eu regulation international article ap

8/15/2019 EU Regulation International Article AP

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The European Regulation No. 650/2012

Related to International Successions( Effective as of ugust 1!" 2015 )

Conflicts of law rules in succession matters will drastically change in Europe on ugust1!th 2015 , when the new E.U. Regulation No. 6 !"#!1#, adopted on $uly % th #!1#,&ecomes effecti'e in most of the European Union $urisdictions.

#sual residence at the ti$e of death will &ecome the main criterion used to select asingle and uniformed applica&le law.

t too* almost + years for the proposed Regulation of 1% cto&er #!!- on internationalsuccessions to &e adopted in its final form on % $uly #!1#, and enacted on 16 ugust#!1#.

/hen, another + years ha'e passed &etween the enactment of the Regulation and the fulleffecti'eness of the new pro'isions.

0 hy is that so2

t would &e an understatement to say that this Regulation was eagerly awaited &ypractitioners, while all commentators agreed that it is introducing profound inno'ationsin the matter.

/his mini re'olution pro&a&ly e3plains the delay in its enforce$ent set for 1! ugust2015.

&'iously, this delay has &een &eneficial in gi'ing practitioners time to &ecome familiar with the new law on cross4&order and international successions.

t will e'entually replace the applica&le conflicts of law rules of the 5em&er tates, e3ceptin the U7 and reland which ha'e opted out.


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imilarly, 8enmar* has a permanent e3clusion in the field of 9ustice. 1

n order to understand the scope of this Regulation, one must remem&er at the outsetthat it e%cludes :

4 5atters related to ta%" custo$s and ad$inistration ,4 &ersonal status and fa$il' relations ,4 ssues related to a(sences and disappearances , and4 ssues relating to $atri$onial regi$es and their li)uidation .

n practice, this regulation aims at simplifying the process when dealing with internationalsuccessions and, in particular, European cross4&order successions.

/hese new pro'isions will:

4 8esignate the authorit' having *urisdiction to settle successions and, whereappropriate, to settle disputes that may arise in the process;

4 8etermine the applica(le la+, 4 Recogni


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4 Esta&lishes the .&rofessio /uris. , namely the possi&ility to designate in ad'ancethe law which will go'ern oneAs succession; this is the second ma9or inno'ation ofthe Regulation.

t is worth to address those two inno'ations further :

I. The #nification of the pplica(le a+

@rior to the application of the Regulation, the law go'erning international successionsremains, depending on the tate, either the law of the tate of which the deceased is anational, or B this is the case in rance B the law of his last domicile.

ome countries, including rance, ma*e a further distinction &etween mo'a&le andimmo'a&le property, that may lead to applying different respecti'e laws.

/his system is said to &e Dof scission or dual; it leads in practice to the application ofse'eral laws to settle a single succession, dependent on the nature of the assets.

rom a practical 'iewpoint, it has &ecome necessary to settle correlated conflicts of laws,as well as 9urisdictional dismissals, delays, lac* of predicta&ility and a&sence of legalcertainty, which are factors of increased Fprocedural ris*F (and related costs0).

/herefore, the situation will &e radically different under the new Regulation regime.

ndeed, in the 5em&er tates where it will &e applica&le, one la+ +ill govern the entiresuccession" regardless of the nature or location of the property.

Gy default, it will &e thela+ of the usual residence of the deceased at the ti$e ofdeath .#

Howe'er, there are a fe+ e%ceptions to this general rule:

4 f the deceased maintained closer ties +ith another State (to &e defined on a case

&y case &asis), the law of that tate will apply, cf. rticle #14# of the Regulation;4 tate $andator' la+s where the property is located may o'errule this general

9urisdiction pursuant to rticle +! of said Regulation;

4 DRenvoi to another 9urisdiction is also authori


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4 inally, under the &u(lic &olic' principle, a typical and well4*nown Dnational

safeguard in @ri'ate nternational =aw, it will &e possi&le to set aside a pro'ision ofthe otherwise applica&le law, if said law should &e o&'iously incompati&le with the@u&lic @olicy of the tate, cf. art. + of the Regulation.

n addition to the unification of the applica&le law relating to international successions,another no'elty is now to &e highlighted:

. The introduction of the .&rofessio /uris.

s mentioned a&o'e, it allows indi'iduals to choose the law that will &e go'erning theirsuccession and estate.

=egislators ha'e decided to respect and 'alue the indi'idual will, within certain limitshowe'er, since onl' the national la+ $a' (e designated ( ie the national law of thedeceased at the time of e3ecuting the act, or at the time of death).

hould a person ha'e a dou&le nationality, he or she may designate one of the twonational laws (again, assessed on the date of the election, or at the time of death).

/his choice may &e e3press or implied, &ut must result or &e statedin +riting in theform of Ddispositions of propert' upon death . +

t is o&'iously recommended to clearly e3press one s choice, rather than su&seOuentlylea'e the tas* of interpreting the sometimes am&iguous dispositions to heirs and"or toprofessionals...

t is also worth o&ser'ing that this choice could (e for$ali ed (efore the Regulation(eca$e applica(le , &ut it would only &e effecti'e if death would occur after ugust 1M,#!1 .

inally, practitioners must *eep in mind the universal application of this Regulation.

s a result :

D ny law s eci ied by this Regulation shall be a lied +hether or not it is the la+ of ae$(er State

ee rticle #! of the Regulation.

+

rticle #6 under the Regulation sets the conditions for the ubstantive validity o dis ositions o ro erty u on death , while rticle #Mdeals with the


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E'entually, that e3tensi'e uni'ersal scope of the Regulation might &e infringing on theforced heirship mechanisms.

or instance, English citi

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