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

Abstract

The holiday apartment on the Costa del Sol, the London bank account, the shares in a Polish subsidiary – which rules should apply to these assets when their owner passes away and they are left to the next generation? The range of different inheritance laws makes cross-border inheritances significantly more complicated for European citizens. The freedom of the deceased to distribute property through a will or testament differs from country to country. The rights which can be claimed by a surviving spouse are different, as are the inheritance of children and other heirs. There is no uniformity in the form last will and testament may take, nor is it possible for heirs to demonstrate their rights through a certificate of inheritance. The opening of borders across the Union, the increase in private wealth since the Second World War and the aging of the European population has made combating the problems of cross-border inheritances a pressing issue.

For this reason, the harmonisation of international succession law has been on the European legislative agenda since the Vienna Action Plan of 1998. Already the Green Paper on succession and wills released in 2005 recognised a clear need to address the matter of cross-border inheritances within the internal market. After significant preliminary work and consultations, the Commission released an ambitious proposal for a European Succession Regulation in October 2009. This proposal addresses more than just the traditional issues of international succession law such as the questions relating to choice of law, jurisdiction of the courts and the recognition and enforcement of foreign judgments in succession matters. The Commission also proposes provisions for the administration of estates and the introduction of a European Certificate of Inheritance which would be recognised in all Member States.

A working group within the Hamburg Max Planck Institute, under the leadership of Jürgen Basedow and Anatol Dutta discussed between October 2009 and March 2010 the Commission's proposals in detail. The resulting comments from the Max Planck Institute submitted many suggested changes aimed at improving the practicability of the proposed provisions and their acceptance in all Member States. The Institute welcomed the Commission's initiative, and expressed a desire for a broadening of the scope of the proposal and a strengthening of private autonomy.

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Keywords: Conflict of laws, jurisdiction, recognition and enforcement of judgments, European Union, inheritance, succession