JURIST Guest Columnist Angelique Devaux, French Qualified Attorney, discusses the newest occurrences of succession in Europe …
It is just the beginning of 2015, and it is accompanied by a number of new reforms, new laws and new regulations that shall be implemented along with the New Year. 2015 shall be an important milestone into the ongoing process of European harmonization, as from August 17, 2015, Succession Conflicts of Law finally become harmonized with the entry EU Regulation No 650/2012.
The new European tool answers the outcome of a long process of reflection and negotiation that started with the European Council of Tampere in 1999 in order to progressively establish an area of freedom, security and justice in Europe.
And for good reason: the free movement of people within the European Union has created many cross-border situations such as owning estates in different countries. This European and/or international ownership entails the application of multiple inheritance laws and creates conflict of law rules for succession that are currently deeply heterogeneous between the European member states. Some member states apply the law of the nationality to govern a succession, in others the law where the person is a resident; some retain a principle of scission between movables and immovables, while others address the issue as a unity.
The European succession regulation (hereafter “SR”) puts an end to this legislative cacophony for the approximately 450,000 cross-border successions [PDF] that are settled in Europe each year.
Except for Denmark, United Kingdom and Ireland, the new regulation provides a direct application in all SR member states and enjoys a universal character—the selected law can be the law of a member state, a third state or a non-member state. This means, for example, that an American citizen who owns a property in Europe could use these provisions. Therefore, the SR deserved to be known by any person holding estates in Europe, and to be comprehended by any international attorneys whose clients know cross-border elements in consistency with Europe.
The text is primarily geared to avoid conflicts of laws of succession. It provides the principle of the unity of the succession as “a whole”—a single law is now applicable to all the deceased’s estates irrespective of their nature and their location. The goal is to simplify and to unify the law of the succession as a natural consequence of globalization, rather than to solve complex connecting issues between domestic and international laws. Therefore, SR provisions become the new base of international estate planning in Europe.
However, the scope of application is reduced to succession law only. Matrimonial property law, trust law and tax law are expressly excluded from the regulation. Accordingly, international lawyers shall continue to draw attention to these surrounding legal issues in order to provide global and adequate estate planning strategies.
In the absence of any choice of law, the law of the state in which the deceased had his habitual residence at the time of death governs his succession as a whole. For instance, a Spaniard has his habitual residence in Italy; Italian law shall govern the law applicable to his succession, and shall be applied to all of his movable and immovable estates whether their locations are in Spain, Italy or Belgium.
The major feature of the regulation is the introduction of a professio juris mechanism—jcurrently prohibited in several European jurisdictions, such as France, Belgium or Luxembourg—has the expression of “party autonomy.” In other words, this means that the possibility for an individual to express the choice of law applicable to his or her future succession. The use of choice of law is an excellent tool for international estate planning by demonstrating a secured devolution of properties. Moreover, the person becomes Master of his estates’ fate in an international context. However, in order to avoid any forum shopping temptation, the choice of law is confined to the law of the nationality the deceased possesses at the time of making the choice or at the time of death.
Some practical aspects strengthen the implementation of this new mode of European harmonization. In order to ensure efficiency and rapidity to the settlement of a succession, SR imposes the principle of mutual recognition and enforcement of decisions in the area of succession between the member states. Thus, no special procedure or review as the substance is required for a decision to be recognized or enforced in another member state. The principal innovation of the SR is the creation of the European Certificate of Succession (ECS), a new cross-border instrument which ensures to prove the capacity and powers of heirs, surviving spouse, executor or administrator of the estates throughout the member states. For this purpose, a standard form of ECS has been recently published in the Official Journal of the European Union and is now available in 23 languages. In order to harmonize the different legal systems in the best possible ways, the regulation also calls member states to adapt unknown right in rem to the closest equivalent right in rem under the law of that other member state. For example, if French law governs the succession law, a legal equivalent concept of Anglo-American trusts shall have to be considered if such device is concerned, although French law does not know these trusts.
One can easily consider that the SR solves the legal issues in matters of succession in Europe, based on a thorough harmonization of conflict of laws. But in fact, SR suffers from exceptions, which underline a renewal of conflict of laws and legal issues. For instance, the SR accepts the mechanism of renvoi when the law of a third state, including its private international rules, governs by default the succession and sends back to the law of a SR member state or another third state. This situation may happen when American law is the default governing law that sends back to the law of the situs applied to immovables according to the American succession conflict of laws. Therefore, depending on the situation, the unity of the applicable law is being weakened when the deceased has his habitual residence in a third state.
Another controversial situation is the possibility to disregard a foreign law when its application in exceptional circumstances would be contrary to the public policy of a SR member state. The European public policy does not elicit much debate since all member states subscribe to the Charter of Fundamental Rights of the European Union and are parties to the European Convention of Human Rights; however there is still a pending discussion among scholars about the appreciation of domestic public policy since the domestic laws are not unified. For instance, the concept of forced heirship—unknown in common law jurisdictions—is ruled as a public policy in France, owns a constitutional value in Germany, but does not enjoy such strong protection in Spain. Therefore, the interpretation of these potential exceptions will be the Court of Justice of the European Union’s heyday.
Most importantly, the practice of succession law becomes deeply international with the implementation of such regulation. Lawyers become indirectly international lawyers, and the stage directors of the unification of legal systems despite themselves, under the cloak of an implementation of freedom of movement, legal security and justice. The issue is how best to play in the international lawyers’ game at a time when there are 28 jurisdictions in Europe, and thus so many domestic laws and languages to know. This would entail in particular a stronger legal training in comparative and international law, and an alliance of skills between legal international professionals.
To what extent would it be enough to ensure quality and legal security for individuals? There is a subsidiary issue of whether/how to balance between a—voluntary or involuntary—convergence of legal systems and the safeguarding of the individual legal culture of each member state.
Angelique Devaux is a French Qualified Attorney for which she has practiced for several years in Paris, France, before moving to the US. She is also an LL.M American Law graduate at Indiana University Robert McKinney School of Law where she gives some lectures in French or European Law. In the meantime, she is a monthly contributor to ICONnect blog of Consitutional Law. Her areas of research essentially focus on Family Law, International Private Law (Conflict of Laws) and Comparative Law.
Suggested citation: Angelique Devaux, Successions in Europe: What’s New in 2015?, JURIST- Professional Commentary, Jan. 15, 2015, http://jurist.org/professional/2015/01/angelique-devaux-successions-europe.php.
This article was prepared for publication by Josh Guckert, a Senior Editor for JURIST Commentary. Please direct any questions or comments to him at firstname.lastname@example.org
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