendant, who has not been a party on notice to the first phase of the proceedings for enforcement (Article 48), should be protected against irreversible measures of execution, e.g. his assets are sold before he can appeal against the declaration of enforcement (Article 50).1 3 Provisional protective measures do not require that the judgment in the

State of origin is res judicata, that is that it cannot any longer be subject to an appeal.2

1 2

Magnus/Mankowski p. 782; Jenard Report No C 59/52. Magnus/Mankowski p. 782.

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Article 54 paras. 4–7

However if the judgment in the State or origin is annulled, provisional or protective measures cannot be granted, or if already granted, must be lifted.3 An applicant can also apply for provisional or protective measures if his 4 application for a declaration of enforceability has been denied, but he has appealed against that decision (Article 50).4 Under the national law in some Member States a provisional or protec- 5 tive decision is subject to a confirmatory procedure. That is because the procedure for obtaining provisional or protective measures is normally summary in character, if such measures are granted prior to “contradictory” on notice litigation. There might therefore be a risk of parties obtaining vexatious protective measures. In the case of provisional or protective measures adopted under Article 54, those are based on a judgment in the State of origin. Thus there is no need for any confirmatory procedure.5

II. Paragraph 1 Provisional or protective measures can be applied for even before the 6 applicant has lodged an application for enforcement (Article 46). It may be sensible to do so, in several Member States, if the applicant is uncertain as to where the defendant has assets. After the provisional or protective measures have or have not been obtained, the applicant can then decide in which State or States it is sensible to proceed with an application for a declaration of enforceability.6 Provisional or protective measures can be applied for even if a court has 7 stayed the proceedings under Article 53.7

3 4 5 6 7

Magnus/Mankowski p. 783. Gaudemet-Tallon p. 481. Capelloni v Pelkmans (C-119/84). Magnus/Mankowski p. 784. Magnus/Mankowski p. 783.

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Article 54 paras. 8–13

8 Note the difference between Article 19 and Article 54. Article 19 is

about measures before there is a judgment in the State of origin and Article 54 about measures after such a judgment is adopted. 9 What kind of protective measures (i.e. sequestration, seizure, freezing)

may be obtained and the procedure for deciding on such measures will follow the national law in the State of enforcement. However such national rules may not intervene with the principles of the EU Regulation (see also Article 54.2).8

III. Paragraph 2 10 After the applicant has obtained a declaration of enforcement he has an

automatic and unconditional right to proceed to obtain protective measures. (Compare Article 54.1 which is about the rights of an applicant before a declaration has been issued.)9 The applicant is under no obligation to obtain a specific or confirmatory authorisation under the national law of the State of enforcement.10 Neither does he have to prove that the case calls for prompt action or that he has a probable case, even if that is required under the national law.11 11 It is not necessary to serve the declaration on the defendant before ap-

plying for protective measures.12

IV. Paragraph 3 12 Article 54.3 is one of the central provisions in Chapter IV with the pur-

pose of protecting the defendant from irreversible measures of execution during the time for appeal. 13 The CJEU has ruled that the applicant may proceed with protective 8

9 10 11

12

Magnus/Mankowski p. 783 and 785; Jenard Report. No C 59/52; Kropholler p. 487 and 489; Capelloni v Pelkmans (C-119/84). Magnus/Mankowski p. 784. Capelloni v Pelkmans (C-119/84). Jenard Report No.C 59/52; Magnus/Mankowski p. 784; Gaudemet-Tallon p. 482. Magnus/Mankowski p. 784.

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Article 54 para. 14; Article 55 paras. 1–3

measures until the expiry of the period prescribed in Article 54.3 even though the national law may have other time restrictions.13 Once an appeal has expired or an appeal has been disposed of, the ap- 14 plicant does not need to await until the time for lodging a final appeal has expired before he proceeds to execution.14 However, it is presumed that the final court of appeal might under national law in a specific decision stay an execution, until it has ruled on the final appeal. If that was not possible, a revocation by the final court of appeal could be worthless if the assets had already been sold or distributed and moved out of the State of enforcement.

Article 55: Partial enforceability 1. Where a decision has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them. 2. An applicant may request a declaration of enforceability limited to parts of the decision.

I. General Article 55 is based on Article 48 of the Brussels I Regulation.

1

When Article 55.1. is applicable the court is only obliged to give a de- 2 claration of partial enforceability even without an application.1

II. Paragraph 1 The court of enforcement shall give a declaration of partial enforceabi- 3 lity when for instance some parts of the judgement of origin are inside the scope of the Succession Regulation and some are outside.2 13 14 1 2

Cappeloni v Pelkmans (C-119/84). Magnus/Mankowski p. 786; Brennero v Wendel (C-258/83). Kropholler p. 491. Magnus/Mankowski p. 786; Kropholler p. 491.

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Article 55 paras. 4–8; Article 56

4 A declaration of partial enforceability shall also be given if the court of

appeal (Article 50) finds that some part of the judgement of origin is against public policy (Article 40.a) whilst other parts are not.3 5 If the decision of origin concerns assets in several countries the court of

enforcement shall give a declaration of partial enforceability just for those assets that are situated in the State of enforcement. 6 A declaration of partial enforceability can only be selective, not reduc-

tive. This means that the refusal to give enforcement can only apply to some parts of the decision of origin. The court cannot give enforcement to a reduced amount in one part of the decision of origin (compare Art. 55.2). To do that would be to review the decision of origin as to its substance, which is prohibited under Article 41. Of course the court of enforcement may also not in any way increase the amount of the particular assets decided in the decision of origin.4

III. Paragraph 2 7 A declaration of enforceability may also be requested, if some parts of

the decision of origin are already satisfied.5 8 The applicant may request a declaration of partial enforceability even if

the decision of origin does not consist of several separate parts (compare Art. 55.1). However the judgment must be divisible, i.e. a decision for a certain amount of money. Such partial enforceability can be the case when there has been partly payment or partly enforcement in another country.6

Article 56: Legal aid An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in 3 4 5 6

Jenard Report No C 59/53. Gaudemet-Tallon p. 489. Magnus/Mankowski p. 787. Kropholler p. 491.

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Article 56 paras. 1–7

any proceedings for a declaration of enforceability, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State of enforcement.

Article 56 is based on Article 50 of the Brussels I Regulation.

1

In some Member States the costs for the proceedings for enforceability 2 can be rather expensive. For a person with very limited means, it can therefore be essential that he can also obtain legal aid in the State of enforcement.1 The rules in Article 56 includes legal aid in all stages of the proceedings 3 for enforceability,2 but this is not extended to the stage of actual enforcement (execution).3 In the latter case a person with limited means might obtain legal aid only in accordance with the national rules in the State of enforcement. An applicant who has benefited from legal aid in the State of origin, is 4 automatically entitled to legal aid in the State of enforcement without the need to go through any special procedure for obtaining legal aid.4 If he had to go through such a special procedure the need for rapid action and the element of surprise could be lost.5 Even if the applicant has only obtained partial legal aid in the State of 5 origin, he is still entitled to full legal aid in the State of enforcement.6 However the type of legal aid and the extent of “full legal aid” in the 6 State of enforcement is determined by the national rules in that State.7 Article 56 does not exclude the possibility for the applicant to be gran- 7 1 2 3 4 5 6 7

Gaudemet-Tallon p. 465-466. Magnus/Mankowski p. 789. Jenard Report No C 59/54. Gaudemet-Tallon p. 465; Magnus/Mankowski p. 790. Jenard Report No. C 59/54. Magnus/Mankowski p. 790. Magnus/Mankowski p. 790.

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Article 57 paras. 1–3; Article 58

ted legal aid in accordance with the national laws in the State of enforcement. Thus if the applicant was not granted legal aid in the State of origin, the provisions in Article 56 do not prevent him from being entitled to legal aid in the State of enforcement under its national law if the rules in that State are more generous or if he has become more impoverished since the date of the proceedings in the State of origin.8

Article 57: No security, bond or deposit No security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition, enforceability or enforcement of a decision given in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the Member State of enforcement.

1 Article 57 is based on Article 51 of the Brussels I Regulation (Article 56

Brussels Ibis Regulation). 2 Article 57 only prohibits discrimination against an applicant if he is not

a national of or domiciled or resident in the State of enforcement. It does not preclude security being required by the national law on other grounds, which have the same requirements for a national or a person domiciled or resident in that State.1 3 The provisions in this Article are not limited to applicants who are na-

tionals of or domiciled or resident in a Member State.2

Article 58: No charge, duty or fee In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State of enforcement. 8 1 2

Magnus/Mankowski p. 790. Magnus/Mankowski p. 791. Magnus/Mankowski p. 791.

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Article 58 paras. 1–3; Article 59

Article 58 is based on Article 52 of the Brussels I Regulation.

1

This Article does not prohibit Member States from imposing fixed fees, 2 that are a charge for the services provided by the court of enforcement.1 However those fees may not be at such a high level, that would run counter to the purpose of the Regulation to facilitate the free movement of judgments.2 The provisions of Article 58 are solely about fees payable to the court, 3 and not about fees payable to lawyers.3

Chapter V: Authentic Instruments and Court Settlements Article 59: Acceptance of authentic instruments 1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned. A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 81(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin. 2. Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State as long as the challenge is pending before the competent court. 3. Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction 1 2 3

Gaudemet p. 466. Magnus/Mankowski p. 792; Wolf v Cox (C-42/76). Magnus/Mankowski p. 792.

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Article 59 paras. 1–3

under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court. 4. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of succession, that court shall have jurisdiction over that question.

I. General points 1 The system of recognition and enforcement of succession decisions

from a Member State – under Arts. 39-58 – is to a large extent modelled on the corresponding provisions of Brussels Ibis Regulation. Chapter V, however does go further with regard to authentic instruments. Chapter V is very innovative relative to other EU Regulations, reflecting the important role that authentic instruments play in the administration of estates in the EU. 2 Amongst the authentic instruments employed by different national suc-

cession systems are: a notarial form Will, a holographic handwritten Will dated and signed by the testator but afterwards handed to a notary, the record of the publication of a holographic will, a full acceptance of a succession, an acceptance limited to debts up to the value of the assets, a waiver of succession rights, a deed of estate distribution or partition, an inventory deed, an acte de notorieté etc. 3 Art. 3 (1) i) of the Regulation defines an authentic instrument as “a

document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument, and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin”.

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Article 59 para. 4

From this definition1 and, in particular, from the reference also made by the first sentence of Art. 59 (1), to the evidentiary effects of authentic instruments, one can infer that Chap. V, within the Member States, guarantees the circulation of authentic instruments whose origin may be attributed in toto to a public official.2 However, this is only the case if the public official’s contribution is not limited to a Certification of the authenticity of the signatures of the parties, but also includes a Certification as to the essential content of the instrument, for which the official assumes full responsibility and for the check made as to validity (i.e. a check as to the conformity of the instrument with the law that governs it).3 The Regulation sets out that instruments from a Member State satisfy- 4 ing these conditions, being principally, if not exclusively, instruments acknowledged by civil law4 notaries – may not only be enforced in other Member States (as initiated by Art. 50 of the Brussels Convention of 27 September 1968)5 but must equally be “accepted” by them.

1

2

3

4

5

Common to other sources of European international private law: cf Art. 4, n. 3 a), Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims, and Art. 2, n. 1, n. 3), Maintenance Obligations Regulation. These provisions are based on the decision of the EU Court of Justice in the Unibank case n. C-260/97 of 17 June 1999. In other words, a third party vested with public authority or to whom authority is delegated. Cf. Pasqualis, Attuazione ed esecuzione forzata in Italia degli atti pubblici provenienti dall’estero, in Trattato di diritto civile del Consiglio Nazionale del Notariato de Perlingieri, I, 4, Lupoi, Vullo, Civinini, Pasqualis, Giurisdizione italiana. Efficacia di sentenze e atti stranieri, Naples, 2007, 590 s. The essential characteristics of civil law notaries are a university education in law, their impartial position and, third, their duty to make available, if required their professional services and the duty to apply the law: cf. Renteria Arocena, Manuel de droit privé et de justice préventive en Europe, Pamplona, 2007, cap. I, L’organisation et la fonction des notaires, passim. This tradition has been repeated in several places: cf. Article 57 of Brussels Ibis Regulation, Article 46 of Brussels IIbis Regulation, Article 25, Regulation EC 805/2004 and Article 48, 1, Regulation 4/2009 (EC).

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Article 59 para. 5

II. Paragraph 1 5 The use of the generic term “acceptance”, which appears in the heading

of Art. 59,6 has been animatedly debated in academic circles because of the use of the term “recognition” in the corresponding provision of the Draft Proposal.7 Art. 59 (1), sub-para. 1 states that the authentic instrument shall, in the Member State of enforcement have the “same evidentiary effect” as the instrument has in the Member State of origin, being a greater evidentiary effect than that of a private document. These evidential effects consist – at least as a general rule – in the fact that the authenticity of the public deed cannot be contested if not by means of particular legal procedures. This mirrors, for example, Article 2700 of the Italian civil code, which gives authentic instruments an absolute effect without condition of proof. The provenance of the instrument from the official who, in signing it, identifies himself as its author, the form of the wording of the authentic instrument, and, particularly, the attestation of the place where and the date when the instrument was finalised, the declarations of the parties which the official attests to having received or the circumstances which are attested to have arisen in front of, as well as other facts which the official declares to have executed are not matters for the discretion of a court. In effect, the truth of these matters can only be challenged under a specific ground, such as the querela di falso (allegation of forgery of public documents) referred to in Articles 221 et seq. C.P.C..8

6 7

But not in the body of the Article, which indicates its lack of legal definition. Cf. Max Planck Institute for Comparative and International Private Law, Comments on the European Commission’s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, RabelsZ, 2010, 523 ss., 669 ss., and the subtle response Nourissat, Callé, Pasqualis, Wautelet, Pour la reconnaissance des actes authentiques au sein de l’espace de liberté, de sécurité et de justice, in Petites affiches 2012, 6 ss.

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Article 59 para. 6

The greater effects that authentic instruments created in one Member 6 State might have in other Member States indicate a growing awareness of their substantial equivalence. Total agreement in this area of mutual acceptance9 is, however, hampered by the fact that certain Member States do not require notarial deeds10 or give them lesser effects than that accorded in most European legal systems.11 In these States, the acceptance of foreign notarial deeds, having the prima facie evidential effects listed above, could lead to a substantial change in the local evidential rules.12 To avoid this, Art. 59 (1), sub-para. 1 requests to do a comparison between the law of the Member State of origin and the law of the Member State of enforcement so that, if the evidential effects of are different in the two States, the evidential effects in the second State are limited to those compatible with the local law. Such a comparison may restrict the effects which the authentic instrument produces across borders. If the legal system of a Member State does not require a notarial deed, the question arises as to whether there may be an obligation “of acceptance”. Art. 59 gives authentic instru8

9

10

11

12

Effects and corresponding remedies are envisaged in the law of numerous Member States cf, again, Renteria Arocena, lc. cit.. On the basis of which – according to the instructions given by Court of Justice (EC) 120/78 of 20 February 1979 concerning the well-known case Cassis de Dijon – legal situations that arise legitimately in a Member State under the provisions that are in force there, in the absence of specific European rules that lay down minimum standards or controls, must be able to circulate freely in the European legal area. For the implications of the principle in the field of private international law, cf Picone, Diritto internazionale privato comunitario e pluralità dei metodi di coordinamento tra ordinamenti, in Picone (ed.) Diritto internazionale privato e diritto comunitario, Padova, 2004, 485 ss. This is the case in Cyprus where the function of authentication of documents (only) is allocated to officials of the Ministry of the Interior. This is what takes place, for example, for Finnish (julkinen notaari) and Swedish (notarius publicus) notaries, whose authority is limited to the authentication of signatures and documents (for full information, cf. the pages concerning legal professions on the Internet site of “Réseau judiciaire européen en matière civile et commerciale”, at the address http://ec.europa.eu). Conforms more or less completely to the principle of the investigation of the evidence before the judge.

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Article 59 para. 7

ments a minimum set of effects, that is, “the most comparable effects” to the evidential effects under the law of the State of enforcement. In such a case, acceptance of the foreign authentic instrument, at least so far as the evidential effects that the local law would accord to a private deed with verified signatures, would be consistent with this approach. Conversely, it is also possible that the law of the Member State of enforcement, accords such instruments evidential effects more extensive than those under the law of the Member State of origin. This has no consequences, since the most that Art. 59 can give the authentic instrument are “the same evidentiary effects” as those of the Member State of origin. 7 In explicitly regulating the cross-border evidential effects of authentic

instruments, the Regulation seems to disregard their other specific effect being their suitability for transcription or recording in public registers. This is underlined by, on the one hand, the absence of any provision similar to Art. 69 (5) (which makes the ECS a “valid document for the recording of succession property in the relevant register of a Member State”) and, on the other hand, the presence of Art. 1 (2) subpara. 1), (which excludes from the scope of the Regulation the “recording in a register of rights in immovable or movable property, including the legal requirements for such recording”). It must be noted, however, that, according to Recital 18, in “order to avoid duplication of documents, the registration authorities should accept such documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation”. This Recital, contrary to first expectations, might open a different and new approach. The formal and substantive conditions for authentic instruments to be registered in public registers is governed by the local law of the Member State.13 National provisions refusing the registration of instruments from other 13

According to Recital 18, it is for “the authorities involved in the registration to ask the person applying for registration to provide such additional information, or to present such additional documents, as are required under the law of the Member State in which the register is kept, for instance information or documents relating to the payment of taxes. The competent authority may indicate to the person applying for registration how the missing information or documents can be provided”.

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Article 59 paras. 8–10

Member States must be considered contrary to European law, irrespective of whether or not they satisfy the local conditions required (such as, for example, Article 710-1, 1 of the French Civil Code).14 Finally, the second sub-paragraph of para. 1 contains an important 8 practical provision. This gives the person wishing to use an authentic instrument in another Member State, the right to ask the notary who prepared the authentic instrument to provide a standard form, created under the consultative procedure of Art. 81 (2), describing the specific evidential effects of the authentic instrument.

III. Paragraphs 2 and 3 Under the final phrase of Art. 59, para. 1, the Member States are obliged 9 to “accept” the authentic instrument “provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned”. To this traditional restriction on the circulation of authentic instru- 10 ments, are added two more, namely a challenge before the judicial authority “concerning the authenticity” of the instrument (para. 2) or “relating to the legal acts or legal relationships recorded in an authentic instrument” (para. 3). “The authentic instrument challenged shall not produce any evidentiary effect” outside the Member State of origin, as long as the challenge is pending. The distinction between these two categories of challenge is between that of the court with jurisdiction and the applicable law. Specifically, the first category is subject to the jurisdiction of the “courts of the Member State of origin and shall be decided upon under the law of that State”. The second is given to the court with jurisdiction under Chap. II and is resolved by applying the law determined by the private international law rules of Chap. III. It remains to be seen which challenges 14

This corresponds to the recent practice in Member States: cf the Spanish Tribunal Supremo 19 June 2012 n. 998/2011 which confirms the declaration of nullity of the Resolución de la Dirección General de los Registros y del Notariado of 7 February 2005 which had denied the registration in Spain of an instrument of a German notary for the sale of immovable property in Tenerife.

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Article 59 para. 11

will fall into one category and which in the other. It should be borne in mind that challenges concerning “authenticity” are directed at inherent defects in the authentic instrument such as those involving breaches of the basic rules on notarial function15 or the wording of the instrument. The presence of defects implies that the notarial deed loses the essential characteristics that make it an expression of the sovereign power of the State. This justifies giving jurisdiction to the courts and law of the relevant State. On the other hand, there is no reason to remove the general rules as to challenges relating to the material content of the instrument, which must conform to the applicable succession law.16 Thus, if legal relationships recorded in the authentic instrument infringe this law, it is logical for any obligation to make corrections to be given to the courts with jurisdiction to enforce the lex successionis. 11 It remains to be decided which court will have jurisdiction to hear any

challenges relating to defects other than those defined by Art. 59, and as to which law will apply, as well as the effect on the circulation of the instrument. There is no doubt that, for matters excluded from the scope of the Regulation (such as, for example, the legal incapacity of a party), these challenges must be heard by the court and applying the law under the local private international law rules. On the other hand, the fact that there is a challenge of this kind justifies a Member State in not “accepting” the authentic instrument in question. Since, the Regulation only accepts the circulation of authentic instruments that are free from defects, there is no reason to differentitate between the defects that may be relevant. To sum up, this logic leads to the conclusion that the cross-border evidential effects of an authentic instruments are complicated when a legal 15

16

Such as, for example, those obliging the notary to practice only in a particular territorial area. Which confirms the fact that the notary is subject to uniform private international law rules and consequently the obligation to apply the lex successionis. In theory, this has already long since been accepted cf: Damascelli, Sul dovere di conoscenza della legge straniera applicabile da parte del notaio, in Professione e Ricerca. Attualità e problematiche in materia di nullità relative, Monopoli, 2009, p. 309 ss.; Callé, Le notaire, les actes notariés et le droit international privé, Mélanges à la mémoire de Patrick Courbe, 2012, 76 ss.

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Article 59 paras. 12, 13; Article 60

decision – even if it is not definitive – has established a challenge on the basis of defects. It remains to be clarified as to cases of “non-acceptance” of the authen- 12 tic instrument by the Member State of enforcement, even if it fulfils all the conditions required by Art. 59. The Regulation does not deal with this point. However it would seem logical that someone intending to use the instrument but met with a refusal may by analogy, as a main or an incidental question, ask for the instrument to be “accepted” under the provisions of Art. 39 (2 and 3).

IV. Paragraph 4 A challenge relating to legal acts or legal relations contained in an au- 13 thentic instrument may be made as a main or as an incidental question before a court of a Member State being used by the interested parties to settle a dispute concerning a succession. In this case, by virtue of Article 59 (4) of the Regulation, a challenge relating to an authentic instrument will also be within the jurisdiction of the court hearing the main case.

Article 60: Enforceability of authentic instruments 1. An authentic instrument which is enforceable in the Member State of origin shall be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58. 2. For the purposes of point (b) of Article 46(3), the authority which established the authentic instrument shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 81(2). 3. The court with which an appeal is lodged under Article 50 or Article 51 shall refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument is manifestly contrary to public policy (ordre public) in the Member State of enforcement.

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Article 60, 61 paras. 1, 2

Article 61: Enforceability of court settlements 1. Court settlements which are enforceable in the Member State of origin shall be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58. 2. For the purposes of point (b) of Article 46(3), the court which approved the settlement or before which it was concluded shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 81(2). 3. The court with which an appeal is lodged under Article 50 or Article 51 shall refuse or revoke a declaration of enforceability only if enforcement of the court settlement is manifestly contrary to public policy (ordre public) in the Member State of enforcement.

I. General points 1 The rules on the enforceability of authentic instruments and court set-

tlements, established by Arts. 60 and 61, do not introduce any important addition to European law already in force, reproducing almost word for word Articles 57 and 58 of the Brussels I Regulation (Articles 58, 59 and 60 Brussels Ibis Regulation), again requiring, for the two types of instrument, the prior issue of an exequatur. Before considering this aspect, it should be noted that the Regulation contains a definition of court settlements. Art. 3 (1) h) defines them as “a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of a proceedings”. The first category includes agreements resulting from extra-judicial mediation that are afterwards approved by the court; the second are settlements made directly before the court. 2 Arts. 60 and 61 do not set out as to the particular enforceable effects

that can be reproduced abroad. The question is not without practical importance, given that under certain legal systems the relevant instruments not only enable the compul242

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sory appropriation of assets of the debtor, but also the delivery or the return of assets (see for example, Art. 474 sub-paragraph 3, Italian C. P.C.). However the question arises as to whether authentic instruments and court settlements are given the same enforceable effects as in the Member State of origin or only those granted to such instruments by the law of the Member State of enforcement.1 Rules on the subject of “acceptance” of authentic instruments suggest the latter is correct but don’t seem it can be adopted in subjecta materia.

II. Paragraphs 1 and 2 The rules under Arts. 60 and 61 for obtaining a declaration confirming 3 the enforceability of authentic instruments and court settlements are identical. In each case, the applicant must present a claim to the court with juris- 4 diction under Arts. 44 and 45, together with an attestation issued by a notary2 and, respectively, a Certificate from the authority that has issued the official decision or before which the settlement has been reached, worded in the standard form, created under the consultative procedure of Art. 81, as previously mentioned. The precondition for an authentic instrument or a court settlement 5 being enforceable is that they are already enforceable in the Member State of origin, and that should be clear from the information annexed to the application.

1

2

For Articles 57 and 58 of Regulation n° 44/2001, Kropholler/von Hein, Europäisches Zivilprozessrecht9, Frankfurt am Main, 2011, 689 ss. interpret the matter in this way In effect, this is different to the Brussels I Regulation, which in Article 57.4 (Article 60 Brussels Ibis Regulation) entrusted the issuing of the Certificate to the authority designated by a Member State, an authority that is not necessarily the notary who drew up the instrument.

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Article 60, 61 paras. 6–9

III. Paragraph 3 6 The only obstacle to enforceability is if the instrument is clearly contra-

ry to public policy in the Member State of enforcement. 7 It is, however, necessary to consider whether with reference to authentic

instruments and to the matter of “acceptance” a challenge to the instrument, should also be added as a potential obstacle. Logically, one could conclude that if a pending challenge complicates the cross-border evidential effects of the instrument, such a challenge ought also to be considered as constituting an obstacle to the enforceable effects (which may be more serious than the ordre public obstacle3). However, two observations point in opposite directions. On the one hand, the absence of any change to the rules on the enforceability of authentic instruments, by comparison with other Regulations, might be an indication that the European legislator did not intend to interfere with existing smoothly working principles. On the other hand, more limitations on the “acceptance” of authentic instruments are justifiable because of the novel character of the rule and of its potential impact on national process law. 8 As with court decisions, this single obstacle to the issue of enforceability

is subject to the procedures and appeals referred to in Arts. 50 and 51. 9 It is reasonable to surmise, notwithstanding the lack of mention in the

Regulation, that it may be possible to appeal against the decision to grant an exequatur not only in the case of a breach of public policy in relation to the authentic instrument or the court settlement concerned, but also on the basis that the instrument does not itself comply with the definition of such instruments provided by the Regulation or that the instrument or settlement is not enforceable in the Member State of origin.4 3

4

For a kind of “hierarchy” among the effects of notarial deeds, cf. Carbone, Il notaio tra regole nazionali ed europee: diritto societario e professioni regolamentate alla prova delle libertà comunitarie, in Il notaio tra regole nazionali ed europee, Actes du XL Congrès national du Notariat, Milan, 2003, 24 ss. In this sense, concerning court settlements, D’Alessandro, Il riconoscimento, l’esecutività e l’esecuzione delle decisioni e delle transazioni giudiziarie in ma-

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Chapter VI

Chapter VI: European Certificate of Succession Bibliography Markus Buschbaum/Ulrich Simon, Die neue EU-Erbrechtsverordnung, NJW (Neue Juristische Wochenschrift) 2012, p. 2393-398 Markus Buschbaum/Ulrich Simon, EuErbVO: Das Europäische Nachlasszeugnis, ZEV (Zeitschrift für Erbrecht und Vermögensnachfolge) 2012, p. 525-530 Heinrich Dörner, Der Entwurf einer europäischen Verordnung zum Internationalen Erb- und Erbverfahrensrecht – Überblick und ausgewählte Probleme, ZEV (Zeitschrift für Erbrecht und Vermögensnachfolge) 2010, p. 221-228 E.N. Frohn/B.F.P. Lhoëst, Het voorstel voor een Europese Erfrechtverordening, FJR (Tijdschrift voor Familie- en Jeugdrecht) 2010, nr. 20 Andreas Frötschl, The Relationship of the European Certificate of Succession to National Certificates ERPL (European Review of Private Law) 6-2010, p. 1259-1271 Elise Goossens, Pleidooi voor de veralgemeende invoering van de Europese erfrechtverklaring in het Belgisch recht, Notarieel en Fiscaal maandblad, 2013/7, p. 204-213

Elise Goossens, Alain Verbeke, De Europese erfrechtverordening, Themis 2012, p. 105-135 Ulrike Janzen, Die EU-Erbrechtsverordnung, DNotZ (Deutsche Notarzeitschrift) 2012, p. 484-493. Aikatarin Kousoula, Gedanken anlässlich des Grünbuches der Kommission zum Erb- und Testamentsrecht/Einführung eines Europäischen Erbscheins (2009) (http://ec.europa.eu/justice/ news/consulting_public/successions/ contributions/contribution_cnct_de. pdf) K.W. Lange, Das geplante Europäische Nachlasszeugnis, DNotZ (Deutsche Notarzeitschrift) 2012, p. 168-179 D. Lehmann, Die EU-Erbrechtsverordnung zur Abwicklung grenzüberschreitender Nachlässe, DStR (Deutsches Steuerrecht) 2012, p. 285-289 Lenka Leszay, EP Study, Inhalt und Wirkungen des Europäischen Nachlasszeugnisses gemäß dem Vorschlag für eine Erbrechtsverordnung (Link at: http://www.europarl.europa.eu/thinktank/de/document.html?reference= IPOL-JURI_NT(2010)432734 ) B.F.P. Lhoëst, Recente en toekomstige ontwikkelingen in het internationaal

teria successoria, in Franzina e Leandro, Il diritto internazionale privato europeo delle successioni mortis causa, Milan, 2013, 139 ss., 169.

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huwelijksvermogens- en erfrecht; is er iets nieuws onder de zon?, 22 oktober 2012, Estate Planner Digitaal, 2012/09, p. 1-8; (Herziene versie d.d. 27 januari 2013, aanpassing nummering artikelen Europese Erfrechtverordening) (http:// www.internationaal-familierecht.nl/artikel/recente-en-toekomstige-ontwikkelingen-het-internationaal-huwelijksvermogens-en-erfrecht-er-iets-nieuwsonder-de-zon/) Pia Lokin, De Erfrechtverordening, NIPR (Nederlands Internationaal Privaatrecht) 2013, p. 329-337 Münchener Kommentar zum Bürgerlichen Gesetzbuch/Kurt Rebmann, Bd. 9: Erbrecht: §§ 1922-2385, §§ 27-35 BeurkG, Beck Verlag 2013 Report of the Max Planck Institute, Comments on the European Commission’s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a Euro-

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pean Certificate of Succession, http:// www.europarl.europa.eu/document/ activities/cont/201005/20100526 ATT75035/20100526ATT75035EN.pdf Walter H. Rechberger, Das Europäische Nachlasszeugnis und seine Wirkungen, OJZ (Österreichische Juristen-Zeitung) 2012/1, p. 14-19 Fritz Sturm/Gudrun Sturm, Das Europäische Nachlasszeugnis. Zum Vorschlag der Kommission vom 14. Oktober 2009, Zbornik PFZ (Collected Papers of Zagreb Law Faculty )2012, 62 (1-2), p. 331-358 (Link at: http://hrcak.srce.hr/index. php?show=clanak&id_clanak_jezik=137038) Nan Torfs/Ernst van Soest, Le réglement européen concernant les successions: D.I.P., reconnaissance et certificat successoral, in: Confronting the frontiers of family and succession law: liber amicorum Walter Pintens. Editors: AlainLaurent Verbeke [et al.], Cambridge: Intersentia, 2012, p. 1443-1458.

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Article 62 paras. 1, 2

Article 62: Creation of a European Certificate of Succession 1. This Regulation creates a European Certificate of Succession (hereinafter referred to as ‘the Certificate’) which shall be issued for use in another Member State and shall produce the effects listed in Article 69. 2. The use of the Certificate shall not be mandatory. 3. The Certificate shall not take the place of internal documents used for similar purposes in the Member States. However, once issued for use in another Member State, the Certificate shall also produce the effects listed in Article 69 in the Member State whose authorities issued it in accordance with this Chapter. I. General II. Paragraph 1 III. Paragraph 2

1 2 3

IV. Paragraph 3 1. 1st sentence 2. 2nd sentence

5 6

I. General Chapter VI of this Regulation contains the rules about the European 1 Certificate of Succession (in the following passages abbreviated as ECS).1 The ECS is not mandatory but it can be used in the country where it was issued and abroad to show who are the heirs to the estate of the deceased, the beneficiaries, if the deceased was married under a marriage contract etc, see for details Art. 68 of the Regulation. The effects of the ECS are set out in Art. 69: it is recognized in all Member States without further procedure. The ECS is valid for six months after it is issued, as stated in Art. 70 para. 3.

II. Paragraph 1 The ECS is created for international succession cases where it is useful 2 to have a Certificate of succession which is issued in one Member State that is recognized in another Member State.

1

The idea of a European Certificate was introduced by the late Wolfgang Riering of the German Deutsches Notar Institut, Dörner, ZEV 2010, p. 222, footnote 4.

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III. Paragraph 2 3 Because the use of the ECS is not mandatory, it is still possible to use

other means to prove that a person is entitled to (parts of) an estate in another State, for example by using a national Certificate that is recognized in the other State.The authorities of the Member States will not loose their power to issue national Certificates if they are entitled to do so by national law. The international effects of the national Certificates, depend on the application of the rules of Chapter IV on the recognition and enforcement of decisions) and Chapter V (authentic instruments and court settlements) in any particular case.2 It is possible that under those rules, a national Certificate gives less guarantee than the ECS, see Art. 69. For example, it may be less clear whether the authority issuing the Certificate, was entitled to do so.3 4 Therefore, the harmonisation concerning Certificates of succession

adds another system to protect the rights of heirs and others who may have rights to the estate, but it does not abolish the national systems that are already established or that may be established in the future. This paragraph ensures that while other means may be used to prove one’s right to the estate, it is made clear that if an authority or a person is presented with an ECS, he may not request that a decision, authentic instrument of court settlement be presented instead of the ECS, as is stated in Recital 69 to this Regulation.

IV. Paragraph 3 1. 1st sentence 5 The ECS will not take the place of national Certificates which may still

be issued in the Member States. In some Member States of the EU, a national Certificate is already in use; in others that is not the case. For example the Scandinavian countries do not have a national Certificate.4 2 3 4

Goossens/Verbeke, nr. 61. Dörner, ZEV 2012, p. 512. Buschbaum/Simon, ZEV 2012, p. 529.

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Also the content and effect of national Certificates varies substantially from one Member State to the next.5 Therefore a citizen may prefer a national Certificate in certain cases when this has a broader range of effects than the ECS, for example concerning the protection of third parties who may be more willing to cooperate on the basis of that national document than on the basis of an ECS.6

2. 2nd sentence Although the ECS is created for international succession cases, the ECS 6 is also valid in the State where it was issued. In that State it can also be used to produce the effects mentioned in Art. 69. In practice it will probably depend for example on the effects of a national Certificate of succession and the costs involved, as to which Certificate will be applied for, the ECS or the national Certificate. Is it possible that both a national and a European Certificate may be 7 issued in relation to the same estate? In the doctrine we find different answers to this question and a few will be mentioned. In the Max Planck Institute Report7 it is stated that in some States the rules concerning the issue of national Certificates will prevent the issue of more than one national Certificate. These rules may also be used to prevent the issue of a national and an ECS in relation to the same estate. However if those rules do not exist or if they do not prevent the issue of both a national and an ECS, the Regulation does not give an answer to the question as to which Certificate has priority over the other. The EU Commission promoted the concept of a European register for the Certificates8 but the final text of the Regulation has not incorporated this idea.

5 6 7 8

Report of the Max Planck Institute, nr. 267. Buschbaum/Simon, ZEV 2012, p. 528. Report of the Max Planck Institute, nr. 326-328. Report of the Max Planck Institute, nr. 341.

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Article 62 paras. 8–10

8 Frötschl also offers some suggestions.9 The first is that in a case where a

national and an ECS contradict each other, the ECS will stand above the national Certificate and will override the national Certificate. The second is that they will stand alongside and the first one issued should be the decisive one. The third suggestion is that of concentric circles: the ECS should “embrace the national Certificate in a soft and adaptive way” to form one organic entity without internal conflicts. This is the solution that Frötschl prefers but it is not clear how that should work in practice. 9 Rechberger10 accepts that a national Certificate and an ECS may exist

alongside, without one prevailing above the other; it may be the case that they have different effects and one may use either. 10 One other solution that was mentioned11 was to register these docu-

ments in the Member State where they were issued, but that does not answer this question. Should the first rule over the later Certificate, or should the latest Certificate prevail? If that is not the case, it is the responsibility of each State to have a system of registration in order to inform the authorities in that State that another Certificate has already been issued. This could have serious consequences if, for example, an estate seems to be limited to a certain Member State. In that case an heir or executor might choose to apply for a national Certificate. If he later finds out that there are parts of the estate situated outside that country, he could no longer apply for an ECS because of the jurisdiction rules in Art. 64. A solution to that problem could be that the national Certificate should be cancelled before the ECS is issued and then the person may use the ECS to establish his rights in the other Member States.

9 10

11

Frötschl, ERPL (European Review of Private Law) 6-2010, p. 1262. Rechberger, Das Europäische Nachlasszeugnis und seine Wirkungen, ÖJZ 2012/ 1, p. 17. Lange, DNotZ 2012, p. 177-178.

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Article 63 paras. 1–3

Article 63: Purpose of the Certificate 1. The Certificate is for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. 2. The Certificate may be used, in particular, to demonstrate one or more of the following: (a) the status and/or the rights of each heir or, as the case may be, each legatee mentioned in the Certificate and their respective shares of the estate; (b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate; (c) the powers of the person mentioned in the Certificate to execute the will or administer the estate.

I. Paragraph 1 Although it is not quite clear from the text of this paragraph, Art. 65 1 para.1 refers to this paragraph as setting out who are to be the applicants for the ECS. This list is exhaustive as to the persons who are entitled to apply for an ECS. Persons who have direct rights to the estate can apply for an ECS. Who they are exactly, depends on the applicable succession law, see 2 Recital 47.1 In the continental systems this includes heirs who have rights to the estate under the doctrine of saisine, which automatically entitles them to (parts of) the estate at the moment of death. Those persons may apply for an ECS to demonstrate their rights to the estate. Executors of Wills or administrators of the estate may also apply for an 3 ECS. This category includes the executors of Wills which may be appointed in a Will under the continental systems. These persons have certain rights over the estate. These rights may be proved by the ECS. 1

Lokin, NIPR 2013, p. 336, footnote 73.

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Article 63 paras. 4–6

4 Administrators are those in the common law countries that have cer-

tain rights over the estate by law for the period of time in which they have to administer the estate. This is necessary in those common law legal systems because there are no heirs who are automatically entitled to the estate directly after the death of the deceased. Administrators, as they are mentioned in the Regulation, are personal representatives and administrators according to common law.2 From this list, it is clear that creditors of the estate may not apply for an ECS. In German doctrine we find the idea that in national laws creditors should also be able to apply for an ECS.3 On first impressions it might seem useful for creditors to apply for an ECS because then they know who to turn to in order to recover their claims, but this would be contrary to the system of the Regulation; an ECS is a document that is issued to those who have direct claims to the estate or to those who must administer the estate. A creditor does not necessarily have either position. According to paragraph 1 of Art. 70, he may apply for a certified copy of an ECS that is applied for by a legitimate applicant. Then he can see who he must turn to for payment. 5 When applying for an ECS, the applicant must indicate the intended

purpose of the Certificate, as is stated in Art. 65 paragraph 3 sub (f). The possible purposes that may be stated can be found in paragraph 2 of Art. 63. The purposes which are mentioned in paragraph 2 all have in common that they imply the use of the ECS in another State than that where the Certificate was issued, as it is described in paragraph 1. It is not possible to apply for an ECS in a purely national succession case.4

II. Paragraph 2 1. Sub-paragraph (a) 6 As it is mentioned sub (a), heirs and legatees can demonstrate their 2

3

4

The United Kingdom, Ireland and Denmark will not be Member States for this Regulation, see Art. 84. Buschbaum/Simon, ZEV 2012, 525, plead that this should be integrated in German legislature implementing the Regulation. Buschbaum/Simon, ZEV 2012, p. 525; NJW 2012, p. 2397.

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Article 63 paras. 7–9

rights to their share of the estate if they are entitled to this according to the applicable law under Chapter III. In some Member States only heirs can be entitled to the whole estate or equal shares of the estate, while in other Member States it is also possible for general legatees to be entitled to an equal share of the estate. Heirs and this category of general legatees can, for instance, show that 7 they have accepted the estate and in which particular manner, if the applicable law has more than one way of accepting an estate. In particular one may think of the possibility of accepting the estate with or without the duty towards the creditors of the estate to pay surplus debts of the estate out of their own means. In some Member States the heirs may choose in which manner they want to accept the estate; in others there is only one way of accepting the estate.

2. Sub-paragraph (b) As is mentioned in sub (b), according to the laws of some Member 8 States it is not possible for legatees to be entitled to the whole or to equal shares of the estate. In those Member States legatees can only be entitled to a specific asset or specific assets forming part of the estate. This may also be the case for heirs in some Member States. The question is also whether the rights of legatees to a sum of money, which is not part of the estate, fall within the scope of this Article. It seems that this is the case but this is not clear from the text.

3. Sub-paragraph (c) This part of the Regulation may give rise to certain questions in daily 9 practice, because in the legislation of many Member States we find an executor of aWill or an administrator of the estate. As mentioned above, the executor is usually appointed in a Will. This person has certain rights concerning the estate, while there may also be one or more heirs who are entitled to the estate because of saisine. In each Member State it may be different as to what an executor of the Will may or may not do in relationship to the rights of the heirs. According to Art. 68 sub (o) the ESC will describe the powers that the executor has according to the law that is applicable under Chapter III, see Art. 19. Barbara Reinhartz

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Article 63 paras. 10, 11; Article 64 paras. 1–3

10 In common law countries an administrator (who may also be called a

personal representative) takes fiduciary possession of the estate until his tasks have been completed. 11 One of his tasks usually is the payment of taxes and debts which are to

be paid out of the estate. After that he will transfer to the beneficiaries what is left of the estate. In the meantime the beneficiaries of the estate are not entitled to the assets of the estate.

Article 64: Competence to issue the Certificate The Certificate shall be issued in the Member State whose courts have jurisdiction under Article 4, Article 7, Article 10 or Article 11. The issuing authority shall be: (a) a court as defined in Article 3(2); or (b) another authority which, under national law, has competence to deal with matters of succession.

1 The idea is that the authorities of only one Member State will have the

right to issue an ECS. Therefore the competence to issue an ECS is limited to the courts or other authority of the Member State whose authorities also have jurisdiction in general concerning the estate according to the Arts. 4, 7, 10 or 11. 2 National legislation will determine whether a court or another authority

will issue an ECS.1 That is linked to the national legislation concerning matters of succession. In some countries this will be a court, for example in Germany, Austria, Greece and Hungary, in other countries this will (also) be a notary, for example in Estonia,2 the Netherlands, Belgium, France, Spain, Portugal and Luxemburg;3 in other countries it will be a notary with a judicial function (Czech Republic, Slovakia).4 3 The first group of Member States will have national legislation con-

cerning relative jurisdiction which will decide which court in that Mem1 2

See Recital 70. Buschbaum/Simon, ZEV 2012, p. 526.

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Article 64 paras. 4, 5; Article 65

ber State has jurisdiction. In the countries where other authorities such as notaries are competent to issue a Certificate of succession, usually there are no rules about relative competence of notaries, as the clients are free to choose their notary. Those countries will have other systems to ensure that there will not be conflicting Certificates of succession, for example by creating a register in which the notary who issues a Certificate of succession is registered. That way third parties can find out which court or notary has issued a Certificate and other courts and notaries will know that they are not allowed to issue a Certificate as well. The relevant information concerning their issuing authorities is to be 4 communicated to the Commission who will make that information publicly available, as is stated in Recital 70 to the Regulation. The authority which has the jurisdiction to issue an ECS may not limit 5 it to a part of an estate which is located in one of the Member States.5

Article 65: Application for a Certificate 1. The Certificate shall be issued upon application by any person referred to in Article 63(1) (hereinafter referred to as ‘the applicant’). 2. For the purposes of submitting an application, the applicant may use the form established in accordance with the advisory procedure referred to in Article 81(2). 3. The application shall contain the information listed below, to the extent that such information is within the applicant’s knowledge and is necessary in order to enable the issuing authority to certify the elements which the applicant wants certified, and shall be accompanied by all relevant documents either in the original or by way of copies which satisfy the conditions necessary to establish their authenticity, without prejudice to Article 66(2): 3

4

5

Goossens/Verbeke, nr.62, footnote 74. Check www.successions-europe.eu for more details. Leszay, EP Study, Inhalt und Wirkungen des Europäischen Nachlasszeugnisses gemäß dem Vorschlag für eine Erbrechtsverordnung, nr. 1.1. In Sweden and Finland there is a private register which grants the protection of good faith to third parties if they rely on it. Buschbaum/Simon, ZEV 2012, p. 526.

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(a) details concerning the deceased: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address at the time of death, date and place of death; (b) details concerning the applicant: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address and relationship to the deceased, if any; (c) details concerning the representative of the applicant, if any: surname (if applicable, surname at birth), given name(s), address and representative capacity; (d) details of the spouse or partner of the deceased and, if applicable, exspouse(s) or ex-partner(s): surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable) and address; (e) details of other possible beneficiaries under a Disposition of Property upon Death and/or by operation of law: surname and given name(s) or organisation name, identification number (if applicable) and address; (f) the intended purpose of the Certificate in accordance with Article 63; (g) the contact details of the court or other competent authority which is dealing with or has dealt with the succession as such, if applicable; (h) the elements on which the applicant founds, as appropriate, his claimed right to succession property as a beneficiary and/or his right to execute the will of the deceased and/or to administer the estate of the deceased; (i) an indication of whether the deceased had made a Disposition of Property upon Death; if neither the original nor a copy is appended, an indication regarding the location of the original; (j) an indication of whether the deceased had entered into a marriage contract or into a contract regarding a relationship which may have comparable effects to marriage; if neither the original nor a copy of the contract is appended, an indication regarding the location of the original; (k) an indication of whether any of the beneficiaries has made a declaration concerning acceptance or waiver of the succession; (l) a declaration stating that, to the applicant’s best knowledge, no dispute is pending relating to the elements to be certified; (m) any other information which the applicant deems useful for the purposes of the issue of the Certificate 256

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Article 65 paras. 1, 2 I. Paragraph 1 II. Paragraph 2 III. Paragraph 3 1. List of subjects 2. Items of information listed in paragraph 3 a) Sub-paragraph (a) b) Sub-paragraph (b) c) Sub-paragraph (c) d) Sub-paragraph (d) e) Sub-paragraph (e)

1 2 3 9 9 13 15 16 17

f) g) h) i) j) aa) bb)

Sub-paragraph (f) Sub-paragraph (g) Sub-paragraph (h) Sub-paragraph (i) Sub-paragraph (j) Marriage Contract Partnership contract or cohabitation contract k) Sub-paragraph (k) l) Sub-paragraph (l) m) Sub-paragraph (m)

20 21 22 23 25 28 31 32 33

I. Paragraph 1 This paragraph states that the applicant, mentioned in Art. 63, para- 1 graph 2, may apply for an ECS. This means that other people, for example creditors of the deceased, do not have the right to apply for an ECS. The persons mentioned in Art. 63, paragraph 2, are the heir(s), the legatee(s) who are directly entitled to the estate, and executors and administrators.

II. Paragraph 2 There will be an application form for the ECS which will be issued in all 2 the languages of the EU. In an earlier version of this Regulation, the form was part of the Regulation but in this version, the application form is not included.1 The applicant may use the official application form but that is not mandatory. He may also use other forms, for example those which are provided for in the national law of the authority which issues the ECS, if that Member State also has a national procedure for issuing national Certificates of succession.

1

The original text, COM/2009/154 contained an example for such a form: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN: EN:PDF.

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III. Paragraph 3 1. List of subjects 3 This paragraph lists all the information that may be part of the ECS

which may be issued. It is not necessary to include all the information in order to issue a valid ECS. The idea is that this list contains all information that may be relevant in any of the Member States, but not all items are necessarily known in the law that is applicable to the succession.2 The applicant will State which information he wants to be included in the ECS. It may therefore be the case that even if the law that is applicable to the estate contains more items in the list, the applicant will choose to include only a few of them because that is enough for the purpose stated in Art. 63. For example in Dutch law it is not uncommon only to include the information concerning the executor because he then has the power to administer the estate while the heirs are not entitled to the assets of the estate. Only after he has paid all the debts, will the executor then hand over the residue of the estate. In the meantime, it is likely that 6 month will have passed. By then the original ECS will no longer be valid and the heir(s) may apply for a new ECS which shows that they are the heirs and that they now are entitled to the residue of the estate after the administration by the executor has been completed. 4 To the extent that such information is within the applicant’s knowledge

and is necessary in order to enable the issuing authority to certify the elements which the applicant wants certified, and shall be accompanied by all relevant documents either in the original or by way of copies which satisfy the conditions necessary to establish their authenticity, without prejudice to Article 66(2). 5 The list of items that may be certified will not always be followed when

issuing an ECS. The information is limited by the subjects that need to be proved in order to achieve the goals which are to be realised by the ECS. Information that is not necessary to achieve those goals, can still be part of the ECS, it seems. It is unlikely that this would make the ECS invalid, but the text of the Regulation is not clear on this point.

2

Janzen, DNotZ 2012, p. 487.

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The content of the ECS is limited by the information the applicant can 6 supply to the issuing authority. He has to see that all the necessary documents are supplied. The question arises as to whether the issuing authority also has a role in 7 this. In those countries where notaries are the issuing authority, the notaries may have access to all kinds of (digital) registers where relevant information can be found, for example, information about the children of the deceased. When the children are the heirs, those registers may provide useful information an ordinary citizen has no access to. It seems that this kind of information may be obtained by these authorities, because the applicant may not have access to that information which is crucial to the content of the ECS. It may also be the case that only officials such as courts or notaries will have access to the register where one can ascertain where the last Will of the deceased was drawn up. Article 66 paragraph 1 of the Regulation states that the issuing authority will verify the information and the declarations etc. of the applicant and he will carry out further investigations necessary for the verification of the information provided by the applicant. Therefore further investigation by the authority is provided for in the Regulation. When an applicant has relevant documents in his possession, for exam- 8 ple a holographic Will that is kept in a drawer in the house where the deceased lived, or copies of those documents, for example the copy of a notarial Will of which the original is kept by the notary, he must provide the issuing authority with those documents or those copies.

2. Items of information listed in paragraph 3 The following items are listed in the Article, some of which speak for themselves:

a) Sub-paragraph (a) The surname of the deceased is not always the surname at birth. It may 9 be that the surname has changed because the deceased got married under a law which may change or permit a change of the name of the person to that of their spouse. In other countries married persons keep their own name but may use the name of their spouse. For those people it is important that the sub-paragraph (d) information regarding the Barbara Reinhartz

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Article 65 paras. 10–14

spouse is included in the ECS because one cannot identify the married status from the name of the deceased. 10 It is suggested that it is important that the possibility is included in the

application form as in, for example, Germany or Australia, that a person is not registered as either male or female. Therefore the application form should also include a third option. 11 The address that is to be mentioned in the application is not specified in

the Regulation. The term “address” that is used, is not “habitual residence” as mentioned in other instruments. Therefore it seems to point to the official address, the address where the person’s address is registered, if the law of the Member State contains such a registration. In cases where the address of a person is derived from that of his legal representative, for example children or persons with an impairment or elderly persons who are not fully legally capable and whose legal address is defined as the address of their legal representative, it seems that the place of the official registration is to be noted in the ECS. This address is necessary to identify the deceased because this is the legal address. 12 The place of the habitual residence of the deceased can be recorded un-

der the extra relevant information that is mentioned under sub-paragraph (m).

b) Sub-paragraph (b) 13 The comments above concerning the deceased are also relevant for the

details that are to be given regarding the applicant. Concerning the address of the applicant, the Max Planck report notes that this is the address where the applicant can be contacted. This address is more useful than any legal addresses that may be registered but are not the address where the applicant can be reached.3 14 Also the relationship to the deceased is to be specified if there is any.

This may concern the fact that the applicant is for example a child or grandchild of the deceased, or his spouse or partner. They may have rights to the estate because of that relationship. When the applicant is 3

Report of the Max Planck Institute, nr. 287.

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Article 65 paras. 15–17

an executor or administrator of the estate, they may also be a family Member or they may be a professional person that the deceased trusted with this role or a friend or neighbour of the deceased. This may be relevant for the ability for those persons to claim payment for their time expended.

c) Sub-paragraph (c) The details that are to be given here are the details of the representative 15 for the applicant. This may be the lawyer of the applicant (an advocate or a solicitor, for example) but this is not a prerequisite. It may, for example, also be the parent or guardian of an heir who is still a minor and therefore not able to act for himself.

d) Sub-paragraph (d) As already mentioned under sub-paragraph (a), it may be the case that 16 from the name of the deceased, it is not obvious that that person was married or had a partner. However, this may be important information in the ECS because it may have consequences under the law that is applicable to the succession. A spouse under this Article is someone who was married to the deceased, including a person of the same sex married to the deceased at the time of death. Such marriages must be recognized in this context.4 This is also the case for partners. These may be registered partners or unregistered partners of the deceased, since in some Member States registration is possible for different kinds of partnerships. Since this may have consequences for the succession, it is relevant that these spouses or partners are mentioned in the ECS. The question whether a marriage is valid or whether someone is the deceased’s partner, is to be decided according to the law that is applicable to that question; therefore it is not to be answered by the law that governs the succession, see Art. 1, paragraph 2 (a) of this Regulation.

e) Sub-paragraph (e) Sub-paragraph (e) states that ‘other’ possible beneficiaries are to be lis- 17 ted. This refers to the situation in which the applicant is an heir or a legatee having direct rights in the succession. Another possible beneficiary may be a legatee who has a right, based on the applicable law or a 4

See Recital 58 which refers to Article 21 of the Charter of Fundamental Rights of the European Union, which prohibits all forms of discrimination.

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Article 65 paras. 18–21

Will, against, for example, an heir. It may also be that this beneficiary is someone who has a reserved share. He may have a right to obtain assets from the estate and therefore has a role in the division of the property, or he may only be entitled to a monetary claim against the heirs.5 Concerning the address of the other possible beneficiaries, this is the address where the applicant can be contacted. This address is more useful than any legal addresses that may be registered but that is not the address where the beneficiary can be reached. 18 The text of sub-paragraph (e) seems somewhat strange if an executor or

an administrator is the applicant. Those persons usually have no personal rights to the estate, only in their capacity of executor or administrator. If that is the case, sub-paragraph (e) will also require the information concerning heirs and legatees who have direct rights in the succession.

f) Sub-paragraph (f) 20 The intended purpose of the ECS is relevant because this also defines

the information that it must contain. If an heir is the applicant, it is important to State whether the heirship is the result of the succession rules of the law that is applicable to the succession, or whether it is the result of the Will of the deceased. It must then be established whether the Will is valid according to the law applicable to those aspects. The validity concerning the form of the Will is determined by Art. 27 of the Regulation or by the 1961 Hague Wills Convention, as stated in Art. 75 of this Regulation.6 The question whether the provisions of the Will are valid, is answered by the law that is applicable to the Will according to Chapter III of this Regulation.

g) Sub-paragraph (g) 21 The purpose of this paragraph is that the court or another competent 5 6

See Recital 47. See Recital 52, which states that these rules are consistent with those of the Hague Convention of 5 October 1961 on the Conflicts of Laws Relation to the Form of Testamentary Dispositions. Many Member States are Member of this Hague Convention, see the status table of this Convention on http://www.hcch. net/index_en.php?act=conventions.status&cid=40.

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Article 65 paras. 22–25

authority that is dealing with the succession can easily be found. In some Member States this court or authority has to register in a national context. It depends on the national law of those Member States whether this registration is or will be limited to national cases but it would seem very practical also to register if this court or authority is dealing with an international succession case. This depends on the national laws in the Member States; the Regulation does not regulate this aspect.

h) Sub-paragraph (h) The elements which are mentioned in sub-paragraph (h) may be the 22 facts which are relevant under the applicable law in establishing the rights the applicant claims; for example the fact that the applicant is a spouse or a child of the deceased and therefore entitled to (a part of) the estate. It may also be that those rights stem from the Will of the deceased. Then the Will has to be presented, as mentioned above.

i) Sub-paragraph (i) In some Member States it is possible to make a holographic Will which 23 is kept by the testator in a safe or other place. In that case the heir may need the ECS to obtain access to that safe in order to obtain the Will. In such a case it will only be possible to give an indication of where the original can be found. In some Member States Wills are made by notaries who retain the ori- 24 ginal of the Will. In that case only a copy can be obtained. If that copy is kept in a safe, the same problems arise as stated above. In that case either the copy can be found in the safe or the original can be found in the safe of the notary where the Will was made.

j) Sub-paragraph (j) aa) Marriage Contract Sub-paragraph (j) requires information on any marriage contract that 25 the deceased had entered into. This can be an ante nuptial contract or a contract during marriage if the law applicable to the marriage permits this. In the future the applicable law regarding this subject will be governed by another European instrument, the Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes but that has not yet entered Barbara Reinhartz

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Article 65 paras. 26–28

into force.7 Before that comes into force the applicable law in that matter is determined by the national laws on international matrimonial property law relating to the particular asset. 26 A marriage property regime is relevant for the succession because it

may determine the content of the estate of the deceased; is it a share of the community property of the spouses, or do the spouses only have separate property, or is the estate a combination of some separate property and a share in the community property? 27 It may also be relevant because the marriage contract may contain spe-

cific rules on the property of the spouses after death. It may be the case that the deceased’s share in community property is automatically transferred to the other spouse upon death. Another possibility is that because of the marriage contract some claims arise between the spouses. The resulting claim or debt must not be overlooked when administering the estate. bb) Partnership contract or cohabitation contract 28 Sub-paragraph (j) also requires information on partnership contracts or

cohabitation contracts. Both kinds are included; a contract that by law is equivalent to a marriage contract, whether it concerns a partnership that is registered, or a cohabitation contract that does not have the same status as a marriage because the partnership is not registered, but has comparable effects. In some Member States partnership contracts are designed for partners of the same sex who are not permitted to marry; in some Member States both forms are available for all couples. The applicable law for such contracts will also in the future be regulated by a European instrument, which has not yet entered into force: the Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships.8

7 8

For the text see COM/2011/0127 final. COM(2011) 127/2. See http://conflictoflaws.net/2011/commissions-proposalson-matrimonial-property-regimes-and-property-consequences-of-registeredpartnerships for an overview of the current status of both Regulations.

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Article 65 paras. 29–33

In addition, in some Member States a couple may decide not to marry 29 or register, but they wish to have a contract to govern the period during which they are living together and the ending of the relationship. As in a marriage contract or a partnership contract, there may be clauses in such contracts which may govern the share of the deceased in certain common property or claims may arise upon the death of one of the partners. It may also be that the applicable law on succession links certain effects 30 to the fact that the couple had a partnership contract or a cohabitation contract. For example in Dutch law a couple living together with a notarial cohabitation contract can make certain provisions for the surviving partner in a Will, whereas a couple that are living together without such a contract, cannot make such provisions. Because of these provisions the surviving cohabitee is protected against claims arising from a reserved share of a child of the deceased. Therefore the effect of these provisions in a Will depend on the fact whether the couple had a notarial cohabitation contract or not and the fact whether the couple still lived together at the first death of the one of the couple.9

k) Sub-paragraph (k) The form of such a declaration is governed by Art. 28 of this Regulation. 31 It may also concern a declaration as to the limitation of liability for the debts of the deceased. The rights and/or shares of the other beneficiaries may be affected by the acceptance or waiver of the succession.

l) Sub-paragraph (l) This speaks for itself.

32

m) Sub-paragraph (m) As already mentioned in sub-paragraph (a), the place of the habitual 33 residence of the deceased can be recorded under the additional relevant information if the registered residence of the deceased is not the same as his habitual residence. This can for example be the case if the deceased had a legal representative and his official residence was therefore linked to that of his representative. This may be relevant for those who are

9

Article 82, Book 4, of the Dutch Civil Code.

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265

Article 65 para. 34; Article 66 para. 1

under legal restraint, but also for minors who do not live at the same address as their guardian. 34 Also other useful information may be given here.

Article 66: Examination of the application 1. Upon receipt of the application the issuing authority shall verify the information and declarations and the documents and other evidence provided by the applicant. It shall carry out the enquiries necessary for that verification of its own motion where this is provided for or authorised by its own law, or shall invite the applicant to provide any further evidence which it deems necessary. 2. Where the applicant has been unable to produce copies of the relevant documents which satisfy the conditions necessary to establish their authenticity, the issuing authority may decide to accept other forms of evidence. 3. Where this is provided for by its own law and subject to the conditions laid down therein, the issuing authority may require that declarations be made on oath or by a statutory declaration in lieu of an oath. 4. The issuing authority shall take all necessary steps to inform the beneficiaries of the application for a Certificate. It shall, if necessary for the establishment of the elements to be certified, hear any person involved and any executor or administrator and make public announcements aimed at giving other possible beneficiaries the opportunity to invoke their rights. 5. For the purposes of this Article, the competent authority of a Member State shall, upon request, provide the issuing authority of another Member State with information held, in particular, in the land registers, the civil status registers and registers recording documents and facts of relevance for the succession or for the matrimonial property regime or an equivalent property regime of the deceased, where that competent authority would be authorised, under national law, to provide another national authority with such information.

I. Paragraph 1 1 In addition to the information the applicant provides under Art. 65, the 266

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Article 66 paras. 2–5

Regulation also provides for a further investigation by the issuing authority. It may verify the information that is provided by the applicant but it may also carry out further investigations if that is necessary and provided for or authorised by its own law. This for example enables notaries to inspect the national registers of births, marriages, death etc, if the national law authorises this.1 If all of this does not yield enough information in order to issue the 2 ECS, the authority may invite the applicant to provide more information. Paragraph 5 provides that if those registers are located in another Member State, they may provide the necessary information to the issuing authority. See further the comments to paragraph 5 of this Article. Paragraph 4 states that the authority may also hear other persons in- 3 volved in the succession, and any executor or administrator. Thus all possible steps can be taken to gather the information that is necessary before an ECS is issued.

II. Paragraph 2 and 3 If the applicant has not been able to produce copies of relevant docu- 4 ments of which the authenticity can be established, the issuing authority may decide to accept other forms of evidence. Paragraph 3 states that the issuing authority may require that declarations are made by oath. It may be that this means of establishing certain facts is not known in the national legislation, but the Regulation enables the authorities to use this method in international successions.2 If the national law provides for this, the facts may be established by a 5 statutory declaration in lieu of an oath. The issuing authority must follow the national rules for this. This may be necessary if there are not sufficient documents to prove the matters stated by the applicant, for example because the documents have been destroyed by a catastrophe such as flooding or war, or an incident such as a fire. 1 2

Buschbaum/Simon, ZEV 2012, p. 525. Goossens, Notarieel en Fiscaal maandblad, 2013/7, p. 209, nr. 19.

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Article 66 paras. 6–9

6 The authorities of another Member State may sometimes prefer to have

certain information declared by way of documents or by a declaration under oath or by a statutory declaration in lieu of an oath instead of merely a declaration by the applicant or third parties. This may enhance the acceptance of the ECS abroad.3

III. Paragraph 4 7 To ensure the production of only one ECS at a time which is correct,

paragraph 4 states that the issuing authority must take all necessary steps to inform others that are affected by this ECS; for example the beneficiaries of the succession the subject of the application for an ECS. In addition this paragraph provides for the possibility of making public announcements aimed at giving other possible beneficiaries the opportunity to invoke their rights. This may be done by an advertisement in a newspaper or on the internet. The national law and legal practice will provide a guide for these actions. 8 The duty to inform may be relevant for example if an executor requests

an ECS. The content of that ECS may be limited in order to show that this person is the executor and it will set out the duties and rights of the executor. It may be that other relevant information for the role of heirs, for example, is omitted because it is not relevant to the role of the executor. When an heir is informed of the fact that an application has been filed for an ECS by the executor, the heir may request that his rights should also be noted in the ECS. Art. 70 makes it possible for a personother than the applicant to receive a certified copy but the heir needs an ECS with more information than the executor. If the extra information about the heir is added to the ECS, then it will also be useful for the heir. 9 In some cases this right to inform other beneficiaries, for example peo-

ple with the right to a reserved share, may conflict with the manner in which national successions are handled. It seems to be up to the national legislator and judiciary to solve any resulting discrepancies. In European cases, the Regulation will overrule national law.

3

Buschbaum/Simon, ZEV 2012, p. 527.

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Article 66 para. 10; Article 67 para. 1

IV. Paragraph 5 As was stated before, sometimes it is necessary to obtain information 10 from certain registers from another Member State. Paragraph 5 makes it possible for the issuing authority to ask for information from another Member State concerning information held, in particular, in the land registers, the civil status registers and registers recording documents and facts of relevance for the succession or for the matrimonial property regime or an equivalent property regime of the deceased. The competent authority may give that information if it is authorised, under national law, to provide another national authority with such information.

Article 67: Issue of the Certificate 1. The issuing authority shall issue the Certificate without delay in accordance with the procedure laid down in this Chapter when the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements. It shall use the form established in accordance with the advisory procedure referred to in Article 81(2). The issuing authority shall not issue the Certificate in particular if: (a) the elements to be certified are being challenged; or (b) the Certificate would not be in conformity with a decision covering the same elements. 2. The issuing authority shall take all necessary steps to inform the beneficiaries of the issue of the Certificate.

I. Paragraph 1 1. The form of the ECS The ECS will be issued in a form that will be established in accordance 1 with the advisory procedure referred to in Article 81(2). While the applicant may use the form that will be provided to apply for an ECS, the issuing authority must use the form that will be provided. Other forms are not allowed.

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Article 67 paras. 2–4

2. Issuing the ECS 2 As soon as all the necessary information has been received according to

the procedure laid down in Art. 66, and all the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements, the ECS will be issued. This shows the importance of the selection of the necessary information under Art. 65 and the information that will be included according to Art. 68, because the ECS must be issued as soon as all the necessary information has been established for the purpose of the ECS in the particular case.1 If other information has not yet been established, that is not a reason to delay the issue of the ECS. This may speed up the issue of an ECS in comparison with national Certificates which in some countries tend to be very extensive and therefore take a longer time to issue during which the heirs or other beneficiaries must wait for the document.

3. Grounds for not issuing the ECS 3 If there are problems with the content of the ECS, it will not be issued.

The Regulation states as possible reasons: (a) the elements to be certified are being challenged; or (b) the ECS would not be in conformity with a decision covering the same elements. This is not an exhaustive list of the grounds for not issuing the ECS but it will probably cover most cases.

II. Paragraph 2 4 To avoid a second application concerning the same succession, the issu-

ing authority must take all necessary steps to inform the beneficiaries of the issue of the ECS. If another beneficiary appears, he may obtain another certified copy of the ECS under Art. 70.2 After the ECS is issued, that beneficiary cannot use that ECS if the information concerning his entitlement is not set out in the ECS. It would appear that the procedure 1 2

Goossens/Verbeke, nr. 70. Recital 72.

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Article 68

under Art. 71 is not helpful since that can only be used if the ECS contains errors or inaccuracies, and not in any other case.

Article 68: Contents of the Certificate The Certificate shall contain the following information, to the extent required for the purpose for which it is issued: (a) the name and address of the issuing authority; (b) the reference number of the file; (c) the elements on the basis of which the issuing authority considers itself competent to issue the Certificate; (d) the date of issue; (e) details concerning the applicant: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address and relationship to the deceased, if any; (f) details concerning the deceased: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address at the time of death, date and place of death; (g) details concerning the beneficiaries: surname (if applicable, surname at birth), given name(s) and identification number (if applicable); (h) information concerning a marriage contract entered into by the deceased or, if applicable, a contract entered into by the deceased in the context of a relationship deemed by the law applicable to such a relationship to have comparable effects to marriage, and information concerning the matrimonial property regime or equivalent property regime; (i) the law applicable to the succession and the elements on the basis of which that law has been determined; (j) information as to whether the succession is testate or intestate, including information concerning the elements giving rise to the rights and/or powers of the heirs, legatees, executors of wills or administrators of the estate; (k) if applicable, information in respect of each beneficiary concerning the nature of the acceptance or waiver of the succession; (l) the share for each heir and, if applicable, the list of rights and/or assets for any given heir; (m) the list of rights and/or assets for any given legatee; (n) the restrictions on the rights of the heir(s) and, as appropriate, legatee(s) Barbara Reinhartz

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Article 68 paras. 1, 2

under the law applicable to the succession and/or under the Disposition of Property upon Death; (o) the powers of the executor of the will and/or the administrator of the estate and the restrictions on those powers under the law applicable to the succession and/or under the Disposition of Property upon Death. I.

General 1. For the purpose of the ECS 2. Legal concepts not known in the law of succession of the issuing Member State 3. Items of information listed in the Article a) Article 68(a) b) Article 68(b) c) Article 68(c) d) Article 68(d)

1 2 3 4 4 5 6 7

e) f) g) h) i) j) k) l) m) n) o)

Article 68(e) Article 68(f) Article 68(g) Article 68(h) Article 68(i) Article 68(j) Article 68(k) Article 68(l) Article 68(m) Article 68(n) Article 68(o)

8 10 13 15 21 22 26 28 32 35 36

I. General 1 Art. 68 sets out all the information that may be contained in the ECS. It

will all be part of the form of an ECS that will be issued under Article 80. The original concept was that the form would be issued in all of the official languages of the Member States. The user of the ECS then would only have to see the answers in the form in his own language and he would then be able to use it.

1. For the purpose of the ECS 2 The issuing authority of the ECS will not wait until all the information

concerning all of the points listed in Art. 68 is established, since the ECS need only contain the information which is necessary for the particular purpose of the ECS. This may depend on who is applying for the ECS, see the comment on Art. 66, para. 4. In an earlier draft version of the Regulation, it was explicitly stated that a partial ECS would be possible but that is now not explicit in the first sentence of Article 68.1 1

Report of the Max Planck Institute, nrs. 291-295. The MPI was in favour of the possibility of issuing a partial ECS if that was sufficient to ensure the rights of the applicant.

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Article 68 paras. 3–6

2. Legal concepts not known in the law of succession of the issuing Member State When the list of items below is considered, the question arises as to 3 what to do with legal concepts that are part of the applicable law of the succession but which are not known in the law of succession in the issuing Member State. Unfortunately we can find no solution in the Regulation. It seems that the issuing authority should stay as close as possible to the concepts of the applicable law when issuing the ECS. The Member State where it must take effect, must then decide how to deal with those concepts; see the comment on Art. 69. At the moment it is not yet clear what the form of the ECS will look like. It will also depend on that form, as to how extensively such foreign legal concepts can be described. It may be, for example, that the rights of the heirs under sub-paragraph (j) or the rights and the restrictions on the rights of executors in sub-paragraphs (j) and (o) will be determined by a list of rights that can be ticked. This may simplify the often more complex nature of those legal rights but it would make it more practical. Whether the form uses this solution or another is yet to be seen.

3. Items of information listed in the Article The following items are listed in the Article, some of which speak for themselves:

a) Article 68(a) This may be the address of the court or the notary or other competent 4 authority that is issuing the ECS.

b) Article 68(b) This speaks for itself.

5

c) Article 68(c) This refers to the rules of Art. 64 concerning the jurisdiction to issue the 6 ECS. The court or other authority will State here the facts relevant for its competence according to Arts. 4, 7, 10 or 11 of the Regulation. For further details see the comments on Art. 64.

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Article 68 paras. 7–10

d) Article 68(d) 7 This may be relevant if there is more than one Certificate, national or an

ECS. See the comment on Art. 62 paragraph 3, 2nd sentence. Unfortunately the Regulation gives no answer to the question as what should happen if there are more Certificates with contradictory contents. It may be that the first in time is binding, but it may also be that the ECS must be used in the other Member States and limit the effect of the national Certificate to its use in the country where it was issued.

e) Article 68(e) 8 The comments in sub-paragraph (f) concerning the deceased are also

relevant for the details that are to be given regarding the applicant. In relation to the address of the applicant, the Max Planck report notes that this is the address where the applicant can be contacted. This address is more useful than any legal addresses that may be registered but that are not the address where the applicant can be reached.2 9 In addition the relationship to the deceased is to be specified if there is

any. This may concern the fact that the applicant is for example a child or grandchild of the deceased, his spouse or partner. They may have rights to the estate because of that relationship. When the applicant is an executor or administrator of the estate, they may also be a family member or they may be a professional person that the deceased trusted with this role or who was appointed by law or by a court. Alternatively they may be a friend or neighbour of the deceased. These persons usually only receive compensation for their time expended, but they do not usually have a right to the estate as such, even though the deceased may have made provision for the executor in his Will.

f) Article 68(f) 10 See also the comments on this element of Art. 65.

The surname of the deceased is not always the surname at birth. It may be that the surname has been changed because the deceased married under a law which changes the name of the person to that of their 2

Report of the Max Planck Institute, nr. 287.

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Article 68 paras. 11–13

spouse. In other countries married persons retain their own name but may use the name of their spouse. Art. 65 states that information regarding the spouse or partner of the deceased is required. It is remarkable that this information is not part of the ECS itself. Only the civil status and under sub-paragraph (h) a marriage contract or partnership contract is to be mentioned in the ECS, but not the fact that the deceased was married, registered or cohabiting with someone if there is no such contract, notwithstanding that this may be relevant for the succession, as already stated in the comments on Art. 65. It seems that that information can provided under sub-paragraph (j), because otherwise the information as to the position of the heir etc cannot properly be established. The address that is to be inserted in the application is not specified in 11 the Regulation. The term “address” that is used, is not “habitual residence” as mentioned in other instruments. Therefore it seems to point to the official address, the address that is registered as the person’s address, if the law of the Member State contains the requirement for such a registration. In cases where the address of a person is derived from that of a legal representative, for example children or persons with an impairment or elderly persons who are not fully legally capable and whose legal address is defined as the address of their legal representative, it seems that the place of the official registration is to be noted in the ECS. This address is necessary to identify the deceased since this is the legal address. It is remarkable that in the ECS there is no explicit space to State the 12 place of the habitual residence of the deceased, unless it is relevant for the position of the heirs etc. Then it can be mentioned under sub-paragraph (i). This may be relevant for example if the applicable law is to be determined by the last habitual residence of the deceased, see Art. 21.

g) Article 68(g) The details concerning the beneficiaries are those of the heir(s) or lega- 13 tees having direct rights in the succession of the deceased. These persons have rights which they have to prove when dealing with third parties, for example if they wish to have a property transferred into their names or if they want to withdraw funds from the deceased’s bank account. Barbara Reinhartz

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Article 68 paras. 14, 15

14 The names and the identification number that are to be set out in the

ECS can be checked against the personal documents that the heirs or legatees use to identify themselves when approaching third parties in order to show that they now are the rightful owners of those assets.

h) Article 68(h) 15 The applicable property regimes in sub-paragraph (h) have to be deter-

mined according to the private international law of the issuing authority. Whilst there are still no harmonised private international law rules as to the applicable law for matrimonial property regimes and registered partnerships, the ECS indirectly forces the other Member States to follow the PIL rules of the issuing authority. This is one of the negative consequences of the fact that the Regulation on succession is entering into force before the two other proposed Regulations on matrimonial and partnership regimes enter into force. This problem is insoluble for the time being.3 The matrimonial property regime of the deceased in some cases also determines (part of the) rights of the surviving spouse.4 The matrimonial property regime also determines the extent of the estate of the deceased: if the spouses had separation of property as their regime, the assets of the deceased form his estate; if the spouses had community property, the estate of the deceased will be his portion of the community property and – if applicable – also any separate property that he had.

3

4

For the texts see COM/2011/0127 final and COM(2011) 127/2. See also the Report of the Max Planck Institute, nr. 322 et seq; Buschbaum/Simon, ZEV 2012, p. 527 and Lange, DNotZ 2012, p. 173. Goossens/Verbeke, nr. 49. A well known example of this is the German § 1371 BGB although one may have doubts as to whether this provision is part of matrimonial property law or part of the law of succession. If the latter, this information belongs under sub-paragraph (j) and the question whether this provision is applicable, is determined by the law of succession rather than by the law which is applicable to the matrimonial property regime. This is not the only legal system where this issue arises, see Torfs/Van Soest, Liber Amicorum Pintens, 2012, p. 1445 who cite an example concerning Belgian law and Algerian law where the surviving spouse may lose the protection that he can normally rely on.

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Article 68 paras. 16–20

These effects may be altered by a marriage contract, so that it is impor16 tant that the ECS gives any information on this. If the deceased was not married but lived in a partnership, it depends on 17 how the applicable law5 defines the legal effects of that (registered) partnership. If the effects resemble those of a marriage, then those have to be applied.6 This includes the effects of any partnership contract that the deceased may have entered into. If according to the applicable law the partnership can be registered but 18 has different effects to those of a marriage, the specific rule of that law have to be followed, including the question as to whether those partners may modify the legal framework by entering into a partnership contract.7 It is also possible that the partnership of the deceased was not regis- 19 tered. Then the fact that he was living together with someone, may in itself have legal consequences on the succession. Therefore the fact that the deceased lived together with someone else, must be set out in the ECS. Even though the partnership was not registered, it is also possible that the deceased had entered into a cohabitation contract which also has effects on the succession.8 In all of these cases the information about the legal effects of the mar- 20 riage, the registered partnership or the unregistered partnership must be stated in the ECS, including details of the contracts that the deceased had entered into with his spouse or partner.

5 6

7

8

See the comment on Art. 65 para. 3 sub para (j). For example this is the case in the Netherlands, Art. 80b Book 1 of the Dutch Civil Code. See for example the Belgian ‘wettelijke samenwoning’, Art. 1478 of the Belgian Civil Code, also covering a cohabitation contract for those registered couples. See Goossens/Verbeke, nr. 68 et seq. In the Netherlands for example it is quite common to make a cohabitation contract with a division of the community property of the partners in favour of the surviving partner in case of the death of the other partner (verblijvingsbeding).

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Article 68 paras. 21–26

i) Article 68(i) 21 The law applicable to the succession is to be determined according to

Chapter III of this Regulation. Relevant is, for example, the habitual residence of the deceased at the time of death for Art. 21, or the fact that he has made a choice of law regarding his succession under Art. 22. The issuing authority must establish whether this choice of law is valid according to the Regulation and it would seem that this has to be stated in the ECS as well.9

j) Article 68(j) 22 In the ECS it must be stated as to whether there is a Will or not. If there

is a Will, the ECS has to set out the consequences that it has for the rights of heirs etc. It may be that the deceased has made provision for an executor or an administrator. This is also information which is covered by this sub-paragraph.10 23 If there is no Will, the succession will be intestate; therefore the appli-

cable law will determine, for example, who is an heir or who is a beneficiary in another sense. It may determine who has a reserved share and what form that takes (a claim against the estate or a right in rem to assets of the estate) or who is a beneficiary in the common law sense of the word. 24 If the succession is intestate, the applicable law will also make any pro-

vision for the rights of executors, administrators etc. If there is a Will, it may have provisions on executors etc. 25 All this information is to be set out here. There is a certain overlap with

the provision of sub-paragraph (o) where the powers of the executor or administrator and the restrictions on those powers are listed. It will depend on the form that has not yet been issued, as to how this has to be completed.11

k) Article 68(k) 26 If heirs or other beneficiaries have accepted or waived their rights under 9 10 11

For transitional aspects see Art. 84. For transitional aspects see Art. 84. Buschbaum/Simon, ZEV 2012, p. 527.

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Article 68 paras. 27, 28

the succession, this is important information for third parties. In the case of a waiver, the heir will usually no longer have any rights under the succession. In the case of a regular acceptance, it will depend on the applicable law, as to the effects that the acceptance has. In some Member States the effects of regular acceptance are that an heir becomes personally liable with his own assets for the debts of the deceased that were still owing upon his death,12 while in other Member States an accepting heir never becomes personally liable with his own assets.13 In many Member States beneficiaries have a certain period of time dur- 27 ing which they may decide on the acceptance or waiver of the succession. If so, this is relevant for the purpose of the ECS because it may determine the status of another heir who may be influenced by that decision. It will depend on the applicable law as to whether it is possible to issue a Certificate in the meantime.14

l) Article 68(l) In some countries it is usual to list all the assets of the deceased and to 28 give details on the assets or rights to which each heir is entitled.15 It is clear that it is time consuming to establish all of this information before issuing an ECS. Often it will be easier to establish the share to which each heir is entitled, although in certain cases this may also take some time, for example if all children of the deceased receive an equal share 12

13 14

15

For example in the Netherlands, this is the effect of ‘zuivere aanvaarding’, Art. 192 Book 4 of the Dutch Civil Code, unless an heir accepts “onder het voorrecht van boedelbeschrijving’, art. 190 and 184 Book 4 of the Dutch Civil Code. This seems to be the case in the Czech Republic. See Leszay, EP Study, nr. 2.45. In Dutch law we find an example for this in Art. 18 Book 4 of the Dutch Civil Code. In national cases it is accepted that in the meantime a national Certificate can be issued but it must mention that the period of Art. 18 is still running until a certain date. Third parties are warned to make further enquiries into this subject before they know what the rights of the heirs are. If Dutch law is applicable to the succession, it seems possible to issue an ECS with that kind of information in it, instead of waiting for the period of Art. 18 to pass, which is 3 months after the date of death, but the Regulation does not address this issue. This is the case in Finland, the Czech Republic, Slovakia, Austria and Hungary, Leszay, EP Report, nr. 2.4.6.

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Article 68 paras. 29–33

but it is not yet clear how many children the deceased had and if they are all still alive or themselves have children who take their place in the succession. 29 If the ECS is issued in a Member State that usually does not list all of the

assets, it will not be likely that the issuing authority will list all the assets, especially if some of the assets are situated in the issuing Member State. 30 In all cases one must remember that the information that is to be in-

cluded in the ECS is linked to the purpose of the application. Even if it is common in the Member State where the ECS is issued to wait until all the information about the assets of the deceased is gathered and it is decided how the assets and debts are to be divided between the beneficiaries, that information is not necessary if only a partial ECS is necessary to establish the rights and duties of an executor. Then the ECS should be issued as soon as all the necessary information is available. In that case the authority may not delay the issuing of the ECS because all the other information is not yet available. 31 Under this heading is also included the fact that according to the Will or

the applicable law the estate may be divided between the heirs in a certain way. In that case it may be that the rights of certain heirs are curtailed in favour of those of the surviving spouse or registered partner. In these cases it will be difficult to describe extensively the rights that the surviving spouse has as an owner. In some legal systems it makes sense to describe that person as ‘owner’ and to mention the restrictions of the rights of the children in sub-paragraph (n).16

m) Article 68(m) 32 If there are legatees, it is useful to describe the rights that they have;

whether they have direct rights in rem in the succession or a monetary claim against the heirs. 33 It depends on the purpose of the ECS, whether a list of assets for any

given legatee also has to be a part of the ECS. This could make sense, if the legatee has direct rights in the succession if, for example, that inhi16

For example in Dutch law, Art. 13 Book 4 of the Dutch Civil Code. Leszay, EP report nr. 2.4.8.

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Article 68 paras. 34–36

bits the rights of heirs. If that effect does not exist because, for example, the heir only needs the ECS to transfer a house in another Member State into his name and the claim of the legatee against him as an heir is a monetary claim, then it is not important to set out in the ECS the rights of that legatee.17 If the ECS is applied for by an executor, it may be useful for that exe- 34 cutor to know, the extent of the rights of legatees, since he may have to satisfy their claims before he can hand over the residue of the estate to the heirs after completing the administration.

n) Article 68(n) If under sub-paragraph (l) a legal division is reported that may have 35 certain effects concerning the rights of heir(s) or legatee(s), this must be set out here. As already stated in sub-paragraph (l) this may be the case, for example, in Dutch law. Because of a wettelijke verdeling, the rights of certain heirs are curtailed under Article 13 of Book 4 of the Dutch Civil Code.18 The assets and debts pass to the surviving spouse or registered partner; the children of the deceased only have a monetary claim against the surviving spouse or registered partner.19 The surviving partner is entitled to the sole ownership of the assets and can insist on immovables in another Member State being transferred solely into his name, even though the children of the deceased are also heirs.

o) Article 68(o) In each Member State the powers of executors and/or administrators 36 are different. Sub-paragraph (o) requires a list of the rights and restrictions of the powers that those persons have. It may for example relate to the question as to whether the heirs have any rights during the time that 17

18

19

Leszay, EP report nr. 2.4.6. The transferral of the immovable property to the name of the heir will be completed according to the lex rei sitae, see Art. 2 paragraph 2, sub (k) and (l) of the Regulation. See Buschbaum/Simon, ZEV 2012, p. 527. Buschbaum/Simon, ZEV 2012, p. 527. They mention that French and Italian succession laws also have this kind of legal or testamentary division. The children may also have a right to the transfer of certain assets if the surviving spouse or registered partner remarries but space does not permit detailed elaboration.

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Article 68 paras. 37, 38; Article 69

the assets are still in the hands of the executor or administrator, or the right of the executor or administrator to sell assets of the estate in order to pay the debts and if that is the case whether they have to consult the heirs as to the choice of the assets that are sold and in which order. 37 Sub-paragraph (o) also gives space to set out the question of any limits

in time of the powers of those persons. Under some laws, the powers of the executor are, for example, limited to a year.20 38 In some other Member States there are two kinds of executors: one who

has the duty to pay the debts of the estate and then hand over the residue to the heirs; the other that administers the share of an heir for a certain or indefinite time, for example, if the heir is a minor or is not capable of managing his own affairs because of an impairment or an illness, as in Dutch law (testamentair bewind).21 There may be time limits which must be set out in the ECS under sub-paragraph (o), arising either under the applicable law or from the Will.

Article 69: Effects of the Certificate 1. The Certificate shall produce its effects in all Member States, without any special procedure being required. 2. The Certificate shall be presumed to accurately demonstrate elements which have been established under the law applicable to the succession or under any other law applicable to specific elements. The person mentioned in the Certificate as the heir, legatee, executor of the Will or administrator of the estate shall be presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated in the Certificate. 3. Any person who, acting on the basis of the information certified in a Certificate, makes payments or passes on property to a person mentioned in the Certificate as authorised to accept payment or property shall be considered to have transacted with a person with authority to accept payment or prop-

20 21

Lehmann, DStR 2012, p. 2087 mentions time limits in Belgian and Italian law. Lehmann, DStR 2012, p. 2087, calls it Dauertestamentsvollstreckung.

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Article 69 para. 1

erty, unless he knows that the contents of the Certificate are not accurate or is unaware of such inaccuracy due to gross negligence. 4. Where a person mentioned in the Certificate as authorised to dispose of succession property disposes of such property in favour of another person, that other person shall, if acting on the basis of the information certified in the Certificate, be considered to have transacted with a person with authority to dispose of the property concerned, unless he knows that the contents of the Certificate are not accurate or is unaware of such inaccuracy due to gross negligence. 5. The Certificate shall constitute a valid document for the recording of succession property in the relevant register of a Member State, without prejudice to points (k) and (l) of Article 1(2). I. II. III. IV. V.

General Paragraph 1 Paragraph 2 Paragraph 3 Paragraph 4 1. Legal concepts not known in the law of succession of the issuing Member State

1 2 4 8 13

2. Effect of the presumption of correctness of the ECS between two persons who claim conflicting rights to the succession VI. Paragraph 5

15 16

14

I. General Art. 69 addresses a very important practical issue for international suc- 1 cessions; the ECS will be recognized in all Member States, without any special procedure being required. The ECS will be presumed to be accurate and third parties may in general act on its contents. It is a valid document to present to registers of property to have the property registered in one’s name. The formalities of the transfer itself will be governed by the lex rei sitae. Although the ECS is primarily intended for use in another Member State, it may also be used in the State where it was issued, see Art. 62 para. 3.1

1

This is based this on the principle of subsidiarity, Leszay, EP report p. 9.

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Article 69 paras. 2–6

II. Paragraph 1 2 The ECS is recognized in all Member States, without any special proce-

dure. Art. 74 adds that no legalisation or other similar formalities shall be required.2 This will make the position much easier compared to that before the Regulation becomes fully effective, when national Certificates were not usually recognized in other Member States. Persons who had rights under an international succession had to obtain national Certificates according to each national law in the States where the assets were located. 3 Under the Regulation it is not yet clear whether translations of the ECS

will be necessary if it is to be used in another Member State. This will also depend on the final version of the form. If any translation costs arise, they will have to be borne by the user of the ECS.3

III. Paragraph 2 4 The ECS shall be presumed to demonstrate accurately all the elements

which have been established under the law applicable to the succession or under any other law applicable to specific elements. This includes all of the facts that are set out in the ECS and the determination of the applicable law for the succession. 5 If anything is not correct, and it is possible to prove otherwise, then the

ECS must be amended, under Art. 71. As long as the contrary is not proved, the contents of the ECS are presumed to be correct.4 6 One of the issues that is not addressed in the Regulation is the question

on the classification of certain legal concepts that hover between matrimonial property law and succession law, for example the German § 1371 BGB, where in certain cases the surviving spouse receives a quarter of the estate of the deceased because of a provision of matrimonial property law. The presumption of correctness only applies to matters of 2 3 4

Goossens/Verbeke, nr. 60. Report of the Max Plank Institute, nr. 303. Buschbaum/Simon, ZEV 2012, 2, p. 527; Rechberger, ÖJZ 2012, p. 16, footnote 32.

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Article 69 paras. 7–9

succession and not to these matters which also depend on the application of national PIL on matrimonial property law as has been mentioned above in the comments on Art. 65.5 The Regulation states that the person mentioned in the ECS as the heir, 7 legatee, executor of the Will or administrator of the estate shall be presumed to have the status mentioned in the ECS and to have the rights and powers stated in the ECS, with no conditions or restrictions being attached to those rights or powers other than those stated in the ECS. If a person presents an ECS to show that he is an heir and therefore he is entitled, for example, to the assets that are held in a safe in a bank or that he is entitled to withdraw funds from a bank account that was held in the name of the deceased, the bank must assume that the person is the heir as stated in the document and that he is entitled, unless stated otherwise; see the comments on Art. 68.

IV. Paragraph 3 According to this paragraph, any person who, acting on the basis of the 8 information certified in an ECS, makes payments or passes on property to a person mentioned in the ECS as authorised to accept payment or property shall be considered to have transacted with a person with authority to accept payment or property, unless he knows that the contents of the ECS are not accurate or is unaware of such inaccuracy due to gross negligence. The question remains as to how to prove that a third party knew that 9 the contents of an ECS were not accurate. The Regulation leaves that open.6 It seems that this has to be established in each Member State according to its own private international law. This may lead to the effect that in some Member States the third party is considered to know 5

6

Dörner, ZEV 2012, p. 508. The solution of this problem may lie in German matrimonial property law itself; a different result not usually applied to national succession cases, may offer a solution in international cases where § 1371 BGB poses a real problem. § 1371 BGB is not applied and instead the normal settlement of the claims of the Zugewinngemeinschaft regime are met, as in cases of divorce. Report of the Max Planck Institute, nr. 320.

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Article 69 paras. 10–12

that the ECS is not correct while in other Member States where the rules on proof are stricter, that fact is not legally established and therefore the third person may continue to act on the ECS. These differences are not solved under the Regulation. 10 This paragraph concerns the situation in which, for example, the heir or

executor is accepting payment of a claim of the deceased. It also relates to the heir or executor accepting the transfer of property. In both cases the other party may assume that he has been discharged from payment when this person is mentioned in the ECS as being authorised to accept the payment. If it turns out later that this was not the case, the third party is not obliged to make a further payment to the correct person. 11 This rule of good faith may be defined in a different way from that in

the national provisions of the Member States. There, for example, another level of negligence may be used.7 Since the Regulation overrides national rules, the good faith rule of the Regulation will be applicable in international cases. In national cases the Member States will still use their own rules concerning the protection of third parties, even if it leads to a limited protection of good faith as for example in Belgian law.8 It is possible that in time this will lead to a kind of indirect harmonisation of the internal national rules on good faith but this of course is not mandatory. 12 The text of paragraphs 3 and 4 seems to indicate that a third party does

not have to receive a copy of the ECS. The third party may rely on the fact that the person holding the ECS has the rights set out in the ECS. Paragraph 4 deals with the position of an heir or executor disposing of property from the estate.

7

8

See for example the German provisions on good faith, Buschbaum/Simon, ZEV 2012, p. 527. According to German law it would still be possible in certain cases to act in good faith, while this is not possible under the ECS, see § 2366 BGB. Janszen, p. 7. For Belgian law see Goossens, Notarieel en Fiscaal maandblad 2013/7, p. 227, nr. 13-17. She also compares several European laws on this issue.

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Article 69 paras. 13, 14

V. Paragraph 4 In this paragraph the roles set out in paragraph 3 are reversed. The per- 13 son mentioned in the ECS disposes of an asset of the estate. In this case the good faith rule is the same as in paragraph 3; the third party is protected unless he knows that the contents of the ECS are not accurate or is unaware of such inaccuracy due to gross negligence. The comments on the definition of good faith under paragraph 3 also apply here. The text of paragraphs 3 and 4 seem to indicate that a third party does not have to receive a copy of the ECS.9 The third party may rely on the fact that the person holding the ECS has the rights that are mentioned in the ECS.10

1. Legal concepts not known in the law of succession of the issuing Member State Whilst the protection of good faith in the paragraphs 3 and 4 of Art. 69 14 are considered, the question arises as to how to deal with legal concepts that are part of the applicable succession law but which are not known in the succession law in the issuing Member State. This might concern an heir who is entitled to all of the assets of the deceased because of the doctrine of saisine from a civil law State, but who needs to obtain assets in a common law Member State where this concept is not known. It might also, for example, concern an executor who has certain rights according to the applicable succession law, as mentioned in Art. 68 sub para (o), while these rights do not apply to an executor in the Member State where he wants to act.11 How is this problem solved? Unfortunately there is no solution in the Regulation. In the Recitals we find the suggestion that a national body in each Member State should adapt these foreign legal concepts so far as possible into concepts that are familiar to the issuing Member State, but this would have to be set out in the law that implements the Regulation 9

10

11

Buschbaum/Simon, ZEV 2012, p. 528, mention this explicitly since in an earlier draft version of paragraph 4 this was not the case. J. Mayer, Münchner Kommentar, § 2353, para. 195. It is not quite clear whether the opinion of Mayer disagrees with what Buschbaum/Simon State in ZEV 2012, p. 528. Buschbaum/Simon, ZEV 2012, p. 528.

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Article 69 paras. 15–17

in each Member State. It is questionable as to whether the Regulation allows this,12 but it seems the only way to solve this problem in a practical way without harmonising the internal national laws on succession, matrimonial property law, trusts, land registry etc.

2. Effect of the presumption of correctness of the ECS between two persons who claim conflicting rights to the succession 15 It is not clear whether the presumption of reversal of proof works in all

situations in such a way that the other party must prove that the ECS is not correct, or whether an exception must be made in relation to two persons who claim conflicting rights under the succession.13

VI. Paragraph 5 16 The ECS shall constitute a valid document for the recording of succes-

sion property in the relevant register of a Member State, without prejudice to points (k) and (l) of Art. 1 para. 2. The applicable law concerning the registers themselves and the applicable law concerning the formalities that have to be followed in order to transfer the property, are determined by the lex rei sitae.14 17 If the estate contains rights in legal entities, then the law that is appli-

cable to that legal entity determines how those rights are transferred 12

13

14

Dörner, ZEV 2010, p. 228; Dörner, ZEV 2012, p. 509. Dörner offers the idea of a national authority which can “translate” foreign legal concepts into national concepts. That authority could make a kind of addendum to the ECS to help national authorities when for example they have to transfer registered property while the national register does not offer the possibility to register those foreign concepts. The addendum that he proposes, is limited in its scope to the use within the Member State where it is issued. Fritz Sturm/Gudrun Sturm, Das Europäische Nachlasszeugnis. Zum Vorschlag der Kommission vom 14. Oktober 2009, Zbornik PFZ 2012, 62 (1-2), p. 349, gives some examples for practical solutions in German law. See Rechberger, ÖJZ 2012, 16, with a reference to Kousoula, Europäischer Erbschein, 2009, p. 169. Buschbaum/Simon, ZEV 2012, p. 529.

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Article 69 paras. 18–20

and under what conditions. This falls outside the scope of the Regulation, see Art. 1 para. 1 sub paras. (h), (k) and (l).15 In some Member States it is necessary to have an authentic instrument 18 in order to transfer immovable property or for the registration of rights in legal entities.16 The question arises whether an ECS can be classified as such. This depends on the facts, mentioned in Art. 3 para. 1 sub para. (i) of the Regulation; which authority issued the ECS and the signature and the content of the instrument. This is relevant for the question as to whether or not the content is sufficiently reliable that the register can be amended to put the property into the name of the new owner without further prejudice.17 Also if under the applicable succession law a separate transfer of assets 19 is not necessary, for example because a division of the estate will apply automatically on the moment of death, if that legal concept is not known in the Member State where the property is situated, it will still be necessary to follow the rules for property transfer of the lex rei sitae; see Art. 69 para. 5 in connection with Art. 1 para. 2 sub paras. (k) and (l), in combination with Art. 31 of the Regulation.18 This also includes the rules on the payment of taxes if that is mandatory in a certain Member State before the property can be transferred to the name of the heir.19 Also the question as to what is part of the succession and what is not – in other words: what assets belonged to the deceased and what did not – is determined by the lex rei sitae as this issue is outside the scope of the Regulation.20 The ECS will only be a title for the transfer of property if the lex regis- 20 trationis permits. If, for example as in Belgium, the transfer of registered property can only be dealt with between living persons, it is not

15 16 17

18 19 20

Buschbaum/Simon, ZEV 2012, p. 529. Buschbaum/Simon, ZEV 2012, p. 529. Buschbaum/Simon, ZEV 2012, p. 528, with a reference to the decision of the CJEU, 17 June 1999, Unibank, DNotZ 1999, p. 919. J. Mayer, Münchner Kommentar, § 2353 BGB, para. 196. Janszen, p. 7. Buschbaum/Simon, ZEV 2012, p. 528.

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Article 69 para. 21; Article 70 paras. 1, 2

possible to use an ECS as a title for transfer after the death of the deceased.21 21 Recital 71 states clearly that the ECS cannot be used as an enforceable

title in its own right.

Article 70: Certified copies of the Certificate 1. The issuing authority shall keep the original of the Certificate and shall issue one or more certified copies to the applicant and to any person demonstrating a legitimate interest. 2. The issuing authority shall, for the purposes of Articles 71(3) and 73(2), keep a list of persons to whom certified copies have been issued pursuant to paragraph 1. 3. The certified copies issued shall be valid for a limited period of six months, to be indicated in the certified copy by way of an expiry date. In exceptional, duly justified cases, the issuing authority may, by way of derogation, decide that the period of validity is to be longer. Once this period has elapsed, any person in possession of a certified copy must, in order to be able to use the Certificate for the purposes indicated in Article 63, apply for an extension of the period of validity of the certified copy or request a new certified copy from the issuing authority.

I. Paragraph 1 1 The issuing authority shall keep the original of the ECS and shall issue

one or more certified copies to the applicant and to any person demonstrating a legitimate interest. As stated above under Art. 63, this may be a creditor of the deceased. In this way he can find out who to turn to for payment. This may be an heir who has become liable for the debts of the deceased because of the doctrine of saisine; it may also be an executor or an administrator whose duty it is to pay the debts of the estate. 2 It may be different in some Member States, where the original of a na-

21

Goossens/Verbeke, nr. 78.

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Article 70 paras. 3–6

tional Certificate may be issued to the applicant,1 but the original of an ECS is always kept by the issuing authority and only copies are issued.

II. Paragraph 2 In order to keep track of the certified copies that are issued, the issuing 3 authority must keep a list of persons to whom certified copies have been issued according to paragraph 1. This is necessary in order to inform all those persons if an ECS is rectified, modified or withdrawn according to Art. 71 para. 3, or if the ECS is suspended under Art. 73 para. 2. Some changes in the national laws of the Member States may be required in order to establish such a list at the competent authority. This list may function in addition to any national system that is used to keep track of the national Certificates. Normally the validity of the ECS is limited to 6 months, but in these 4 cases it will be necessary to inform people to whom copies have been issued that the ECS is no longer correct and/or valid.

III. Paragraph 3 The certified copies issued are valid for a limited period of six months,2 5 and this is to be indicated on the certified copy by way of an expiry date. In exceptional cases, that are appropriately justified, the issuing authority may, by way of derogation, decide that the period of validity is to be longer. Once this period has elapsed, any person in possession of a certified 6 copy must, in order to be able to use the ECS for the purposes indicated

1 2

For example in Germany, see Buschbaum/Simon, ZEV 2012, p. 526. In an earlier version of the Regulation, it was limited to three months, see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN: EN:PDF. In the final text that period is extended to six months, still shorter than the validity of some national Certificates. If the lex succesionis has a longer validity period, this does not apply to an ECS that is issued in that succession. See Goossens/Verbeke, nr. 64, footnote 81 for more information about the German doctrine on this issue.

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Article 70 paras. 7–11

in Art. 63, apply for an extension of the period of validity of the certified copy or request a new certified copy from the issuing authority. The idea behind this limited validity is to prevent the circulation of European Certificates which are incorrect. Even if the persons to whom these Certificates were issued are, as far as possible, informed of amendments or cancellation, the issuing authority may not always succeed in doing so. This problem is minimized by the fact that any incorrect ECS will lose its validity within six months. 7 But still this may cause serious problems. For example in the meantime

a person, who is wrongly identified as an heir, for example, may succeed in emptying all bank accounts of the deceased and take possession of all other assets, and leave for a country far away from where it may be virtually impossible to recover the assets.3 Alternatively, the person who is wrongly identified as one of the heirs, may block all decisions concerning the succession, while without his opposition the estate would have been correctly administered or distributed. 8 Another problem might be that one of the true heirs is not identified

and his cooperation is necessary in order to administer the estate correctly or to distribute it. As a consequence all or many actions of the persons who were acting in the meantime, may be challenged, unless this is subject to the protection of Art. 69. 9 These are risks that the Regulation takes in order to facilitate the ad-

ministration and distribution of an international succession. 10 For example, in the Max Planck Institute report the idea of a register

was developed, in which one could verify if an ECS was still valid, but this idea has not been implemented in the final version of the Regulation.4 11 This limitation of the validity of the ECS may be a reason to apply for a 3 4

See Goossens/Verbeke, nr. 64. Report of the Max Planck Institute, nr. 341 et seq.

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national Certificate in the Member State where items of the estate are located. This is still possible under the Regulation, but as that Certificate is not intended for international use, it does not have the advantages of the ECS, set out in Art. 69 of the Regulation.5

Article 71: Rectification, modification or withdrawal of the Certificate 1. The issuing authority shall, at the request of any person demonstrating a legitimate interest or of its own motion, rectify the Certificate in the event of a clerical error. 2. The issuing authority shall, at the request of any person demonstrating a legitimate interest or, where this is possible under national law, of its own motion, modify or withdraw the Certificate where it has been established that the Certificate or individual elements thereof are not accurate. 3. The issuing authority shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 70(1) of any rectification, modification or withdrawal thereof.

I. General It may be that an ECS is not completely correct. There may be a minor 1 clerical error or a more serious error. The first is addressed in paragraph 1; the more serious errors are addressed in paragraph 2.

II. Paragraph 1 The issuing authority shall, at the request of any person demonstrating 2 a legitimate interest or of its own motion, rectify the ECS in the event of a clerical error. This may for example be an error in the spelling of the names or birth dates of the persons mentioned in the ECS. In any case it is an error which is obvious and does not change the material content of the ECS.

5

See the comments on Art. 62 about the use of two Certificates at the same time.

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III. Paragraph 2 3 The issuing authority shall, at the request of any person demonstrating

a legitimate interest or, where this is possible under national law, of its own motion, modify or withdraw the ECS where it has been established that the ECS or individual elements thereof are not accurate. This concerns more serious errors in the ECS. These errors concern the material content of the ECS; for example an heir is not mentioned in the ECS while according to the applicable law he is an heir to the estate. This may happen when it was assumed that another person – the person who is mentioned as heir in the ECS – was still alive at the moment of death of the deceased while that person had already died and one or more children took his place as heir(s) according to the applicable law. The child or children then should be mentioned as heir(s) instead of their parent who had died before the deceased. 4 It depends on the applicable law whether the issuing authority must

wait for an application of a person demonstrating a legitimate interest to modify or withdraw the ECS or that authority may modify or withdraw the ECS of its own motion. This is relevant if the validity period of 6 months has not yet expired when the mistake is discovered.

Article 72: Redress procedures 1. Decisions taken by the issuing authority pursuant to Article 67 may be challenged by any person entitled to apply for a Certificate. Decisions taken by the issuing authority pursuant to Article 71 and point (a) of Article 73(1) may be challenged by any person demonstrating a legitimate interest. The challenge shall be lodged before a judicial authority in the Member State of the issuing authority in accordance with the law of that State. 2. If, as a result of a challenge as referred to in paragraph 1, it is established that the Certificate issued is not accurate, the competent judicial authority shall rectify, modify or withdraw the Certificate or ensure that it is rectified, modified or withdrawn by the issuing authority. If, as a result of a challenge as referred to in paragraph 1, it is established that the refusal to issue the Certificate was unjustified, the competent ju294

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dicial authority shall issue the Certificate or ensure that the issuing authority re-assesses the case and makes a fresh decision.

I. Paragraphs 1 and 2 1. Non-issue of an ECS is challenged Decisions taken by the issuing authority pursuant to Art. 67 may be 1 challenged by any person entitled to apply for an ECS. The challenge shall be lodged before a judicial authority in the Member State of the issuing authority in accordance with the law of that State. This does not concern decisions about the contents of the ECS, because problems arising from that are addressed in Art. 71. This concerns decisions not to issue an ECS, for example because the authority is of the opinion that the person applying for the Certificate is not an applicant as mentioned in Art. 63. Therefore it refused to issue an ECS to that person. If, as a result of a challenge as referred to in this paragraph, it is estab- 2 lished that the refusal to issue the ECS was unjustified, the competent judicial authority shall issue the ECS or ensure that the issuing authority re-assesses the case and makes a fresh decision, as is stated in the last sentence of paragraph 2 of this Article. In this manner the incorrect decision is rectified.

2. Challenge of a decision to rectify, modify or withdraw an ECS This challenge may be undertaken by any person demonstrating a le- 3 gitimate interest. This may be the applicant but also any other person with a legitimate interest, for example a creditor of the estate. The application must be lodged before a judicial authority in the Member State of the issuing authority in accordance with the law of that State.

3. Application for a suspension of an ECS Art. 73 makes it possible to suspend the effects of an ECS as long as a 4 procedure to modify, rectify or withdraw an ECS is pending. The susBarbara Reinhartz

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pension may be applied for by any person demonstrating a legitimate interest. In Art. 72 these persons are given the right to challenge a decision to suspend the effects of the ECS. Any person demonstrating a legitimate interest may challenge this decision. The application must be lodged before a judicial authority in the Member State of the issuing authority in accordance with the law of that State.

Article 73: Suspension of the effects of the Certificate 1. The effects of the Certificate may be suspended by: (a) the issuing authority, at the request of any person demonstrating a legitimate interest, pending a modification or withdrawal of the Certificate pursuant to Article 71; or (b) the judicial authority, at the request of any person entitled to challenge a decision taken by the issuing authority pursuant to Article 72, pending such a challenge. 2. The issuing authority or, as the case may be, the judicial authority shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 70(1) of any suspension of the effects of the Certificate. During the suspension of the effects of the Certificate no further certified copies of the Certificate may be issued.

I. Paragraph 1 1 The effects of the ECS may be suspended by:

1. Sub-paragraph (a) 2 This procedure is complementary to the procedure for the issuing au-

thority to modify or withdraw an ECS. While the procedure to modify or withdraw an ECS is pending, it may be wise to request a suspension of the ECS since during the time the ECS is suspended, no further certified copies of the ECS may be issued, as is stated in the last sentence of Art. 73, para. 2. This procedure to obtain a suspension is limited to any

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person demonstrating a legitimate interest in the suspension. These are the persons who may apply for an ECS according to Art. 65.1

2. Sub-paragraph (b) While a person challenges a decision of the issuing authority under 3 Art. 72, it may also be wise to ask for a suspension of an ECS if this has been issued under Art. 67. Also during this suspension, no further certified copies of the ECS may be issued, as is stated in the last sentence of Art. 73, para. 2. This procedure can be requested by any person entitled to challenge a decision taken by the issuing authority pursuant to Art. 72. This range of persons is wider than that under sub-paragraph (a).2 This may include for example a person who claims to be an heir but has not yet been recognized as such. He may want to start the suspension procedure in order to prevent the heir who was identified as such in the ECS disposing of any of the assets of the estate or being able to access the bank accounts of the deceased. A judicial authority must decide if that person has the right to challenge a decision taken by the issuing authority pursuant to Art. 72. During this judicial procedure the ECS is suspended. In both cases the Regulation does not give a time limit during which the 4 suspension must be requested. This procedure may be started at any time.3

II. Paragraph 2 As stated before in the comment to paragraph 1, during the suspension 5 of the effects of the ECS no further certified copies of the ECS may be issued.4 Paragraph 2 declares in the first sentence that the issuing authority or, as the case may be, the judicial authority shall without delay inform all persons to whom certified copies of the ECS have been issued pursuant 1 2 3 4

Buschbaum/Simon ZEV 2012, p. 527. Lokin, NIPR 2013, p. 337, footnote 79. Buschbaum/Simon ZEV 2012, p. 527. Lokin, NIPR 2013, p. 337.

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to Art. 70 para.1 of any suspension of the effects of the ECS. As a result, these persons may no longer make use of the ECS during the suspension period.

Chapter VII: General and Final Provisions Article 74: Legalisation and other similar formalities No legalisation or other similar formality shall be required in respect of documents issued in a Member State in the context of this Regulation.

General 1 The Regulation states that no legalisation or other similar formality

shall be required in respect of documents issued in a Member State in the context of the Regulation. This is very important when it concerns the international use of an ECS. No legalisation or exequatur can be requested before it is used in another Member State.

Article 75: Relationship with existing international conventions 1. This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation. In particular, Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions shall continue to apply the provisions of that Convention instead of Article 27 of this Regulation with regard to the formal validity of wills and joint wills. 2. Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation. 3. This Regulation shall not preclude the application of the Convention of 19 298

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November 1934 between Denmark, Finland, Iceland, Norway and Sweden comprising private international law provisions on succession, wills and estate administration, as revised by the intergovernmental agreement between those States of 1 June 2012, by the Member States which are parties thereto, in so far as it provides for: (a) rules on the procedural aspects of estate administration as defined by the Convention and assistance in that regard by the authorities of the States Contracting Parties to the Convention; and (b) simplified and more expeditious procedures for the recognition and enforcement of decisions in matters of succession.

I. Paragraph 1 The Regulation shall not affect the application of international conven- 1 tions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation. In particular, Member States which are Contracting Parties to the 1961 2 Hague Wills Convention shall continue to apply the provisions of that Convention instead of Art. 27 of the Regulation with regard to the formal validity of Wills and joint Wills in relation to third States (see paragraph 2). For issues between third States and Member States who are contracting parties to the 1961 Hague Wills Convention1 that Convention will still be applicable, as is also stated in Recital 73. Recital 52 states that the rules of Art. 27 of the Regulation are consistent with those of the 1961 Hague Wills Convention but if the application of the rules of the 1961 Hague Wills Convention might differ from that of the Regulation, the 1961 Hague Wills Convention will be applied between the contracting States to that Convention. This may also apply to other international conventions as long as they 3 are not governed by paragraph 2 of this Article.

1

Many Member States are Member of this Hague Convention, see the status table of this Convention on http://www.hcch.net/index_en.php?act=conventions.status&cid=40.

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II. Paragraph 2 4 Notwithstanding paragraph 1, the Regulation shall, as between Member

States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation. 5 Bilateral or multilateral conventions on the issues that are covered by

the Regulation are overruled by the Regulation.

III. Paragraph 3 6 In contrast to paragraph 2, the Nordic 1934 Convention2 is not over-

ruled by the Regulation, in so far as it provides for: (a) rules on the procedural aspects of estate administration as defined by the Nordic 1934 Convention and assistance in that regard by the authorities of the States Contracting Parties to that Convention; and (b)simplified and more expeditious procedures for the recognition and enforcement of decisions in matters of succession.3

Article 76: Relationship with Council Regulation (EC) No 1346/2000 This Regulation shall not affect the application of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings).

1 The EU Insolvency Regulation will be applicable if the deceased died

insolvent.1 In some Member States it is possible to declare insolvency of an estate after the death of the deceased; in other this is not possible, for example in the Netherlands where a special procedure is in place when the net worth of the estate is negative. 2

3 1

The Nordic Convention of November 19 1934 (NIADE) on inheritance, administration, and division of a deceased’s estate. See for example for Finland: http://www.successions-europe.eu/en/finland/topics/which-law-applies_can-ichoose-the-applicable-law-to-my-inheritance. See Recital 74. OJ L 160, 30.6.2000, p. 1.

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When this occurs in a European context, the Insolvency Regulation can 2 still be applied, even though the debtor has died. As the Max Planck Report states, it may be that the two Regulations will lead to different solutions concerning jurisdiction and applicable law.2 The proposal of the Max Planck Report was taken into account in finalising the text of the Regulation.

Article 77: Information made available to the public The Member States shall, with a view to making the information available to the public within the framework of the European Judicial Network in civil and commercial matters, provide the Commission with a short summary of their national legislation and procedures relating to succession, including information on the type of authority which has competence in matters of succession and information on the type of authority competent to receive declarations of acceptance or waiver of the succession, of a legacy or of a reserved share. The Member States shall also provide fact sheets listing all the documents and/ or information usually required for the purposes of registration of immovable property located on their territory. The Member States shall keep the information permanently updated.

On this topic the Recitals 75 and 76 State: 1 ”(75) In order to facilitate the application of this Regulation, provision should be made for an obligation requiring the Member States to communicate certain information regarding their legislation and procedures relating to succession within the framework of the European Judicial Network in civil and commercial matters established by Council Decision 2001/470/EC. In order to allow for the timely publication in the Official Journal of the European Union of all information of relevance for the practical application of this Regulation, the Member States should also communicate such information to the Commission before this Regulation starts to apply. (76) Equally, to facilitate the application of this Regulation and to allow

2

Report of the Max Planck Institute, nr. 356, gives several examples of problems that may arise.

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for the use of modern communication technologies, standard forms should be prescribed for the attestations to be provided in connection with the application for a declaration of enforceability of a decision, authentic instrument or court settlement and for the application for a European Certificate of Succession, as well as for the Certificate itself.” 2 The information frame work that is mentioned in Recital 75 already

exists, see http://www.successions-europe.eu/ where information on the rules on succession in all Member States can be found. The information is updated regularly.1 3 The standard forms that are mentioned in Recital 76 have not yet been

published. In an earlier draft version of the Regulation, a standard form was added2 but that is not the case in the final Regulation.

Article 78: Information on contact details and procedures 1. By 16 January 2014, the Member States shall communicate to the Commission: (a) the names and contact details of the courts or authorities with competence to deal with applications for a declaration of enforceability in accordance with Article 45(1) and with appeals against decisions on such applications in accordance with Article 50(2); (b) the procedures to contest the decision given on appeal referred to in Article 51; (c) the relevant information regarding the authorities competent to issue the Certificate pursuant to Article 64; and (d) the redress procedures referred to in Article 72. The Member States shall apprise the Commission of any subsequent changes to that information. 2. The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with

1 2

E.N. Frohn/B.F.P. Lhoëst, FJR 2010, p. 20. The original text, COM/2009/154 contained an example for such a form: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN: EN:PDF.

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the exception of the addresses and other contact details of the courts and authorities referred to in point (a) of paragraph 1. 3. The Commission shall make all information communicated in accordance with paragraph 1 publicly available through any other appropriate means, in particular through the European Judicial Network in civil and commercial matters.

This Article speaks for itself.

1

Article 79: Establishment and subsequent amendment of the list containing the information referred to in Article 3(2) 1. The Commission shall, on the basis of the notifications by the Member States, establish the list of the other authorities and legal professionals referred to in Article 3(2). 2. The Member States shall notify the Commission of any subsequent changes to the information contained in that list. The Commission shall amend the list accordingly. 3. The Commission shall publish the list and any subsequent amendments in the Official Journal of the European Union. 4. The Commission shall make all information notified in accordance with paragraphs 1 and 2 publicly available through any other appropriate means, in particular through the European Judicial Network in civil and commercial matters.

This Article speaks for itself.

1

Article 80: Establishment and subsequent amendment of the attestations and forms referred to in Articles 46, 59, 60, 61, 65 and 67 The Commission shall adopt implementing acts establishing and subsequently amending the attestations and forms referred to in Articles 46, 59, 60, 61, 65 and 67. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 81(2).

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1 The Commission shall adopt implementing acts establishing and sub-

sequently amending the attestations and forms referred to in Arts. 46, 59, 60, 61, 65 and 67. This concerns the procedure in succession cases (Art. 46), the acceptance of authentic instruments and procedures on that issue (Art. 59), the enforceability of authentic instruments (Art. 60), the enforcement of court settlements (Art. 61), the procedure concerning the application for an ECS (Art. 65), and procedures concerning the issue of the ECS (Art. 67). In the comments to these Articles further information on the issues can be found.

Article 81: Committee procedure 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

1 This Article speaks for itself.

Article 82: Review By 18 August 2025 the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation, including an evaluation of any practical problems encountered in relation to parallel out-of-court settlements of succession cases in different Member States or an out-of-court settlement in one Member State effected in parallel with a settlement before a court in another Member State. The report shall be accompanied, where appropriate, by proposals for amendments.

1 This Article speaks for itself. After 10 years the application of the Regu-

lation is to be reviewed.

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Article 83: Transitional provisions 1. This Regulation shall apply to the succession of persons who die on or after 17 August 2015. 2. Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed. 3. A Disposition of Property upon Death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession. 4. If a Disposition of Property upon Death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.

I. Paragraph 1 This Regulation shall apply to the succession of persons who die on or 1 after 17 August 2015. Therefore the succession of persons who have died prior to that date will be governed by the national private international law rules of the relevant Member States.

II. Paragraph 2 Where the deceased had chosen the law applicable to his succession 2 prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in accordance with the private international law rules which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed. Barbara Reinhartz

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3 Therefore it is relevant that even before the 17 August 2015 professional

advisors in succession matters, including notaries, take the rules of the Regulation into account when it comes to making a choice of law in succession matters. 4 If the deceased dies after 17 August 2015, but he made a choice of law

for his succession valid according to the rules of the Regulation while that choice would not have been valid according to the national rules of private international law of that moment, the choice of law will be still be valid under the Regulation.1 It will also be valid if the choice of law was made according to the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.2 5 In practice this opens the possibility to make a choice of law for the

whole of the succession according to the Regulation even though the applicable rules of international private law at the moment of the choice of law do not apply the chosen law to immovable property because in the applicable law this will be governed by the lex rei sitae. The choice of law for the whole succession is valid if the death occurs on or after 17 August 2015.

III. Paragraph 3 6 A Disposition of Property upon Death made prior to 17 August 2015

shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in accordance with the private international law rules which were in force at the time the Disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.

1

2

B.F.P. Lhoëst, Estate Planner Digitaal, 2012/09, p. 1-8; http://www.internationaal-familierecht.nl/artikel/recente-en-toekomstige-ontwikkelingen-het-internationaal-huwelijksvermogens-en-erfrecht-er-iets-nieuws-onder-de-zon. Dörner, ZEV 2012, p. 506.

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Therefore it is relevant that even before the 17 August 2015 professional advisors in succession matters, including notaries, take the rules of the Regulation into account when it comes to drafting a Disposition of Property upon Death. If the deceased dies after 17 August 2015, but he made a Disposition of 7 Property upon Death according to the rules of the Regulation at a time when that Disposition would not have been valid according to the private international law rules at that moment, the Disposition will be valid under the Regulation.3 It will also be valid if the Disposition was made according to the private international law rules which were in force at the time the Disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.

IV. Paragraph 4 If a Disposition of Property upon Death was made prior to 17 August 8 2015 in accordance with the law which the deceased could have chosen in accordance with the Regulation, that law shall be deemed to have been chosen as the law applicable to the succession. In this Article, the transitional rules for a choice of law are described.

9

In some cases a Disposition of Property upon Death does not contain a 10 choice of law but it is made according to a particular national law on succession. If that disposition had contained an explicit choice of law, and it would have been valid according to paragraph 1, then the disposition is also valid if it does not contain that explicit or implicit choice of law. An explicit or implicit choice of law has to be made according to the rules of this Article.4 This Article offers no solution for persons who were quite happy with 11 3

4

B.F.P. Lhoëst, Estate Planner Digitaal, 2012/09, p. 1-8; http://www.internationaal-familierecht.nl/artikel/recente-en-toekomstige-ontwikkelingen-het-internationaal-huwelijksvermogens-en-erfrecht-er-iets-nieuws-onder-de-zon. See the comments on Art. 83 para. 1 for further information.

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the intestacy law that was applicable before the Regulation entered into force and therefore made no Will. They will have to make a Will before 17 August 2015 to ensure that their last wishes will be carried out in the manner that they wish.5

Article 84: Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 17 August 2015, except for Articles 77 and 78, which shall apply from 16 January 2014, and Articles 79, 80 and 81, which shall apply from 5 July 2012. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

1 This Article contains the rules with regard to the entry into force for the

Member States of this Regulation. Those are all the Member States of the European Union except the United Kingdom, Ireland and Denmark, see Recitals 82 and 83.1 2 This Regulation was published in the Official Journal of the European

Union on 27 July 2012. Therefore it shall apply from 17 August 2015, except for Arts. 77 (Information made available to the public) and 78 (Information on contact details and procedures), which shall apply from 16 January 2014, and Arts. 79 (Establishment and subsequent amendment of the list containing the information referred to in Art. 3 para.2), 80 (Establishment and subsequent amendment of the attestations and forms referred to in Arts. 46, 59, 60, 61, 65 and 67) and 81 (Committee procedure), which apply from 5 July 2012. 3 This Regulation shall be binding in its entirety and directly applicable in

the Member States in accordance with the Treaties.

5 1

Lehmann, DStR 2012, p. 2088. The United Kingdom and Ireland have not opted in but they may opt in at a later date. Denmark has not taken part in the adoption of the Regulation.

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Annex

Annex COMMISSION IMPLEMENTING REGULATION (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (2), and in particular Article 46(3)(b) and Articles 59(1), 60(2), 61(2), 65(2) and 67(1) thereof, Whereas: (1) For proper application of Regulation (EU) No 650/2012 several forms should be established. (2) In accordance with Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States did not take part in the adoption of Regulation (EU) No 650/2012. Therefore the United Kingdom and Ireland are not taking part in the adoption of this Regulation. (3) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (4) The measures provided for in this Regulation are in accordance with the opinion of the Succession Committee,

2

OJ L 201, 27.7.2012, p. 107.

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HAS ADOPTED THIS REGULATION:

Article 1 1. The form to be used for the attestation concerning a decision in a matter of succession referred to in Article 46(3)(b) of Regulation (EU) No 650/2012 shall be as set out in Annex 1 as Form I. 2. The form to be used for the attestation concerning an authentic instrument in a matter of succession referred to in Articles 59(1) and 60(2) of Regulation (EU) No 650/2012 shall be as set out in Annex 2 as Form II. 3. The form to be used for the attestation concerning a court settlement in a matter of succession referred to in Article 61(2) of Regulation (EU) No 650/ 2012 shall be as set out in Annex 3 as Form III. 4. The form to be used for the application for a European Certificate of Succession referred to in Article 65(2) of Regulation (EU) No 650/2012 shall be as set out in Annex 4 as Form IV. 5. The form to be used for the European Certificate of Succession referred to in Article 67(1) of Regulation (EU) No 650/2012 shall be as set out in Annex 5 as Form V.

Article 2 This Regulation shall enter into force on 17 August 2015. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. Done at Brussels, 9 December 2014. For the Commission The President Jean-Claude JUNCKER

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Glossary Acceptance of Authentic Instruments (Article 59) The private international law concept of recognition, is regarded as being applicable only to court judgments. Authentic instruments are not capable of recognition, and the alternative concept of ‘Acceptance’ is used in its place. Acceptance is to have the result of conferring on an Authentic Instrument the same evidentiary effects as it has in the Member State of Origin.

Administrator (Article 29) In some states, the property of the deceased vests directly in the heirs, whilst in others, property does not vest until it is claimed by an heir. In other states, property vests directly in Administrators, Executors or Personal Representatives or does so on their appointment. Such Administrators, Executors or Personal Representatives take possession of assets, settle liabilities, tax and legacies and then remit the residuary estate to the beneficiaries or heirs.

Administration and Distribution of the Estate (Article 3(1)(a)) In some states, the administration and distribution of the estate is regarded as a different legal classification separate from other issues of succession. In the Regulation, the term ‘succession’ includes all aspects including its handover, administration and liquidation.

Admissibility and Substantive Validity of a Disposition of Property upon Death The question as to the admissibility and substantive validity of a Disposition of Property upon Death is treated differently for Agreements as to Succession than it is for other Dispositions. Article 26 sets out those matters regarded as being of substantive validity, such as capacity, fraud duress and mistake. Article 25 sets out which is to be the law governing the admissibility and substantive validity of an agreement as to succession and its binding effects and conditions for its dissolution.

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Article 24 sets out which is to be the law governing the admissibility and substantive validity of Dispositions of Property upon Death other than Agreements as to Succession and their modification or revocation.

Agreement as to Succession (Article 3(1)(b)) Not all states are familiar with the concept of an inheritance contract, made between a testator during his lifetime and his heirs, agreeing as to the division of his estate that is to occur in the future, on his death. An Agreement as to Succession is more broadly defined and includes any agreement in writing which with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement and will therefore include many written agreements, not currently considered to be inheritance contracts.

Apostille (Article 74) Legalisation under the 1961 Hague Legalisation Convention. No legalisation or Apostille is to be required for documents issued in a Member State in the context of the Regulation.

Applicable Law (Chapter III) Once the private international law issue as to jurisdiction is decided, it is then a question for the forum to ascertain which is to be the law applicable to the succession. This will usually be the law of the State in which the deceased had his habitual residence at the time of death.

Applicant See ‘Claimant’.

Authentic Instrument (Chapter V) In most Member States, other than Cyprus, Denmark, Finland, Ireland, Sweden and the United Kingdom, many transactions are required to be authenticated by a notary who prepares a notarial deed often in the form of an authentic instrument. In some Member States succession is effected by an authentic instrument by way of an inheritance certificate setting out the assets and liabilities of the estate and the heirs who take possession and the legatees entitled. In other states, a court may issue a certificate of inheritance or grant of probate, confirmation or letters of administration. 366

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Batiffol Report The explanatory report of Henri Batiffol to the 1961 Hague Wills Convention.

Beneficiary (Recital 47) Beneficiary is used in many states as the term for the people entitled to the bulk of the estate after payment of debts, tax and legacies. In others, property may vest in the heirs who then arrange to pay the debts and legacies. It will be a matter for the law applicable to the succession to determine in each case the precise definition of the beneficiaries. The term will under most laws cover heirs and legatees and persons entitled to a reserved share.

Bona Vacantia See ‘Estate without a Claimant’.

Brussels Ibis Regulation Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Brussels IIbis Regulation Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

Capacity Questions as to capacity can be complex and confusing. Personal capacity is not a separate legal classification, but a particular requirement for many separate legal acts. The precise test for capacity can differ between each such act. The personal capacity to inherit is governed by the applicable law. (Article 23(2)(c)). The personal capacity to make a Disposition of Property upon Death is regarded as a matter of substantive validity. (Article 26(1)(a)). See Admissibility and Substantive Validity of a Disposition of Prop-

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erty upon Death and Admissibility and Substantive Validity of an Agreement as to Succession.

Certificate See ‘European Certificate of Succession’.

Choice of Court Agreement (Article 5) In certain circumstances the parties concerned in a succession may agree that the courts of the Member State chosen by the deceased to govern the applicable law can be given jurisdiction to rule on the succession. There is no provision enabling a testator to choose the relevant jurisdiction.

Choice of Law (Article 22) In some states ‘choice of law’ in the context of private international law or conflicts of laws, has the same meaning as the applicable law. In the Regulation, the term ‘choice of law’ refers to a ‘professio juris’ or the ability for a testator to choose the law of his nationality as the applicable law for his succession rather than the law of his habitual residence, that will otherwise apply.

Claimant The description of a person who lodges a claim in a court varies considerably from state to state. Some states use the term ‘claimant’ and others ‘plaintiff’. The party to the dispute on whom the claim is served, is usually described as a ‘defendant’. Sometimes, if either party appeals to a higher court they are then described as an ‘applicant.

Classification The decision as to whether a particular legal topic belongs to one legal category or another is known in private international law as classification or qualification. In some states the legal category ‘succession’ will include matters that are not included in other jurisdictions.

Clawback See ‘Restoration of Lifetime Gifts’.

Commorientes See ‘Simultaneous Death’. 368

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Conflicts of Law See ‘Private International Law’.

Construction The term ‘construction’ means the interpretation of the meaning of a document.

Court (Article 3(2)) The definition of ‘court’ in the Regulation is wider than usual and includes legal professionals such as notaries and court officials with competence in matters of succession when they are exercising a judicial function. See ‘Information from the Commission’.

Date of Application (Article 84) The Regulation applies from 17 August 2015, except for Articles 77 and 78 which apply from 16 January 2014 and Articles 79, 80 and 81 which apply from 5 July 2012 (although they did not enter into force until 17 August 2012).

Date of Entry into force (Article 84) The Regulation entered into force on 17 August 2012 being the twentieth day following its publication in the OJ.

Decision (Article 3(1)(g)) Decision is broadly defined and includes any decision in a matter of succession given by a Court of a Member State.

Defendant See ‘Claimant’.

Deed All states evidence particular transactions by requiring certain matters of form. In many common law states, such acts or deeds must include certain words and formalities of witnessing. In other states a notarial act or deed or authentic instrument may be required.

Disposition of Property upon Death (Article 3(1)(d)) Disposition of Property upon Death is formally defined and is a term Richard Frimston

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that is frequently used in the Regulation. It includes a Will, a joint Will or an Agreement as to Succession to the extent that such documents dispose of future rights rather than present rights.

Domicile The Brussels Ibis Regulation uses ‘domicile’ as a connecting factor, although with some specific definitions. Different states use the term ‘domicile’ in their internal law with very different meanings. In many common law states, domicile is usually the state of origin or closest connection, whilst in others it may have a meaning closer to that of the current home. The Regulation generally uses the connecting factor of ‘habitual residence’, but refers to ‘domicile’ in relation to issues of enforcement, in the similar sense to that in the Brussels Ibis Regulation.

Enforceability of Authentic Instruments (Article 60) The Regulation seeks to ensure the Acceptance and Enforceability of Authentic Instruments. Subject to issues of public policy, an authentic instrument which is enforceable in the Member State of Origin is to be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58.

Enforceability of Court Settlements (Article 61) The Regulation similarly seeks to ensure the Recognition and Enforceability of Court Settlements. Subject to issues of public policy, a court settlement which is enforceable in the Member State of Origin is to be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58.

Enforceability of Decisions (Article 43) The Regulation similarly seeks to ensure the Recognition and Enforceability of Decisions. Subject to issues of public policy and natural justice, a decision which is enforceable in the Member State in which it was given shall be enforceable in another Member State once declared so on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58.

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The Estate Many of the language versions of the Regulation do not distinguish between the ‘Succession’ and the assets, rights and obligations in it. The English language version does distinguish between ‘Succession’ and the ‘Estate’. In many states and for the purposes of the 1989 Hague Succession Convention, the term ‘Estate’ means all the property owned by the deceased or in which he had a proprietary interest at the time of his death. Whilst the Regulation does not define the term ‘estate’, the definition of ‘succession’ indicates that ‘estate’ is to be given a very broad meaning. Provided that an asset, right or obligation is not excluded from the scope of the Regulation and provided that it relates to succession, then it is likely to be within the estate and the succession. See also Succession.

Estate without a Claimant (Article 33) In circumstances in which no persons are entitled to the succession, different states treat the estate in different ways. In some countries, the State is entitled as an heir whilst in others, the succession rights are forfeited by the State. The Regulation will not remove the right of a State to appropriate assets in its territory, subject to the rights of creditors.

European Certificate of Succession (“ECS”) (Articles 62 to 73) In order to help speed up and make for smoother dealings with a cross border succession, the Regulation creates the concept of the uniform certificate issued in one Member State for use in another. Chapter VI of the Regulation sets out the rules as to the creation, purpose, application for, issuing of, contents, effects, modification, redress procedure and suspension of the European Certificate of Succession.

European Judicial Network in Civil and Commercial Matters (“EJN”) This website is managed by the European Commission and is regularly updated in conjunction with the Member States of the European Union. It contains a large quantity of information about the Member States, Community law, European law and various aspects of civil and commercial law. http://ec.europa.eu/civiljustice/index_en.htm Richard Frimston

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Exequator An Exequatur is the declaration of enforceability issued by a court authorising the enforcement in that country of a decision, authentic instrument or court settlement given abroad.

Executor See ‘Administrator’.

Explanatory Memorandum Explanatory Memorandum of 29 October 2009 issued by the EU Commission in COM (2009) 154.1

Federal States See States with More than One Legal System

Formal Validity of a Declaration concerning Acceptance or Waiver (Article 28) A declaration concerning the acceptance or waiver of a succession will be formally valid if it meets the requirements of either the law applicable to the succession, or the law of the State in which the person making the declaration has his habitual residence.

Formal Validity of a Disposition of Property upon Death (Article 27) Dispositions of Property upon Death made orally are outside the scope of the Regulation. The rules as to formal validity set out in the 1961 Hague Wills Convention are extended by the Regulation to include agreements as to succession. There are no specific provisions as to revocation save for revocation by a subsequent Disposition of Property upon Death.

Forum Necessitatis (Article 11) The doctrine of forum non conveniens that is available in some common law states, is not permitted under the Regulation. However, Article 11 permits the courts of a Member State, on an exceptional basis and if it has a sufficient connection, to take jurisdic1

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN: EN:PDF.

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tion if proceedings cannot reasonably be brought in a third State with which the case is closely connected.

Gifts See ‘Restoration of Lifetime Gifts’.

Habitual Residence Habitual residence is not defined, but it is considered that its meaning is more restrictive than in other Regulations. It must be more difficult to lose, change or obtain. The habitual residence determined should reveal a close and stable connection with the State concerned taking into account the specific aims of the Regulation.

1961 Hague Wills Convention Hague Convention of 5 October 1961 on the Conflicts of Laws to the Form of Testamentary Dispositions2 See also ‘International Conventions’.

1973 Hague Administration Convention Hague Convention of 2 October 1973 Concerning the International Administration of the Estates of Deceased Persons3

1985 Hague Trusts Convention Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition4

1989 Hague Succession Convention Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons5

Heir See ‘Beneficiary’.

2 3 4 5

http://www.hcch.net/index_en.php?act=conventions.text&cid=40. http://www.hcch.net/index_en.php?act=conventions.text&cid=83. http://www.hcch.net/index_en.php?act=conventions.text&cid=62. http://www.hcch.net/index_en.php?act=conventions.text&cid=62.

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Incidental Question Private international law matters may sometimes depend upon the decision of an incidental or subsidiary issue. The Regulation governs the private international law for many such incidental questions, but not all. For example, the question as to whether a person was validly married to the deceased, and thus a possible heir, will be outside the scope of the Regulation and will be a question for the forum to decide in accordance with its own private international law rules.

Information from the Commission (Article 78) The EU Commission must keep a list of other authorities and legal professionals referred to in the definition of “Court” in Article 3(2) and publish the list and amendments in the OJ and through the EJN. It must also include contact details and procedures in relation to European Certificates of Succession and redress procedures. See also ‘Court’.

Information from Member States (Article 77) The Member States are under an obligation to make and keep updated information available to the public in the EJN, including summaries of national legislation and procedures and fact sheets regarding the registration of immovable property in their territory.

Insolvency Regulation Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. Article 76 of the Succession Regulation specifically excludes it from affecting the Insolvency Regulation.

International Conventions (Article 75) The effect of the Regulation on other international conventions to which one or more Member States are parties is complex. Member States that are Contracting Parties to the 1961 Hague Wills Convention continue to apply the provisions of that Convention instead of Article 27 of the Regulation with regard to the formal validity of Wills. The Regulation also does not exclude the application of the 1934 Nordic Convention in some circumstances. However, the Regulation will take precedence over conventions that have been concluded only between Member States. 374

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It should be remembered, however, that the scope of the Regulation can be narrower than that of the Conventions, which may also continue to apply in circumstances outside the scope of the Regulation.

Joint Will (Article 3(1)(c)) The definition under the Regulation may be wider than usual in some Member States. It will include any Will drawn up in one instrument by two or more persons.

Jurisdiction (Article 4) Jurisdiction is given primarily to the courts of the Member State in which the deceased had his habitual residence at the time of death. See also ‘Subsidiary Jurisdiction’.

Law Unit See ‘States with more than one Territorial Legal System’.

Legalisation (Article 74) No legalisation or Apostille is to be required for documents issued in a Member State in the context of the Regulation.

Legatee See ‘Beneficiary’.

Matrimonial Property Regimes Property Regimes are generally outside the scope of the Regulation. Article 2(a) of the proposed Regulation COM (2011) 126 defines such regimes as a set of rules concerning the property relationships of spouses, between the spouses and in respect of third parties. COM (2011) 127 applies to the property consequences of registered partnerships.

Maintenance Obligations Regulation Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

Max Planck Report Report of the Max Planck Institute, nr. 287. Richard Frimston

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Member State There is uncertainty as to whether all of the Member States of the European Union are included within the definition of Member State or whether Denmark, Ireland and the United Kingdom, which are not bound by the Regulation, are excluded. See also ‘Renvoi’.

Member State of Origin (Article 3(1)(e)) The Member State in which a decision has been made, court settlement approved or concluded or an authentic instrument or European Certificate of Succession issued.

Member State of Enforcement (Article 3(1)(f)) The Member State in which the enforcement of the decision, court settlement or the authentic instrument is sought.

Multi-legal Systems See ‘States with More than One Inter-Personal Legal System’.

Mutual Will See ‘Agreement as to Succession’.

Non-Recognition (Article 40) There are limited grounds permitting the non-recognition of a Decision on the grounds that it is contrary to Public Policy (see below), in breach of the rules of natural justice or irreconcilable with an existing or earlier Decision.

Nordic 1934 Convention Convention of 19 November 1934 (as amended) between Denmark, Finland, Iceland, Norway and Sweden concerning Inheritance, Testamentary Dispositions and the Administration of Estates of Deceased Persons Obtaining Probate. See also International Conventions.

Numerus Clausus The property law of Member States sets out limited numbers of such property rights in rem. Some Member States use concepts such as usufructs and fideicommisum whilst others may use trust. See Rights in rem. 376

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Official Journal of the European Union (“OJ”) The OJ is the periodical published each working day in all official languages of the European Union and consists of two related series (L for legislation and C for information and notices). http://publications.europa.eu/official/index_en.htm

Opening the Succession The precise cause, moment and place that a succession starts or is opened, may vary from state to state. It may happen automatically upon a death or may require the act of an heir or administrator. These matters will be decided by the applicable law under Article 23(2)(a).

Ordre Public

See ‘Public Policy’.

Other Authorities and Legal Professionals See ‘Information from the Commission’.

Plaintiff See ‘Claimant’.

Personal Representative See ‘Administrator’.

Private International Law Private international law is that part of law which comes into play when the issue before the court is so closely connected with a foreign system of law as to necessitate recourse to that system.6 The major topics in private international law are those of jurisdiction (which state will decide an issue), applicable law (which law will that state apply) and recognition and enforcement (whether the decisions of that state will be accepted and enforced in other states). Some states refer to Private International Law as Conflicts of Law and then often refer to Applicable Law as Choice of Law.

6

Private International Law – Cheshire, North and Fawcett 14th Edition.

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Public Policy (ordre public) (Article 35) The application of a provision of the law of any State specified by the Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum. The circumstances in which public policy grounds may be relevant, will be limited.

Recognition (Article 39) Recognition is not defined in any EU Regulation, but is regarded as having the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given.7

Renvoi (Article 34) The concept of renvoi (or reference back) is the private international law issue as to the meaning of ‘law’ under the question of the applicable law; whether reference to the law of another state is to the internal law of that state or to the whole of the law of that state including its own private international law rules that may direct the applicable law as being the law of yet another state. Whilst not specifically stated, it is implicit in the Regulation that generally, the concept of renvoi no longer has any application. However, renvoi from a third State to the law of a Member State, or that of another third State which would apply its own law is permitted. As referred to under ‘Member State’, it is not clear whether Denmark, Ireland and the United Kingdom are Member States or third States. However, in any event, no renvoi applies if a law is chosen under Article 22.

Restoration of Lifetime Gifts (”Clawback”) Whilst gifts are outside the scope of the Regulation under Article 1(2) (g), obligations to restore are within the scope of the Applicable Law under Article 23(2). The extent to which a right to property created by gift outside the scope of the Regulation is affected by an obligation to restore under the Regulation, will often be a difficult question.

7

Jenard Report p. 43.

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Rights in rem A right in rem is an immediate right in property as distinguished from a right which is a monetary or other claim against another individual. The property law of Member States sets out limited numbers of such property rights or rights in rem. Some Member States use concepts such as usufructs and fideicommisum whilst others may use trusts. The Regulation does not override the property law of Member States and a Member State will not be required to recognise a right in rem relating to property in that Member State if the right in rem in question is not known in its property law, but will have to adapt the unknown right in rem to the closest equivalent national property right. (Art. 22a and Recital (…))

Rome I Regulation Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations.

Rome II Regulation Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations.

Rome III Regulation Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.

Schismatic See ‘Succession as a Whole’.

Scope The term ‘scope’ is used in a number of ways in the Regulation. For the Regulation itself, its scope is defined as a broad one subject to the specific exclusions contained in Article 1. Any matter outside the scope of the Regulation will not be subject to any part or provision of the Regulation whatsoever. For the Applicable Law, its scope is defined as the law governing the succession as a whole and including the matters listed in Article 24, but not exclusively so. There are however matters in the Regulation not

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governed by the applicable law, such as jurisdiction and some Agreements as to Succession. For the Substantive Validity of a Disposition of Property upon Death, Article 26 defines the scope as including issues such as capacity, interpretation, fraud, duress and mistake.

Simultaneous Death (Article 32) Many states have rules that dealing with the death of two or more people in circumstances in which it is uncertain in what order their deaths occurred. If under the Regulation different succession laws apply and they provide differently for this or have no such rules, then none of the deceased are to have any succession rights to the others.

Special Assets (Article 30) Some states protect certain immovable property, enterprises or other special categories of assets by special rules which, for economic, family or social considerations, set restrictions on the succession of those assets. The Regulation permits those special rules to continue to apply irrespective of the law applicable to the succession, but the exception is to be given a strict interpretation.

States with more than one Inter-Personal Legal System (Article 37) Some states such as India, the Lebanon and Morocco have different systems of applicable succession law for different categories of persons, depending on their religion. It is to be the rules of that state that determine which is the applicable law by virtue of a reference to the law of that state. In the absence of such rules, the system of law with which the deceased had the closest connection are to apply.

States with more than one Territorial Legal System (Article 36) Some states such as Spain, the United Kingdom, Canada, Australia and the United States of America comprise several territorial units (a law unit) each of which has its own different rules of law in respect of succession. It is to be the private international law rules of such a state that shall 380

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determine the relevant law unit whose laws shall apply, but in the absence of such rules Article 36 sets out the factors in order to decide the applicable law. Under Article 38, a Member State which comprises several law units is not required to apply the Regulation to conflicts arising solely between such law units.

Subsidiary Jurisdiction (Article 10) Primary jurisdiction is given to the Member State where the deceased had his habitual residence at the time of death. If however, no Member State has primary jurisdiction then, the courts of a Member State in which assets are located will have subsidiary jurisdiction to rule on the succession as a whole if the deceased had the nationality of that Member State at the time of death, or if not, if the deceased had his habitual residence in that Member State within the previous five years. Where no court in a Member State has jurisdiction then the courts of the Member State in which succession assets are located will always have a longstop subsidiary jurisdiction to rule solely on those assets.

Substantive Validity of an Agreement as to Succession See ‘Admissibility and Substantive Validity of a Disposition of Property upon Death’.

Substantive Validity of a Disposition of Property upon Death See ‘Admissibility and Substantive Validity of a Disposition of Property upon Death’.

Succession (Article 3(1)(a)) The term ‘succession’ is to be interpreted autonomously and includes its handover, administration and liquidation and all forms of transfer of assets, rights and obligations by reason of death, whether under a disposition of property upon death, or under an intestacy.

Succession as a Whole Some states (unitarian) use one law to govern succession, whilst others (schismatic) use different law for movables and immovable. The applicable law under the Regulation following the unitarian principal will generally govern all property forming part of the succession, wherever the assets are located and whether within a Member Richard Frimston

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State or a third State. However, renvoi will be permitted in some circumstances which will then mean that different property may be subject to different applicable law. This introduction of schismatic succession will be new and unusual for many Member States. See ‘Renvoi’.

Testamentary Disposition The Regulation does not use the term ‘testamentary disposition’ that is used in the 1961 Hague Wills Convention, but the broader term, Disposition of Property upon Death, used in the 1989 Hague Succession Convention, which includes Agreements as to Succession.

Transitional Provisions (Article 83) The Regulation applies to the succession of persons who die on or after the 17 August 2015. A choice of law made prior to the 17 August 2015 will be valid if validly made in accordance with the Regulation or with the rules of private international law in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed. There are also transitional provisions as to the formal and substantive validity of Dispositions of Property upon Death made before the 17 August 2015. A Disposition of Property upon Death made before 17 August 2015 may also be deemed to have included a choice of national law, if made in accordance with it.

Trusts Although Article 1(2)(i) excludes the creation, administration and dissolution of trusts from the scope of the Regulation, this exclusion relates solely to the functioning of the trust. Where a trust is created in a Will or under statute on intestacy, the law applicable to the succession under the Regulation will apply with respect to the devolution of the assets and the determination of the beneficiaries, whether or not trusts are imposed. Trusts come in many different forms in the common law. Property in an estate is generally held on trust by the administrators for the benefit of the beneficiaries. On intestacy, a spouse is often entitled to the

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right to income for life, and the administrators must hold the estate property on such trusts. Dispositions of Property upon Death can also create specific trusts. Under the 1975 Hague Trusts Convention, the applicable law can be chosen. See ‘Rights in rem’.

Unity See ‘Succession as a Whole’.

Universal Application (Article 20) Subject to questions of public policy, any law specified by the Regulation is to be applied whether or not it is the law of a Member State.

Usufruct In the common law, the concept of the ‘use’ developed into that of the trust. The law of most Member States incorporates the property right in rem of the usufruct, which divides property between the bare owners and the usufructuary, being the person who has the right to use and enjoy the fruit of the property for life or for a limited period.

Waters Report The explanatory report of Donovan Waters to the 1989 Hague Succession Convention.8

8

http://www.hcch.net/index_en.php?act=publications.details&pid=2959&dtid=3.

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Index Acceptance Acceptance of authentic Instruments Adaptation of rights in rem Administration and Distribution of the Estate Administrator Admissibility and Substantive Validity of an Agreement as to Succession Admissibility and Substantive Validity of a Disposition of Property upon Death Agreement as to Succession Anti-Suit Injunction Applicable Law Arbitration Award Authentic Instruments Introduction Beneficiaries

see Option of Acceptance or Waiver 59 4 et seq 31 1–3 Introduction 36; 23 4, 18 et seq, 29 et seq; 29 1 et seq, 8 et seq see Personal Representative 25 1, 5, 7; 26 1 et seq 24 4 et seq; 26 1 et seq

Introduction 32 et seq; 24 1 et seq; 25 1 et seq; 27 2 et seq; 34 10 40 15 Introduction 13 et seq; 20–38; 75; 83 40 47 42 et seq; 59 1 et seq

Brussels IIbis Regulation Burden of Proof

23 7; 29 4; 65 17, 31; 66 7 et seq; 67 4; 68 13, 26 et seq 21 9 et seq 40 6

Capacity to Inherit Capacity to Make a Disposition Centre of Interest Change in the Applicable Law Change in the Connecting Factor Characterisation Charter of Fundamental Rights Choice of Court Agreement Choice of Law

23 12 26 3, 11 et seq 21 3, 10 26 12 22 7, 26 10 et seq 26 1 et seq; 27 9 et seq; 30 5 35 5 5 1 et seq; 6 2,9; 7 6; 9 6; 22 3 5 2 et seq; 6 5; 7 3; 8 1

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Index

Clawback Closest Connection Commorientes Consent Construction Contradictory Proceedings Creditors Decision Declining of Jurisdiction Default of Appearance Discrimination Disinheritance Disposition of Property upon Death Disqualification by Conduct Distinction between Movable and Immovable Property Distribution of Assets Domicile Dual Nationality

40 10; see also Restoration of Lifetime Gifts 25 7; 36 11; 37 2 23 5; 32 22 12; 26 7 et seq 26 6 50 5 23 29, 34; 29 11; 63 4; 65 1; 70 1; 72 3 46 6 6, 9 40 22 35 3 et seq 23 15 et seq Introduction 32, 50; 24 1 et seq; 27 1 et seq 23 17 21 2; 34 4 23 44 et seq Introduction 16, 23; 27 6 10 6; 21 11; 22 7, 8; 24 8; 27 5

Enforceability of Authentic Instruments Enforceability of Court Settlements Enterprise Entry into force Estate without a Claimant European Certificate of Succession Exception Clause Execution, Actual Executor Exequatur

60 1 et seq

Family Home Fees to the Court Fees to the Lawyers

23 37 58 3 58 3

386

61 1 et seq 30 2; 34 12 Introduction 50 33 1 et seq Introduction 44 et seq; 4 6; Chapter VI Introduction 25; 21 12 et seq; 34 8 43 6 see Personal Representative Introduction 41; 74 1

Index

Formal Validity of a Declaration Concerning Acceptance or Waiver Formal Validity of a Disposition of Property upon Death Formal Validity of a Professio Juris Forum Necessitatis Forum Non Conveniens Fraud Fundamental Rights General Jurisdiction German Notary Institute Gifts Guardianship Habitual Residence 1961 Hague Wills Convention 1965 Hague Service Convention 1973 Hague Administration Convention 1989 Hague Succession Convention

Immovable Property Incapacity to Dispose or to Receive Incidental Question Inheritance Interested Party Interested Third Party Interim Decisions Internal Conflicts of Laws Interpersonal Conflicts of Laws Interpretation Interterritorial Conflicts of Laws Irreconcilable Decisions

23 28; 28 1 et seq 21 4; 24 9; 27 1 et seq; 34 11 21 4; 22 10 et seq; 24 9 11 1 et seq 62 26 7; 40 19 35 5 4 1 et seq; 7 4 et seq; 10 2 et seq; 12 1; 15 1 Introduction 3 see Restoration of Lifetime Gifts 26 3 Introduction 24; 4 4 et seq; 9 11; 21 1, 3, 5 et seq; 27 4; 83 1 et seq Introduction 35; 22 10; 27 1 et seq; 65 20; 75 2 16 2 Introduction 46 Introduction 19; 22 4; 23 3, 15, 36, 39; 25 1, 8; 32 1, 5; 34 1; 36 2 21 4; 27 7; 30 2; 31 3; 34 3, 12; 69 18; 83 5 26 4 23 10; 39 14 see Estate without a Claimant 43 5 50 3 40 45 38 1 et seq 37 1 et seq see Construction 36 1 et seq 40 43 51

387

Index

Irreversible Measures

54 12

Joint Will Jurisdiction Jurisdiction based on Appearance

24 2 Introduction 9 et seq 7 8; 9 1 et seq; 15 2

Legal Entities Legislative Procedure of Co-decision Lex rei sitae

23 14 Introduction 4 Introduction 22; 29 4; 30 1, 4; 31 3; 33 2; 69 1, 16, 19; 83 5 13 5; 63 7 et seq; 65 3, 31; 68 26, 35, 38; 70 1 12 1 et seq 7 2; 10 6; 14 2; 17 1 et seq 4 2; 13 3

Liability for Debts Limitation of Proceedings Lis pendens Local Jurisdiction Mareva Injunction Matrimonial Property Mutual Will Non-Member State Non-Contentious Proceedings

Opening of the Succession Option of Acceptance or Waiver

Ordinary Appeal Ordinary Service Ordre Public Overriding Mandatory Provisions (lois de police) Parties Concerned Personal Representative Proceedings of the Court’s own Motion

388

40 16 Introduction 5, 6; 23 45; 65 25; 68 15 et seq 24 2; 27 11 Introduction 49; 23 23; 29 4; 34 1; 35 7 4 3; 5 6 et seq; 6 3; 8 1; 14 1, 7 et seq; 16 4; 17 6; 19 7 23 4 et seq 13 1 et seq; 14 3; 23 25 et seq; 28 1 et seq; 29 12; 65 31; 68 26, 27; 77 1 et seq 42 5 40 31 40 7 30 4 et seq; 34 12 4 6 et seq Introduction 18, 37 et seq; 23 21 et seq, 30; 29 1 et seq; 63 4 et seq see Non-Contentious Proceedings

Index

Professio Juris

Proposal of the European Commission Prorogation Agreements Provisional and Protective Matters Public Policy (Ordre Public) Recognition Registered Partnership Related Actions Renvoi Representation of an Incapacited Person Res Judicata Reserved Portion Reserved Shares Restoration of Lifetime Gifts Revocation of a Disposition of Property upon Death Revocation of a Professio Juris Rights in rem Seising of a Court Sequestration Service of Documents Settlements, Private Social Security Special Assets Special Rules Splitting of Succession State with more than one Legal System

Stay of Proceedings

Introduction 17, 28 et seq,50; 22 1–13; 23 2; 24 7 et seq; 25 6 et seq; 28 1; 34 9 et seq; 83 2 et seq Introduction 3, 4 45 9 19 1 et seq 35 1 et seq, 40 7 Introduction 39 et seq; 74 1 23 11; 65 16 et seq; 68 10 et seq 18 1 et seq Introduction 26; 4 5; 21 4; 34 1 et seq 26 5; 65 11, 15, 33; 68 11 39 8 40 10 21 2; 22 4; 23 16, 38 et seq; 35 6; 65 17, 30; 66 9; 68 23; 77 1 et seq 23 39 et seq 24 10 et seq; 26 16; 27 8 22 13 31 1 et seq 14 1 et seq 54 9 16 1 et seq 40, 46 21 8, 11 Introduction 22; 30 1 et seq 30 1 et seq Introduction 15; 34 4 see Internal Conflicts of Laws, Interpersonal Conflicts of Laws, Interritorial Conflicts of Laws 17 9; 18 5

389

Index

Subsidiary Jurisdiction Substantive Validity Substituted Service Succession as a Whole Surviving Spouse Territorial Unit

10 1 et seq see Admissibility and Substantive Validity 40 31 Introduction 8, 15, 21, 36; 21 1 et seq; 22 6; 23 2 et seq; 34 4 23 7, 9; 65 16 et seq; 68 9 et seq; 69 6

Third State Time Limits Transfer of Assets Transfer of Debts Treaty of Amsterdam

see Internal Conflicts of Laws, Interritorial Conflicts of Laws 39 3; 12 1; 75 2 50 9 Introduction 37 et seq; 23 11; 29 12 23 33 et seq; 29 12; 33 6 Introduction 2

Universal Application Universal Jurisdiction Usufruct

20 1, 2 see General Jurisdiction Introduction 15; 31 3

Waiver Waters Report Will Witness

see Option of Acceptance or Waiver 22 11; 30 3 See Disposition of Property upon Death 27 10

390