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
COM(2009)154
Committee on Legal Affairs
Council Remarks
Title
on jurisdiction, applicable law,
on jurisdiction, applicable law,
recognition and enforcement of
recognition and enforcement of
decisions and authentic instruments
decisions
, acceptance and
in matters of succession and the
enforcement of authentic
creation of a European Certificate of
instruments in matters of succession
Succession
and the creation of a European
Certificate of Succession
Citation 1
Having regard to the Treaty
Having regard to the Treaty
on the
To be updated in the light of the
establishing the European
Functioning of the European
Lisbon Treaty
Community, and in particular
Union, and in particular
Article 61(c) and the second indent
Article
81(2) thereof,
of Article 67(5) thereof,
Citation 2
Having regard to the proposal from
Having regard to the proposal from
the Commission,
the
European Commission,
Citation 3
Having regard to the opinion of the
Having regard to the opinion of the
European Economic and Social
European Economic and Social
Committee,
Committee1,
Citation 4
Acting in accordance with the
Acting in accordance with the
To be updated in the light of the
procedure laid down in Article 251
procedure laid down in Article
294
Lisbon Treaty
of the Treaty,
of the Treaty,
1
OJ C 44, 11.2.2011, p. 148.
1
Recital 1
(1) The Community has set itself the
objective of maintaining and
developing an area of freedom,
security and justice. For the
progressive establishment of such an
area, it has to adopt measures
relating to judicial cooperation in
civil matters with a cross-border
impact to the extent necessary for
the proper functioning of the
internal market.
Recital 2
(2) In accordance with Article 65(b)
To be updated in the light of the
of the Treaty, these measures are to
Lisbon Treaty
include those promoting the
compatibility of the rules applicable
in the Member States concerning the
conflict of laws and of jurisdiction.
Recital 3
(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 civil matters
and invited the Council and the
Commission to adopt a programme
of measures to implement that
principle.
Recital 4
(4) On 30 November 2000 the
Council adopted a draft programme
of measures for implementation of
the principle of mutual recognition
of decisions in civil and commercial
2
matters .The programme identifies
measures relating to the
harmonisation of conflict-of-law
rules as those facilitating the mutual
recognition of decisions. It provides
for the drawing up of an instrument
relating to successions and wills,
which were not included in Council
Regulation (EC) No 44/2001 of 22
December 2000 on jurisdiction and
the recognition and enforcement of
judgments in civil and commercial
matters.
Recital 5
(5) The European Council meeting
in Brussels on 4 and 5 November
2004 adopted a new programme
entitled “The Hague Programme:
strengthening freedom, security and
justice in the European Union" .The
programme underlines the need to
adopt by 2011 an instrument on the
law of succession which deals
among other things with the issue of
conflict of laws, legal jurisdiction,
mutual recognition and the
enforcement of decisions in this
area, a European Certificate of
Succession and a mechanism
enabling it to be known with
certainty if a resident of the
European Union has left a last will
or testament.
Recital 6
(6) The smooth functioning of the
internal market should be facilitated
by removing the obstacles to the free
3
movement of persons who currently
face difficulties asserting their rights
in the context of an international
succession. In the European area of
justice, citizens must be able to
organise their succession in
advance. The rights of heirs and/or
legatees, other persons linked to the
deceased and creditors of the
succession must be effectively
guaranteed.
Recital 7
(7) In order to achieve these
objectives, this Regulation should
group together the provisions on
legal jurisdiction, applicable law,
recognition and enforcement of
decisions and authentic instruments
in this area and on the European
Certificate of Succession.
Recital 8
(8) The scope of this Regulation
(8) The scope of this Regulation
should include all questions arising
should include all questions arising
in civil law in connection with
in civil law in connection with
succession to the estates of deceased succession to the estates of deceased
persons, namely all forms of
persons, namely all forms of
transfer of property as a result of
transmission of assets, rights and
death, be it by voluntary transfer,
obligations as a result of death, be it
transfer in accordance with a will or by voluntary transfer, transfer in
an agreement as to succession, or a
accordance with a will or an
legal transfer of property as a result
agreement as to succession, or a
of death.
legal transfer of property as a result
of death.
Recital 9
(9) The validity and effects of gifts
(9) The validity and effects of gifts
are covered by Regulation (EC) No
are covered by Regulation (EC) No
4
593/2008 of the European
593/2008 of the European
Parliament and of the Council of 17
Parliament and of the Council of 17
June 2008 on the law applicable to
June 2008 on the law applicable to
contractual obligations (Rome I).
contractual obligations (Rome I).
They should therefore be excluded
They should therefore be excluded
from the scope of this Regulation in from the scope of this Regulation in
the same way as other rights and
the same way as other rights and
assets created or transferred other
assets created or transferred other
than by succession. However, it is
than by succession. However, it is
the law on succession determined
the law on succession determined
pursuant to this Regulation which
pursuant to this Regulation which
should specify if this gift or other
should specify if this gift or other
form of provisions inter vivos
giving form of provisions
performed inter
rise to an immediate right in rem
vivos can lead to any obligation to
can lead to any obligation to restore
restore or account for gifts when
or account for gifts when
determining the shares of heirs or
determining the shares of heirs or
legatees in accordance with the law
legatees in accordance with the law
on succession.
on succession.
Recital 10
(10)
While this Regulation should
(10) The exhaustive list (‘numerus
cover the method of acquiring a
clausus’) of rights in rem which may
right in rem in respect of tangible
exist under the national law of the
or intangible property as provided
Member States, which is, in
for in the law governing the
principle, governed by the lex rei
succession, the exhaustive list
sitae, should be included in the
(“numerus clausus”) of rights in rem national rules governing conflict of
which may exist under the national
laws.
There should be adaptation in
law of the Member States, which is,
accordance with the recognised
in principle, governed by the lex rei
principles of international private
sitae, should be included in the
law.
national rules governing conflict of
laws.
The publication of these
rights, in particular the functioning
of the land registry and the effects
of entry or failure to make an entry
into the register, which is also
5
governed by local law, should also
be excluded.
Recital 10 a (new)
(10 a) This Regulation should
cover the method of acquiring a
right in rem in respect of tangible
or intangible property as provided
for in the law governing the
succession. Entries in public
registers, the publication of the
rights referred to and the effects of
entries or failure to make entries,
also governed by the lex rei sitae,
should be excluded.
Recital 11
(11) In order to take into account the
different methods of settling a
succession in the Member States,
this Regulation should define the
jurisdiction of the courts in the
broad sense, including the
jurisdiction of non-judicial
authorities where they exercise a
jurisdictional role, in particular by
delegation.
Recital 12
(12) In view of the increasing
(12) In view of the increasing
mobility of European citizens and in mobility of European citizens and in
order to encourage good
order to encourage good
administration of justice within the
administration of justice within the
European Union and to ensure that a European Union and to ensure that a
genuine connecting factor exists
genuine connecting factor exists
between the succession and the
between the succession and the
Member State exercising
Member State exercising
jurisdiction, this Regulation should
jurisdiction, this Regulation should
provide for the competence of the
provide for the competence of the
6
courts of the Member State
of the
courts of the Member State for the
last habitual residence of the
whole of the succession.
In disputed
deceased for the whole of the
cases, jurisdiction should lie with
succession.
For the same reasons, it the courts of the Member State of
should allow the competent court,
the habitual residence of the
by way of exception and under
deceased at the time of death.
certain conditions, to transfer the
Where the deceased exercises his or
case to the jurisdiction where the
her right to choose in accordance
deceased had nationality if the
with Article 17, the courts where
latter is better placed to hear the
the deceased had nationality should
case.
also have jurisdiction if this is
requested by all parties. If Member
States also provide for judicial
competence in undisputed cases,
this should apply accordingly, with
the proviso that the wishes of all
the parties involved should be
respected; where necessary a court
which initially accepted jurisdiction
should decline jurisdiction. Should
the parties involved wish to resolve
inheritance issues without going
through the courts, they should not
be hindered in so doing by the rules
on jurisdiction.
Recital 12 a (new)
(12 a) The term ‘court’ should
cover all authorities which exercise
judicial functions, such as, in
certain legal systems, notaries
acting as court commissioners or
persons appointed by a court to
distribute the estate. Such
authorities should therefore be
subject to jurisdiction rules and
their decisions should be deemed
for the purposes of this Regulation
7
to constitute court decisions.
Recital 12 b (new)
(12 b) For the purposes of
determining the habitual residence
as the centre of interests, an overall
assessment should be made taking
account of the circumstances of life
of the deceased at the time of his or
her death and during the preceding
years, in particular the duration
and regularity of his or her
presence in the State concerned,
together with the circumstances
and reasons therefor.
Where the deceased had a
residence from which he pursued a
professional, economic or other
special activity or interests and at
the same time had a close and
persistent tie with a different
location especially regarding his
family and social life, the location
where the centre of interests of his
family and social life was located
should in case of doubt be
determined as his habitual
residence.
Where doubt persists, especially in
cases of frequent change of State or
the absence of a centre of family
and social interests, his nationality
and the location of his essential
assets could also be taken into
account in making the overall
assessment.
8
Recital 13
(13) In order to facilitate mutual
recognition, no referral to the rules
of jurisdiction under national law
should be envisaged from now on.
There are therefore grounds for
determining in this Regulation the
cases in which a court in a Member
State can exercise subsidiary
jurisdiction.
Recital 14
(14) In order to simplify the lives of (14) In order to simplify the lives of
heirs and legatees living in a
heirs and legatees living in a
Member State other than that in
Member State other than that in
which the courts are competent to
which the courts are competent to
settle the succession, the settlement
settle the succession, the settlement
should authorise them to make
should
also authorise them to make
declarations regarding the
declarations regarding the
acceptance or waiver of succession
acceptance or waiver of succession
in the manner provided for under the in the manner provided for under the
law of their last habitual residence,
law of their last habitual residence,
if necessary before the courts of that if necessary before the courts of that
State.
State.
Recital 15
(15) The close links between the
deleted
succession rules and the
substantive rules mean that the
Regulation should provide for the
exceptional competence of the
courts of the Member State where
the property is located if the law of
this Member State requires the
intervention of its courts in order to
take measures covered by
substantive law relating to the
transmission of this property and
9
its recording in the land registers.
Recital 16
(16) The harmonious functioning of
justice requires that irreconcilable
decisions should not be pronounced
in two Member States. To this end,
this Regulation should provide for
general rules of procedure based on
Regulation (EC) No 44/2001.
Recital 17
(17) 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 rules
governing conflict of laws should be
introduced in order to avoid
contradictory decisions being
delivered in the Member States. The
main rule should ensure that the
succession is governed by a
predictable law to which it is closely
linked. Concern for legal certainty
requires that this law should cover
all of the property involved in the
succession, irrespective of its nature
or location, in order to avoid
difficulties arising from the
fragmentation of the succession.
Recital 18
18) This Regulation should make it
(18) This Regulation should make it
easier for citizens to organise their
easier for citizens to organise their
succession in advance by enabling
succession in advance by enabling
them to choose the applicable law.
them to choose the applicable law.
This choice should be subject to
This choice should be subject to
10
strict rules in order to respect the
strict rules in order to respect the
legitimate expectations of the heirs
legitimate expectations of the heirs
and legatees.
and legatees.
In accordance with
the favor testamenti principle, a
person should be able to choose as
the law governing his or her
succession the internal law of the
State (excluding its rules of private
international law) whose
nationality he or she possesses
when the choice is made or at the
time of his or her death. Where
several nationalities are held, he or
she should be able to choose from
them. The choice of law should be
sufficiently clear in the light of
generally recognised interpretive
criteria.
Recital 19
(19) The validity of the form of
(19)
For the Member States which
dispositions of property upon death
have ratified the Hague Convention
is
not covered by the Regulation.
of 5 October 1961 on the conflicts
For the Member States which have of laws relating to the form of
ratified it, its scope is governed by
testamentary dispositions, the scope
the provisions of the
Hague
of the validity of the form of
Convention
of 5 October 1961 on
dispositions of property upon death
the conflicts of laws relating to the
is governed by the provisions of the
form of
testamentary dispositions.
said Convention.
Moreover,
provisions on the validity of the
form of dispositions
of property
upon death drawn from said
Convention, and which apply
equally to agreements as to
succession, should be incorporated
into this Regulation.
Recital 19 a (new)
11
(19a) Provisions on the law
applicable to testamentary capacity
should be incorporated in the
Regulation.
Recital 20
(20) In order to facilitate recognition (20)
Agreements as to succession
of succession rights acquired in a
which are valid under the law
Member State, the conflict-of-laws
designated by this Regulation, and
rule should favour the validity of the
the rights deriving from such
agreements as to succession by
agreements, should be recognised
accepting alternative connecting
in the Member States. Special rules
factors. The legitimate expectations
should be laid down concerning the
of third parties should be preserved.
law applicable to the
substantive
validity
and binding effect of
, and
the other legal issues specifically
relating to, agreements as to
succession.
Where relevant, those
rules should apply mutatis
mutandis to joint wills.
Recital 20 a (new)
(20a) In the case of immovable
succession property or succession
property recorded in registers, this
should be without prejudice to
provisions of local law which apply
to the establishment or
transmission of rights in rem or the
recording thereof in registers.
Recital 21
(21)To the extent compatible with
the general objective of this
Regulation and in order to facilitate
the transmission of a right in rem
acquired under the law on
succession, this Regulation should
not present an obstacle to the
12
application of certain mandatory
rules of law of the place in which
property is located that are
exhaustively listed.
Recital 21 a (new)
(21a) In the case of immovable
succession property or succession
property recorded in registers, this
should be without prejudice to
provisions of local law which relate
to the establishment or
transmission of rights in rem or the
recording thereof in registers, in so
far as title is acquired by means of
an act of establishment or of
transmission or a court judgment
alone or in conjunction with an
entry in a register.
Recital 22
(22) On account of their economic,
family or social purpose, some
buildings, enterprises or other
categories of property are subject to
a particular succession regime in the
Member State in which they are
located. This Regulation should
respect the particular regime.
However, this exception to the
application of the law on succession
requires strict interpretation in order
to remain compatible with the
general objective of this Regulation.
The exception does not apply in
particular to the conflict-of-laws rule
subjecting immovable property to a
different law from that applicable to
13
movable property or to the reserved
portion of an estate.
Recital 23
(23) The differences between, on
the one hand, national solutions as
to the right of the State to seize a
vacant succession and, on the other
hand, the handling of a situation in
which the order of death of one or
more persons is not known can lead
to contradictory results or,
conversely, the absence of a
solution. This Regulation should
provide for a result consistent with
the substantive law of the Member
States.
Recital 23 a (new)
(23 a) Should application of the
rules of law of another State be
based on a choice of law which has
been made, in accordance with the
principles of international private
law only that State's substantive
law must be applied. Should that
not be the case, the international
private law provisions of the State
concerned should be applied in so
far as they make reference to the
law of a Member State. That State
will apply its substantive law.
Recital 24
(24) Considerations of public
(24) Considerations of public
interest should allow courts in the
interest should allow courts in the
Member States the opportunity in
Member States the opportunity in
exceptional circumstances to
exceptional circumstances to
disregard the application of foreign
disregard the application of foreign
14
law in a given case where
this
law where
it would be
manifestly
would be contrary to the public
contrary to the public policy of the
policy of the forum. However, the
forum. However, the courts should
courts should not be able to apply
not be able to apply the public-
the public-policy exception in order
policy exception in order to
to disregard the law of another
disregard the law of another
Member State or to refuse to
Member State or to refuse to
recognise or enforce a decision, an
recognise or enforce a decision, an
authentic instrument, a legal
authentic instrument, a court
transaction or a European Certificate settlement or a European Certificate
of Succession drawn up in another
of Succession drawn up in another
Member State
when this would be
Member State
if doing so would be
contrary to the Charter of
contrary to the Charter of
Fundamental Rights of the European Fundamental Rights of the European
Union, and in particular Article 21,
Union, and in particular Article 21,
which prohibits all forms of
which prohibits all forms of
discrimination.
discrimination.
As a rule,
differences in law on indefeasible
interests should not be cited as
grounds for disregarding
application of the law of another
Member State.
Recital 25
(25) In the light of its general
objective, which is the mutual
recognition of decisions given in the
Member States concerning
succession to the estates of deceased
persons, this Regulation should lay
down rules relating to the
recognition and enforcement of
decisions on the basis of Regulation
(EC) No 44/2001 and which should
be adapted where necessary to meet
the specific requirements of matters
covered by this Regulation.
Recital 26
15
(26) In order to take into account the (26) In order to take into account the
different methods of settling the
different methods of settling the
issues regarding successions in the
issues regarding successions in the
Member States, this Regulation
Member States, this Regulation
should guarantee the
recognition
should guarantee the
free movement
and enforcement of authentic
and enforcement of authentic
instruments. Nevertheless, the
instruments. Nevertheless, the
authentic instruments cannot be
authentic instruments cannot be
treated as court decisions with
treated as court decisions with
regard to their recognition.
The
regard to their recognition.
Within
recognition of authentic instruments
the limits of the provisions of the
means that they enjoy the same
country of origin and country of
evidentiary effect with regard to
enforcement, authentic instruments
their contents
and the same effects
should enjoy the same evidentiary
as in their country of origin, as well effects with regard to their contents,
as a presumption of validity which
as well as a presumption of validity
can be eliminated if they are
which can be eliminated if they are
contested. This validity will
contested. This validity will
therefore always be contestable
therefore always be contestable.
The
before a court in the Member State legal act on which the instrument is
of origin of the authentic
based is subject to international
instrument, in accordance with the private law and to the relevant law
procedural conditions defined by
of succession.
the Member State.
Recital 27
(27) An accelerated, manageable
(27) An accelerated, manageable
and efficient settlement of
and efficient settlement of
international successions within the
international successions within the
European Union implies the
European Union implies the
possibility for the heir, legatee,
possibility for the heir, legatee,
executor of the will or administrator executor of the will or administrator
to prove easily on an out-of-court
to prove easily on an out-of-court
basis their capacity in the Member
basis their capacity in the Member
States in which the property
States in which the property
involved in the succession is
involved in the succession is
located. In order to facilitate free
located. In order to facilitate free
movement of this proof within the
circulation of this proof within the
16
European Union, this Regulation
European Union, this Regulation
should introduce a uniform model
should introduce
, for cross-border
for the European Certificate of
cases, a uniform model for the
Succession and appoint the authority European Certificate of Succession
competent to issue it. In order to
and appoint the authority competent
respect the principle of subsidiarity, to issue it.
That authority may be a
this certificate should not replace the
court as defined in this Regulation
internal procedures of the Member
or another authority, such as a
States. The Regulation should
notary. The competent authority
specify the linkage with these
should be appointed by the Member
procedures.
State whose courts have
competence under this Regulation. That should include competence
through referral to a court or entity
better placed to hear the case. In
order to respect the principle of
subsidiarity, this certificate should
not replace the internal procedures
of the Member States. The
Regulation should specify the
linkage with these procedures.
Recital 27 a (new)
(27 a) If a Member State requires
for the transfer of property deeds or
other rights in rem relating to
immovable succession property, the
public registration of those deeds or
rights or other formalities, where
possible the authority which issues
the European Certificate of
Succession shall have regard to
those formalities and refer to them.
In order to facilitate matters for
citizens, reference shall be made to
the e-justice portal for the technical
details.
17
Member States which prescribe
such further formalities shall
forward to the Commission all the
relevant information so that it can
be published on the e-justice portal
and made public.
Recital 28
(28) The international commitments
entered into by the Member States
mean that this Regulation should not
affect the international conventions
to which one or more Member
States are party when they are
adopted. Consistency with the
general objectives of this Regulation
requires, however, that the
Regulation take precedence as
between Member States over the
conventions.
Recital 29
(29) In order to facilitate the
application of this Regulation,
provision should be made for an
obligation for Member States to
communicate certain information
regarding their law on succession
within the framework of the
European legal network in civil and
commercial matters created by
Council Decision 2001/470/EC of
28 May 2001 .
Recital 30
(30)
The measures necessary for
(30)
In order to ensure uniform
the implementation of this
conditions for the implementation
Regulation should be adopted in
of this Regulation, implementing
accordance with Council Decision
powers should be conferred on the
18
1999/468/EC of 28 June 1999
Commission and exercised in
laying down the procedures for the accordance with Regulation (EU)
exercise of implementing powers
No…/2011 of the European
conferred on the Commission.
Parliament and of the Council of
… laying down the rules and
general principles concerning
mechanisms for control by the
Member States of the Commission's
exercise of implementing powers.
Recital 31
(31)
It would be particularly
(31)
The advisory procedure should
appropriate to enable the
be used for the adoption of any
Commission to adopt any
amendment to the forms provided
amendment to the forms provided
for in this Regulation, taking into
for in this Regulation in
account the nature of the
accordance with the procedure laid implementing act. down in Article 3 of Decision
1999/468/EC.
Recital 32
(32) Where the concept of
“nationality” serves to determine the
law applicable, account should be
taken of the fact that certain States
whose legal system is based on
common law use the concept of
“domicile” and not “nationality” as
an equivalent connecting factor in
matters of succession.
Recital 33
(33) Since the objectives of this
(33) Since the objectives of this
Regulation, namely the free
Regulation, namely the free
movement of persons, the
movement of persons, the
organisation in advance by
organisation in advance by
European citizens of their
European citizens of their
succession in an international
succession in an international
context, the rights of heirs and
context, the rights of heirs and
19
legatees, and persons linked to the
legatees, and persons linked to the
deceased and the creditors of the
deceased and the creditors of the
succession, cannot be satisfactorily
succession, cannot be adequately
met by the Member States and can
met by the Member States and can
therefore, by reason of the scale and therefore, by reason of the scale and
effects of this Regulation, be better
effects of this Regulation, be better
achieved at
Community level, the
achieved at
Union level, the
Union
Community may take measures in
may take measures in accordance
accordance with the principle of
with the principle of subsidiarity as
subsidiarity as set out in Article 5 of set out in Article 5 of the
EU Treaty.
the Treaty. In accordance with the
In accordance with the principle of
principle of proportionality, as set
proportionality, as set out in that
out in that Article, this Regulation
Article, this Regulation does not go
does not go beyond what is
beyond what is necessary in order to
necessary in order to achieve those
achieve those objectives.
objectives.
Recital 34
(34) This Regulation respects
fundamental rights and observes the
principles recognised in the Charter
of Fundamental Rights of the
European Union, in particular
Article 21 thereof which states that
any discrimination based on any
ground such as sex, race, colour,
ethnic or social origin, genetic
features, language, religion or belief,
political or any other opinion,
membership of a national minority,
property, birth, disability, age or
sexual orientation shall be
prohibited. This Regulation must be
applied by the courts of the Member
States in observance of these rights
and principles.
Recital 35
20
(35) In accordance with Articles 1
and 2 of the Protocol on the position
of the United Kingdom and Ireland
annexed to the Treaty on European
Union and the Treaty establishing
the European Community, [the
United Kingdom and Ireland have
notified their wish to participate in
the adoption and application of this
Regulation]/[without prejudice to
Article 4 of the Protocol, the United
Kingdom and Ireland will not
participate in the adoption of this
Regulation and will not be bound by
it or be subject to its application].
Recital 36
(36) In accordance with Articles 1
and 2 of the Protocol on the position
of Denmark annexed to the Treaty
on European Union and the Treaty
establishing the European
Community, Denmark is not taking
part in the adoption of this
Regulation and is therefore not
bound by it or subject to its
application,
Article 1
1. This Regulation shall apply to
1. This Regulation shall apply to the
successions to the estates of
succession to the estates of deceased
deceased persons. It shall not apply
persons2. It shall not apply
to
to revenue, customs or
revenue, customs or administrative3
administrative matters.
matters.
2 It will be indicated in a recital that the future Regulation will apply only to succession cases with cross-border implications. The provisions
of each Chapter will make it clear in which situations the future Regulation will apply.
3
It will be indicated in a recital that "administrative matters" here refers to administrative public law issues and not to matters relating to the
administration of the estates of deceased persons.
21
2. In this Regulation, “Member
(…)
State” means all the Member States
with the exception of Denmark, [the
United Kingdom and Ireland].
3. The following shall be excluded
3. The following shall be excluded
from the scope of this Regulation:
from the scope of this Regulation:
(a) the status of natural persons, as
(a) the status of natural persons, as
(a) the status of natural persons, as
well as family relationships and
well as family relationships and
well as family relationships and
relationships
which are similar in
relationships
deemed by the law
relationships
deemed by the law
effect;
applicable to such relationships to
applicable to such relationships to
have comparable effects to
have comparable effects;
marriage;
(b) the legal capacity of natural
(b) the legal capacity of natural
(b) the legal capacity of natural
persons,
notwithstanding Article
persons,
without prejudice to
persons,
without prejudice to
19(2)(c) and (d);
Article 19(2)(c) and (d)
and to
Article 19(2)(c)
(…) and to Article
Article 19a;
19c;
(c) the disappearance, absence and
(c) the disappearance, absence and
(c)
questions relating to the
presumed death of a natural person;
presumed death of a natural person
,
disappearance,
the absence
or the
without prejudice to Article 23;
presumed death of a natural person;
(d) questions
regarding the
(d) questions
relating to
(d) questions
relating to
matrimonial property
regime and
matrimonial property
regimes and
matrimonial property regimes4
the property
regime applicable to
property
regimes of relationships
and property regimes of
relationships
which are deemed to
deemed
by the law applicable to
relationships
(…) deemed
by the
have comparable effects to
such relationships to have
law applicable to such
marriage;
comparable effects to marriage;
relationships to have comparable
effects to marriage;
(e) maintenance obligations;
(e) maintenance obligations
other
(e) maintenance obligations
other
than those arising by reason of
than those arising by reason of
death;
death;
4
It will be indicated in a recital that this exclusion also covers marriage settlements to the extent that such settlements do not deal with
succession matters. That recital will also indicate that although questions relating to matrimonial property regimes and similar property
regimes are excluded from the scope of the Regulation, the authorities dealing with a given succession under the future Regulation should,
depending on the situation, take into account the liquidation of a possible matrimonial property regime or similar property regime when
determining the estate of the deceased.
22
(e-1) the formal validity of
dispositions of property upon
death made orally;
(f) rights and assets created or
(f)
property rights
, interests and
(f)
property rights,
interests and
transferred other than by succession assets created or transferred
assets created or transferred
to the estate of deceased persons,
otherwise than by succession to the
otherwise than by succession (…),
including gifts,
such as in joint
estate of a deceased person,
by way
by way of for instance gifts, joint
ownership with right of
survival,
of for instance gifts,
donationes
ownership with
a right of
pension plans, insurance contracts
mortis causa, joint ownership with
a survivorship, pension plans,
and or arrangements of a similar
right of
survivorship, pension plans, insurance contracts and
nature,
notwithstanding Article
insurance contracts and
arrangements of a similar nature,
19(2)(j);
arrangements of a similar nature,
without prejudice to Article
without prejudice to Article
19(2)(j);
19(2)(j);
(g) questions covered by company
(g) questions governed
by the law of (g) questions
governed by
the law
law, such as clauses contained in
companies and other bodies,
of companies and other bodies,
company memoranda of association
corporate or unincorporated, such
corporate or unincorporated, such
and articles of association,
as clauses in the memoranda of
as clauses in the memoranda of
associations and legal persons and
association and articles of
association and articles of
determining what will happen to the association
of companies and other association
of companies and other
shares upon the death of
their
bodies, corporate or
bodies, corporate or
partners;
unincorporated which determine
unincorporated which determine
what will happen to the shares upon what will happen to the shares upon
the death of
the members;
the death of the
members;
(h) the dissolving, closure and
(h) the dissolving, closure and
(h) the dissolution,
extinction and
merging of enterprises, associations
merging of enterprises, associations
merger of
companies and other
and legal persons;
or legal persons;
bodies, corporate or
unincorporated (…);
(i) the constitution,
functioning and (i) the constitution,
internal rules
(i)
the creation, administration
dissolving of trusts;
and dissolving of trusts
except trusts and dissolution of trusts;5 created by testamentary
5 It will be indicated in a recital that this exclusion is not to be seen as a general exclusion of trusts. The creation of a trust under a will or the
creation of a statutory trust in connection with intestate succession will fall within the scope of the future Regulation and will be governed by
the law applicable to the succession under the Regulation with respect to the devolution of the assets and the determination of the
beneficiaries.
23
dispositions or by the rules on
intestacy;
(j) the nature of rights in rem
(j) the nature of rights in rem and
(j) the nature of rights
in rem,6 and
relating to property and publicising
procedures for acquisition in rem,
these rights.
the recording of rights in rem in a
public register or the publicising
of
those rights
and the effects of
recording or failing to record a
right in rem in a public register.
(k) 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.7
6
It will be indicated in a recital that this exclusion entails that 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. However, in such a case the Member State
concerned will, to the extent possible, have to adapt the unknown right in rem to the closest equivalent national right.
7
It will be indicated in recitals what this exclusion means. Such recitals will be worded along the following lines):
'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 which determines under what legal conditions and
how the recording must be carried out and which authorities are in charge of checking that all requirements are met and that the
documentation presented 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 foreseen 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 that the registration authorities may ask the person applying for registration to provide such additional information or
documents which are required under the law of the Member State in which the register is kept. The competent authority may indicate to the
person applying for registration how the lacking information can be provided.
24
Article 1a
8 -
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.
Article 2
For the purposes of this Regulation,
For the purposes of this Regulation,
1. For the purposes of this
the following definitions shall apply: the following definitions shall apply: Regulation
(…):
(a)“succession to the estates of
(a) “succession to the estates of
(a) “succession" means the
deceased persons”: all forms of
deceased persons": all forms of
succession to the estate of a
transfer of
property as a result of
transfer of
assets, rights and
deceased person and covers all
death, be it by voluntary transfer, in
obligations as a result of death, be it forms of transfer of
assets, rights
accordance with a will or an
by voluntary transfer, in accordance
and obligations by reason of death,
agreement as to succession, or a
with a will or an agreement as to
be it a voluntary transfer
under a
legal transfer of property as a result
succession, or a legal transfer of
(…) disposition of property upon
of death;
property as a result of death;
death, or a transfer
through
intestate succession;
(b) “court”: any judicial authority or deleted
(moved to the new paragraph 2)
any competent authority in the
Member States which carries out a
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, in particular, whether the recording is declaratory or constitutive in effect.
Thus, if, for instance, the acquisition of a right in an immovable property requires the recording in a register under the law of the State in
which the register is kept, the moment of such acquisition should be governed by the law of that State."
The Member States should provide fact sheets listing all the documents or information usually required for the purposes of registration of
immovable property located on their territory under Article 46.
8
It will be indicated in a recital that under the future Regulation all notaries who currently have competence in matters of succession in the
Member States will be able to continue to exercise such competence. Whether or not the notaries in a given Member State will be bound by
the rules of jurisdiction set out in the future Regulation will depend on whether or not they fall within the definition of "court" for the
purposes of the Regulation. All acts issued by notaries in all Member States will circulate under the future Regulation either, for acts issued
by notaries bound by the rules of jurisdiction, in accordance with the provisions on recognition and enforcement of decisions or, for acts
issued by notaries not bound by the rules of jurisdiction, in accordance with the provisions on authentic instruments.
25
judicial function in matters of
succession. Other authorities which
carry out by delegation of public
power the functions falling within
the jurisdiction of the courts as
provided for in this Regulation shall
be deemed to be courts
(ba) "disposition of property upon
death" means a will, a joint will or
an agreement as to succession;
(c) “agreement as to succession”: an (c) “agreement as to succession”: an (c) “agreement as to succession”
agreement which confers, modifies
agreement
including an agreement
means an agreement
, including an
or withdraws, with or without
resulting from mutual wills which
agreement resulting from mutual
consideration, rights to the future
confers, modifies or withdraws, with
wills, which
(…), with or without
succession of one or more persons
or without consideration, rights to
consideration,
creates, modifies or
who are party to the agreement;
the future succession of one or more
terminates rights to the future
persons who are party to the
estate or estates of one or more
agreement;
persons
(…) party to the agreement;
(d) “joint wills”: wills drawn up by
(d) “joint wills”: wills drawn up by
(d) “joint will”
means a will drawn
two or more persons in
the same
two or more persons in
one or more up in
one instrument by two or more
instrument for the benefit of a third instruments on the basis of their
persons;
party and/or on the basis of a
joint decision;
reciprocal and mutual disposition;
(d1) "disposition of property upon death" means a will, a joint will or
an agreement as to succession;
(e) “home Member State”: the
(e) "Member State
of origin” means (e) “(…) Member State
of origin”
Member State in which,
depending
the Member State in which,
as the
means the Member State in which,
on the case, the decision has been
case may be, the decision has been
as the case may be, the decision has
given, the
legal transaction
given, the
court settlement approved been given, the
court settlement
approved or concluded and the
or concluded, the authentic
approved or concluded, the authentic
authentic instrument
drawn up;
instrument
established or the
instrument
established or the
European Certificate of Succession European Certificate of
issued;
Succession issued;
26
(f) “Member State
addressed”: the
(f) “Member State
of enforcement”
(f) “Member State
of enforcement
Member State in which
recognition
means the Member State in which
(…)” means the Member State in
and/or enforcement of the decision,
the
enforceability or
the
which the
(…) enforceability or
the
the
legal transaction or the
enforcement of the decision, the
enforcement of the
decision, the
authentic instrument is
requested;
court settlement or the authentic
court settlement or the authentic
instrument is
sought;
instrument is
sought;
(g) “decision”: any decision
given in (g) ‘decision’: any decision
adopted (g) “decision”
means any decision
a matter of succession to the estate
in a matter of succession to the
(…) in a matter of succession (…)
of a deceased person by a court of a
estate of a deceased person by a
given by a court of a Member State,
Member State, whatever the
court
or entity of a Member State,
whatever the decision may be called,
decision may be called, including a
whatever the decision may be called, including (…)
a decision on the
decree, order, ordinance or writ of
including a decree, order, ordinance
, determination of costs or expenses
execution, as well as the
measure or writ of execution, as
by an officer of the court;
determination of costs or expenses
well as the determination of costs or
by an officer of the court;
expenses by an officer of the court;
(ga) "court settlement" means a
(g1) "court settlement" means a
settlement in a matter of succession settlement in a matter of
which has been approved by a court succession which has been
or concluded before a court in the
approved by a court or concluded
course of proceedings;
before a court in the course of
proceedings;
(h) “authentic instrument”: an
(h) "authentic instrument": an
(h) “authentic instrument”
means a
instrument which has been formally instrument
in a matter of succession document in a matter of succession
drawn up or registered as an
which has been formally drawn up
which has been formally drawn up
authentic instrument and the
or registered as an authentic
or registered as an authentic
authenticity of which:
instrument and the authenticity of
instrument
in a Member State and
– relates to the signing and content
which:
the authenticity of which:
of the authentic instrument; and
– relates to the signing and content
(i) relates to the signature and the
– has been established by a public
of the authentic instrument; and
content of the authentic instrument;
authority or other authority
– has been established by a public
and
empowered for that purpose by the
authority or other authority
(ii) has been established by a public
Member State in which it originates; empowered for that purpose by the
authority or other authority
Member State in which it originates; empowered for that purpose by the
Member State of origin.
27
(i)“European Certificate of
(i) ‘European Certificate of
(i) (…)
Succession”: the certificate issued
Succession’: the certificate issued by
by the competent court pursuant to
the competent court
or authority
Chapter VI of this Regulation.
pursuant to Chapter VI of this
Regulation;
1a. For the purposes of this
2. For the purposes of this
Regulation, the term “court”
Regulation the term “court”
includes such other authorities and means any judicial authority and
legal professionals with
all other authorities and legal
competence in matters of
professionals with competence in
succession which exercise judicial
matters of succession which
functions, act by delegation of
exercise judicial functions or act
power by a court or act under the
by delegation of power by a
control of a court, provided that
judicial authority or act under the
those authorities and legal
control of a judicial authority,
professionals afford guarantees
provided that such other
with regard to their impartiality
authorities and legal professionals
and the right of all parties to be
offer guarantees with regard to
heard and that their decisions
impartiality and the right of all
under the law of the Member State
parties to be heard and provided
in which they operate:
that their decisions under the law
a) are subject to appeal to or review of the Member State in which they
by a judicial authority; and
operate:
(a) may be made the subject of an
b) have similar force and effect as a appeal to or review by a judicial
decision of a judicial authority on
authority; and
the same matter.
(b) have a similar force and effect
as a decision of a judicial
authority on the same matter. 9
9
A recital will be inserted explaining which authorities will be covered by the term "court" under the future Regulation, that is, courts in the
true sense of the word, the notaries or registry offices in certain Member States who or which, in 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. That recital will also explain that the term "court" does not include 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 who do not
exercise judicial functions.
28
The Member States shall notify
the Commission of the other
authorities and legal professionals
referred to in the first
subparagraph in accordance with
Article 47.
Article 3
Courts
3. The provisions of this Chapter
deleted
(deleted)
shall apply to all courts in the
Member States but shall apply to
non-judicial authorities only where
necessary.
Article 4
General jurisdiction
1
Notwithstanding the provisions of 1. The courts of the Member State
in (…) The courts of the Member State
this Regulation the courts of the
which the deceased had
his habitual
in which the deceased had
his
Member State
on whose territory
residence at the time of death shall
habitual residence
10 at the time of
10
Two recitals will be inserted providing guidance on the determination of the habitual residence of the deceased at the time of death, one
spelling out certain factual elements to be taken into account and one listing certain complex cases. These recitals will be worded along the
following lines:
"This Regulation provides that the general connecting factor for the purposes of determining both jurisdiction and the applicable law is 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."
"In certain cases, determining the deceased's habitual residence may prove complex. Such a case might 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 might, depending on the circumstances of the case, be considered still to have
his habitual residence in his State of origin. Other complex cases might 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, the nationality or the location of the assets might be a special factor in the overall assessment of all the factual
circumstances."
29
the deceased had habitual residence
have jurisdiction to rule
on the
death shall
have jurisdiction to rule
at the time of
their death shall
be
succession to the estate of the
on the succession as a whole11.
competent to rule
in matters of
deceased as a whole.
successions.
Article 5
Referral to a court better placed to
Transfer to a court better placed to
hear the case
rule on the succession
1. Where the law of a Member State 1. Where the law of a Member State
(deleted)
was chosen by the deceased to
was chosen by the deceased to
govern their succession in
govern their succession in
accordance with Article 17, the
accordance with Article 17, the
court seised in accordance with
court seised in accordance with
Article 4
may, at the request of one
Article 4
or 6 shall, at the request of
of the parties and the courts of the
one of the parties
or other interested
Member State whose law has been
persons and
insofar as the courts of
chosen are better placed to rule on
the Member State whose law has
the succession, stay proceedings and been chosen are better placed to rule
invite the parties to seise the courts
on the succession, stay proceedings
in that Member State with the
and invite the parties to seise the
application.
courts in that Member State
or,
where appropriate, its competent
entities within the meaning of
Article 37 with the application.
2. The competent court in
2. The competent court
seised in
(deleted)
accordance with Article 4 shall set a accordance with Article 4 shall set a
deadline by which the courts of the
deadline by which the courts of the
Member State whose law has been
Member State whose law has been
chosen must be seised in accordance chosen must be seised in accordance
with paragraph 1. If the courts are
with paragraph 1. If the courts are
not seised by that deadline, the court not seised by that deadline, the court
seised shall continue to exercise its
seised
in accordance with Article 4
jurisdiction.
shall continue to exercise its
11
It will be indicated in a recital that the terms "the succession as a whole" covers all property forming part of the succession, wherever the
assets are located.
30
jurisdiction.
3. The courts of the Member State
3. The courts of the Member State
(deleted)
whose law has been chosen shall
whose law has been chosen shall
declare themselves competent
declare themselves competent within
within a maximum period of
eight
three months from the date on
weeks from the date on which they
which they were seised in
were seised in accordance with
accordance with paragraph 2. In this
paragraph 2. In this case, the court
case, the court seised first shall
seised first shall decline jurisdiction. decline jurisdiction. Otherwise, the
Otherwise, the court seised first
court seised first shall continue to
shall continue to exercise its
exercise its jurisdiction.
jurisdiction.
Article 5a (new)
Choice of court
Choice of court agreement
Notwithstanding Article 5, where
1. Where the law chosen by the
the law of a Member State was
deceased to govern his succession
chosen in accordance with Article
pursuant to Article 17 is the law of
17, the heirs and legatees may
a Member State, the parties
agree that the court or courts of
concerned12 may agree that a
that Member State shall have
court or the courts of the Member
jurisdiction to rule on the
State of the chosen law shall have
succession to the deceased's estate. 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.
Article 5b (new)
Declining jurisdiction
Declining of jurisdiction in the
event of a choice of law
12
It will be indicated in a recital what is to be understood by the "parties concerned" for the purposes of this provision.
31
If the courts of the Member State
on whose territory the deceased had Where the law chosen by the
his or her habitual residence at the deceased to govern his succession
time of death are seised ex officio
pursuant to Article 17 is the law of
of the succession proceedings and
a Member State, the court seised
if the heirs and legatees agree to
pursuant to Articles 4 or 6:
seise the courts of the Member
State whose law was chosen by the
(a) may, at the request of one of
deceased in accordance with Article the parties to the proceedings,
17 or to bring the succession
decline jurisdiction if it considers
proceedings before any other
that the courts of the Member
competent authority in that
State of the chosen law are better
Member State, the courts seised ex
placed to rule on the succession
officio shall decline jurisdiction.
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
5a, to confer jurisdiction on a
court or the courts of the Member
State of the chosen law.
Article 5c
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 17
shall have jurisdiction to rule on
the succession if:
(a) a court previously seised has
declined jurisdiction in the same
case pursuant to Article 5b, or
32
(b) the parties to the proceedings
have agreed, in accordance with
Article 5a, to confer jurisdiction
on a court or the courts of that
Member State, or
(c) the parties to the proceedings
have expressly acknowledged the
jurisdiction of the court seised.
Article 5d
Closing of own motion proceedings in the event of a choice of law
A court seised of its own motion of a succession case under Articles 4
or 6 shall close the proceedings if
the parties to the proceedings 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 17. 13
Article 5e
Jurisdiction based on appearance
1. Where, in the course of
proceedings before a court of a
Member State exercising
jurisdiction pursuant to Article
5c, it appears that not all the
parties to those proceedings were
party to the choice of court
agreement or to the agreement on
amicable settlement, the court
shall continue to exercise
jurisdiction if the parties to the
13
A recital will be inserted to explain the coordination between competent authorities in different Member States.
33
proceedings who were not party to
the agreement in question 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 in question, the
court shall decline jurisdiction.
In that event, jurisdiction to rule
on the succession shall lie with the
courts having jurisdiction
pursuant to Articles 4 or 6.
Article 6
Residual jurisdiction
Subsidiary jurisdiction
Where the habitual residence of the
1. Where the habitual residence of
deceased at the time of death is not
the deceased at the time of death is
located in a Member State, the
not located
in a Member State, the
courts of a Member State shall
courts of a Member State
in which
nevertheless be competent on the
succession assets are located shall
basis of the fact that succession
nevertheless
have jurisdiction to
property is located in that Member
rule on the succession as a whole
State and that:
(…)
in so far as:
(a) the deceased had their previous
(a)
the deceased had the
habitual residence in that Member
nationality of that Member State
State, provided that such residence
at the time of death; or failing that,
did not come to an end more than
five years before the court was
deemed to be seised; or, failing that,
(b) the deceased had the nationality
(b)
the deceased had his previous
of that Member State at the time of
habitual residence in that Member
their death; or, failing that,
State, provided that, at the time
the court is seised, a period of not
34
more than five years has elapsed
since that habitual residence
changed.
(c) an heir or legatee has their
(c)
(…)
habitual residence in the Member
State; or, failing that,
(d) the application relates solely to
(d)
(moved to new paragraph 2)
this property.
1a. In the cases referred to in
points (a) to (c) of the first
paragraph, competence shall cover
the succession as a whole.
2. Where no court in a Member
State has jurisdiction pursuant to
paragraph 1, the courts of the
Member State in which succession
assets are located shall
nevertheless have jurisdiction to
rule on those assets.
Article 6a (new)
Forum necessitatis
Forum necessitatis
Where no court of a Member State
has jurisdiction pursuant to
Where no court of a Member
Articles 4 or 6, the courts of a
State has jurisdiction pursuant to
Member State may, on an
other provisions of this
exceptional basis, rule on the
Regulation, the courts of a
succession if proceedings cannot
Member State may, on an
reasonably be brought or
exceptional basis, rule on the
conducted or would be impossible
succession if proceedings cannot
in a third State with which the case reasonably be brought or
is closely connected.
conducted or would be impossible
The case must have a sufficient
in a third State with which the
connection with the Member State
case is closely connected.
of the court seised.
The case must have a sufficient
connection with the Member State
of the court seised.
35
Article 6b
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 recognised 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.
Article 7
Counterclaim
The court before which proceedings The court before which proceedings
(deleted)
are pending under Article 4
, 5 or 6
are pending under Articles 4
to 6a
shall also be competent
to examine
shall also be competent
as regards
the counterclaim
where this falls
any counterclaim
in so far as it falls
within the scope of this Regulation.
within the scope of this Regulation.
Article 8
Jurisdiction to accept or waive
(…) Acceptance or waiver of the
succession
succession, of a legacy or of a
reserved share
The courts in the Member State of
In addition to the competent court
In addition to the court having
the habitual residence of the heir or
under Article 4, the courts in the
jurisdiction to rule on the
legatee shall also be competent to
Member State of the habitual
succession pursuant to this
receive declarations concerning the
residence of the heir or legatee shall
Regulation, the courts in the
acceptance or waiver of succession
also be competent to receive
Member State of the habitual
or legacy or designed to limit the
declarations concerning the
residence of
any person who,
liability of the heir or legatee where
acceptance or waiver of succession
under the law applicable to the
such declarations must be made
or legacy or designed to limit the
succession, may make a
36
before a court.
liability of the heir or legatee where
declaration before a court (…)
such declarations must be made
concerning the acceptance or the
before a court.
waiver of the succession, of a legacy
or of a reserved share of the estate
or a declaration designed to limit
the liability of the
person
concerned in respect of the
liabilities of the estate shall have
jurisdiction to receive such
declarations where
, under the law
of that Member State, such
declarations
may be made before a
court.14
15
Article 9
Competence of courts in the place in
(…) Measures under property law
which the property is located
Where the law of the Member State
deleted
(deleted)
of the place in which property is
located requires the involvement of
its courts in order to take measures
under substantive law relating to the
transmission of the property, its
recording or transfer in the public
register, the courts of the Member
State shall be competent to take such
measures.
Article 10
Seising of a court
For the purposes of this Chapter, a
For the purposes of this Chapter, a
court shall be deemed to be seised:
court shall be deemed to be seised:
14
It will be indicated in a recital that the courts of the Member State of the habitual residence of the person making the declaration will not
have jurisdiction to receive declarations designed to limit the liability of the person concerned in respect of the liabilities of the estate when
the law applicable to the succession requires a specific procedure to that end before the court or authority dealing with the succession.
15
It will be indicated in a recital that it will be for the persons making the declarations themselves to inform the court or authority dealing
with the succession of the existence of such declarations within any time limit set by the law applicable to the succession.
37
(a) at the time when the document
(a) at the time when the document
instituting the proceedings or an
instituting the proceedings or an
equivalent document is lodged with
equivalent document is lodged with
the court, provided that the applicant
the court, provided that the applicant
has not subsequently failed to take
has not subsequently failed to take
the steps they were required to take
the steps
he was required to take to
to have service effected on the
have service effected on the
defendant, or
defendant, or
(b) if the document has to be served (b) if the document has to be served (b) if the document has to be served
before being lodged with the court,
before being lodged with the court,
before being lodged with the court,
at the time when it is formally
at the time when it is formally drawn at the time when it is
received by
drawn up or registered by the
up or registered by the authority
the authority responsible for service,
authority responsible for service,
responsible for service, provided
provided that the applicant has not
provided that the applicant has not
that the applicant has not
subsequently failed to take the steps
subsequently failed to take the steps subsequently failed to take the steps he was required to take to have the
that they were required to take to
that they were required to take to
document lodged with the court
, or
have the document lodged with the
have the document lodged with the
court
.
court
, or
(ba) if the proceedings are opened
(c) if the proceedings are opened
of the court's own motion, at the
of the court's own motion, at the
time when the court takes the first
time when the decision to open the
procedural step.
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.
Article 11
Examination as to jurisdiction
Where a court of a Member State is
Where a court of a Member State is
Where a court of a Member State is
seised of a case over which it has no seised of a
succession case over
seised of a
matter of succession
jurisdiction under this Regulation, it which it has no jurisdiction under
over which it has no jurisdiction
shall declare of its own motion that
this Regulation, it shall declare of its under this Regulation, it shall
it has no jurisdiction.
own motion that it has no
declare of its own motion that it has
jurisdiction.
no jurisdiction.
Article 12
Examination as to admissibility
1. Where a defendant habitually
1. Where a defendant habitually
38
resident in a Member State other
resident in a
(…) State other than the
than the Member State where the
Member State where the action was
action was brought does not enter an
brought does not enter an
appearance, the court with
appearance, the court
having
jurisdiction shall be responsible for
jurisdiction shall
stay the
staying the proceedings so long as it
proceedings so long as it is not
is not shown that the defendant has
shown that the defendant has been
been able to receive the document
able to receive the document
instituting the proceedings or an
instituting the proceedings or an
equivalent document
equivalent document in time to
arrange for his defence, or that all
necessary steps have been taken to
this end.
2. Article 19 of Regulation (EC) No
2. Article 19 of Regulation (EC) No
1393/2007 of the European
1393/2007 (…) shall apply instead
Parliament and of the Council of 13
of
(…) paragraph 1 if the document
November 2007 on the service in the
instituting the proceedings or an
Member States of judicial and
equivalent document had to be
extrajudicial documents in civil or
transmitted from one Member State
commercial matters shall apply
to another pursuant to that
instead of the provisions of
Regulation.
paragraph 1 of this Article if the
document instituting the
proceedings or an equivalent
document has had to be sent from
one Member State to another
pursuant to that Regulation.
3. Where the provisions of Council
Where
(…) Regulation (EC) No
Regulation (EC) No 1393/2007 are
1393/2007 is not applicable,
not applicable, Article 15 of the
Article 15 of the Hague Convention
Hague Convention of 15 November
of 15 November 1965 on the service
1965 on the service abroad of
abroad of judicial and extrajudicial
judicial and extrajudicial documents
documents in civil or commercial
in civil or commercial matters shall
matters shall apply if the document
apply if the document instituting the
instituting the proceedings or an
proceedings or an equivalent
equivalent document had to be
document has to be sent abroad
transmitted abroad pursuant to that
39
pursuant to that Convention.
Convention.
Article 13
Lis pendens
1. Where proceedings involving the
1. Where proceedings involving the
same cause of action and between
same cause of action and between
the same parties are brought in the
the same parties are brought in the
courts of different Member States,
courts of different Member States,
any court other than the court first
any court other than the court first
seised shall of its own motion stay
seised shall of its own motion stay
its proceedings until such time as the
its proceedings until such time as the
jurisdiction of the court first seised
jurisdiction of the court first seised
is established.
is established.
2. Where the jurisdiction of the
2. Where the jurisdiction of the court
court first seised is established, any
first seised is established, any court
court other than the court first seised
other than the court first seised shall
shall decline jurisdiction in favour
decline jurisdiction in favour of that
of that court.
court.
Article 14
Related actions
1. Where related actions are pending
1. Where related actions are pending
before courts of different Member
in the courts of different Member
States, any court other than the court
States, any court other than the court
first seised may stay its proceedings.
first seised may stay its proceedings.
2. Where these actions are pending
2. Where these actions are pending
at first instance, any court other than
at first instance, any court other than
the court first seised may also, on
the court first seised
may also, on
the application of one of the parties,
the application of one of the parties,
decline jurisdiction if the court first
decline jurisdiction if the court first
seised has jurisdiction over the
seised has jurisdiction over the
actions in question and its law
actions in question and its law
permits the consolidation thereof.
permits the consolidation thereof.
3. For the purposes of this Article,
3. For the purposes of this Article,
actions are deemed to be related
actions are deemed to be related
where they are so closely connected
where they are so closely connected
that it is expedient to hear and
that it is expedient to hear and
determine them together in order to
determine them together to avoid the
40
avoid the risk of irreconcilable
risk of irreconcilable
decisions
judgments resulting from separate
resulting from separate proceedings.
proceedings.
Article 15
Provisional, including protective, measures
Application may be made to the
Application may be made to the
judicial authorities of a Member
courts of a Member State for such
State for such provisional or
provisional,
including protective,
protective measures as may be
measures as may be available under
available under the law of that State,
the law of that State, even if, under
even if, under this Regulation, the
this Regulation, the courts of
courts of another Member State
another Member State have
have jurisdiction as to the substance
jurisdiction as to the substance of
of the matter.
the matter.
Article 16-0
(formerly Article 25)
Universal application
Any law specified by this
Regulation shall be applied
whether or not it is the law of a
Member State.
Article 16
General rule
Unless otherwise provided for in
1. Unless otherwise provided for in
this Regulation, the law applicable
this Regulation, the law applicable
to the succession as a whole shall be
to the succession as a whole16 shall
that of the State in which the
be
the law of the State in which the
deceased had their habitual
deceased had his habitual
residence at the time of their death.
residence17 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
16
On the terms "the succession as a whole", see the footnote to Article 4.
17
On the determination of habitual residence, see the recitals suggested in the footnote to Article 4.
41
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.18
Article 17
Freedom of choice
Choice of law
1 A person may choose as the law to 1. A person may choose as the law
1. A person may choose as the law
govern the succession as a whole the to govern the succession as a whole
to govern
his succession as a whole
law of the State whose nationality
the
internal law of the State
the law of the State whose
they possess.
(excluding its rules of private
nationality he possesses
at the time
international law) the nationality of of making the choice.
which he or she possesses at the
A person possessing multiple
time of making the choice. The
nationalities may choose the law of
choice of law shall also be valid if a any of the States whose nationality
person possesses, at the time of his
he possesses at the time of making
or her death, the nationality of the
the choice.19
State whose law he or she has
chosen.
1a. The choice of law shall also be
valid if a person, at the time of their
death, possesses the nationality of
the State whose law they have
18
Two recitals will be inserted to explain the exceptional nature of this escape clause and provide guidance on its application. Those recitals
will be worded along the following lines:
"In exceptional cases when, 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, the authority dealing with the
succession may 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."
"The manifestly closest connection should 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."
19
It will be indicated in a recital that the determination of the nationality or multiple nationality of a person is a preliminary question to be
resolved before the application of this provision. The issue of considering a person as a national of a State falls outside the scope of the
Regulation and is subject to national law, including, where applicable, international Conventions, in full observance of the general
principles of the European Union.
42
chosen.
2 The
law applicable to the 2. The
choice shall be made in a
2.
(…) The choice of the law
succession must be expressly declaration in the form of a
applicable to the succession shall
determined and included in a disposition of property upon death
be made expressly in a
declaration
declaration in the form of a
or shall be demonstrated by the
in the form of a disposition of
disposition of property upon death.
terms of a disposition of property
property upon death
or be clearly
upon death.
demonstrated by the terms of such
a disposition20.
3 The existence and the validity in
3. The (…)
substantive validity of
substantive terms of the consent to
the
(…) act whereby the choice of
this determination shall be governed
law was made shall be governed by
by the determined law.
the
chosen law.21
4 Modification or revocation by its
4. The modification or the
author of such a determination of
revocation
(…) of
the choice of law
applicable law must meet the
(…)
shall meet the
requirements as
conditions for the modification or
to form for the modification or the
revocation of a disposition of
revocation of a disposition of
property upon death.
property upon death.
Article 18
Agreements as to succession
1 An agreement regarding a person's 1. An agreement regarding a
(moved to Article 19b)
succession shall be governed by the person's succession shall be
law which, under this Regulation, governed by the law which, under
would have been applicable to the this Regulation, would have been
succession of that person
in the applicable to the succession
to the
20
A recital will be inserted to explain by way of examples how an implicit choice may be "clearly demonstrated" by the terms of a disposition
of property upon death so as to obviate, as far as possible, disputes as to whether the deceased had or had not chosen a law in his
disposition of property upon death. One example might be the situation in which the deceased referred expressly in his disposition to
articles of the law of the State of his nationality or otherwise explicitly mentioned that law.
21
It will be explained in a recital that the right of a person to choose the law to govern his succession is established by the Regulation and that
a choice of law will be valid even if the chosen law does not provide for a choice of law in matters of succession. In this context, the chosen
law only determines whether the person making the choice may be considered to have understood and consented to what he was doing
when making the choice.
43
event of their death on the day on estate of that person
if succession
which
the agreement was
had opened at the time when the
concluded.
If, in accordance with agreement was concluded.
this law, the agreement is not valid,
its validity shall nevertheless be
accepted if it is in accordance with
the law which, at the time of death,
is applicable to the succession
under this Regulation. The
agreement shall therefore be
governed by this law.
2. An agreement concerning the
2. An agreement concerning the
(moved to Article 19b)
succession of several persons shall
succession of several persons shall
be
valid in substantive terms only if be
governed by the law which
,
this validity is accepted by the law
under this Regulation, would have
which
, pursuant to Article 16,
been applicable to the succession of
would have
applied to the
all of the persons whose succession
succession of
one of the persons
is involved
if succession had
whose succession is involved
in the opened at the time when the
event of death on the day on which agreement was concluded. If,
the agreement was concluded. If
subsequently, more than one legal
the contract is valid pursuant to the system in accordance with the first
law applicable to the succession of
sentence is applicable to the
only one of those persons, that law
agreement, and an agreement as to
shall apply. Where the contract is
succession is recognised only by
valid pursuant to the law applicable one of those legal systems, the
to the succession of several of these agreement shall be governed
by that
persons, the agreement shall be
law. If the agreement is recognised
governed by the law with which it
by more than one of those legal
has the closest links.
systems, it shall be governed by the
law with which it has the closest
links.
3. The parties may determine as the
3. The parties may determine as the
(moved to Article 19b)
law governing their agreement the
law governing their agreement the
law which
the person or one of the
law which one of the persons whose
persons whose succession is
succession is involved could have
involved could have chosen in
chosen in accordance with Article
44
accordance with Article 17.
17
, provided that that legal system
recognises agreements as to
succession.
4.
The application of the law 4.
The legal system determined in
(moved to Article 19b)
provided for in this Article shall not accordance with paragraphs 1, 2
prejudice the rights of any person and 3 shall relate only to the
who is not party to the agreement material validity of agreements as
and who, in accordance with the to succession, the nature and scope
law determined in Article 16 or 17, of the binding effect thereof,
has an indefeasible interest or interpretation and revocation
another right of which it cannot be thereof and withdrawal from them. deprived by the person whose
succession is involved.
Article 18 a
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 internal law:
(a) of the State where the testator
made it, or
(b) of a State whose nationality the
testator possessed, either at the time
when he made the disposition, or at
the time of death, or
(c) of a State in which the testator
had his domicile, either at the time
when he made the disposition, or at
the time of death, or
(d) of the State in which the testator
had his habitual residence, either at
the time when he made the
disposition, or at the time of death,
45
or
(e) so far as immovable property is
concerned, of the State in which it
is located.
2. Paragraph 1 shall also apply to
dispositions of property upon death
revoking an earlier disposition. The
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 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,
shall be deemed to pertain to
matters of form. The same rule
shall apply to the qualifications
that must be possessed by witnesses
required for the validity of a
disposition of property upon death.
4. For the purposes of this Article,
the permissibility of joint wills and
agreements as to succession shall
be deemed to pertain to matters of
substantive validity.
Article 19
Scope of applicable law
1 The law determined in Chapter
III 1. The law determined in
this
1. The law determined
pursuant to
46
shall govern the succession as a
Chapter shall govern the succession
Article 16 or Article 17 shall
whole, from its opening to the final
as a whole, from its opening to the
govern the succession as a whole22
transfer of the inheritance to the
final transfer of the inheritance to
(…)23.
beneficiaries.
the beneficiaries.
2 This law shall govern in particular:
(a) the causes, time and place of the
(a) the causes, time and place of the
opening of succession;
opening of
the succession;
(b) the
eligibility of the heirs and
(b) the
determination of the heirs
(b) the
determination of the (…)
legatees, including the inheritance
and legatees, including the
beneficiaries24 (…), of
their
rights of the surviving spouse,
inheritance rights of the surviving
respective shares
(…) and of the
determination of the respective
spouse
or partner, determination of
obligations which may be imposed
shares of such persons, the
the respective shares of such
on them by the deceased,
and the
responsibilities imposed on them by persons, the responsibilities imposed
determination of other succession
the deceased,
and the other rights
on them by the deceased, the other
rights (…), including the
governing succession which have
rights governing succession which
succession rights of the surviving
their source in the death;
have their source in the death
, and
spouse or partner;
waivers of succession;
(c) the capacity to inherit;
(d) the particular causes of the
(d) (deleted in the light of Article
incapacity to dispose or receive;
19c)
(e) disinheritance and debarment
(e) disinheritance and
from succession;
disqualification by conduct;
(f) the
transfer of assets and rights
(f) the
transmission to the heirs and
, (f) the
transfer to the heirs and
, as
making up the succession to the
as the case may be, to the legatees
the case may be, to the legatees
of
heirs and legatees, including the
of the assets, rights and obligations, the assets, rights and obligations
conditions and effects of accepting
including the conditions and effects
making up the estate, including the
or waiving the succession or legacy; of accepting or waiving the
conditions and effects of the
22
On the terms "the succession as a whole", see the footnote to Article 4.
23
It will be indicated in a recital that the law determined as the law applicable to the succession governs the succession from the opening of
the succession to the transfer of ownership to the assets forming part of the estate to the beneficiaries.
24
It will be indicated in a recital (for the purposes of the entire Regulation) that no general definition can be given of the term "beneficiaries"
given that it will be for the law applicable to the succession to determine in each case who the beneficiaries are. The term will under most
laws cover heirs and legatees and persons entitled to a reserved share although the legal position of legatees is not the same under all laws.
Under some laws, a specific asset out of the succession is transferred to the legatee directly by operation of law or the legatee receives a
direct share in the succession. Under other laws, the legatee acquires only a claim against the heirs.
47
succession or legacy
, without
acceptance or the waiver of the
prejudice to Article 20a;
succession or a legacy
;
(g) the powers of the heirs, the
(g) the powers of the heirs, the
(g) the powers of the heirs, the
executors of the wills and other
executors of the wills and other
executors of the wills and other
administrators of the
succession, in
administrators of the
estate, in
administrators of the
estate, in
particular the sale of
property and
particular
as regards the sale of
particular
as regards the sale of
the payment of creditors;
assets and the payment of creditors
property and the payment of
and the administration of assets;
creditors
, without prejudice to the
powers referred to in Article 21;
(h) responsibility for the debts under (h)
the liability for the debts under
the succession;
the succession;25
(i) the freely disposable portion, the
(i) the freely disposable portion, the
(i) the
(…) disposable
part of the
reserved portions and the other
reserved portions and the other
estate, the reserved
shares and
restrictions on the freedom to
restrictions on the freedom to
other restrictions
on the disposing
dispose of property upon death,
dispose of property upon death,
of property upon death
as well as
including the allocations deducted
including the allocations deducted
claims which persons close to the
from the succession
by a judicial
from the succession for the benefit
deceased may have against the
authority or another authority for
of the relatives of the deceased,
and estate or the heirs;
the benefit of the relatives of the
waiver of reserved portions;
deceased;
(j) any obligation to restore or
(j) any obligation to restore or
account for gifts and the taking of
account for gifts
, advancements or
them into account when determining
legacies when determining the
the shares of heirs;
shares of
the different beneficiaries
(…);
(k) the validity
, interpretation,
(k) the
material validity
and
(k)
(deleted in the light of Article
amendment and revocation of a
interpretation of a disposition of
19c)
disposition of property upon death,
property upon death
, as well as the
with the exception of its formal
modification and revocation of
validity;
such a disposition, without
prejudice to Articles 18a and 18b,
and
(l)
sharing the inheritance.
(l)
the sharing-out of the
(l) the sharing
-out of the
estate.
25
It will be indicated in a recital that the liability for the debts under the succession includes the specific ranking of the creditors where
provided for in the law applicable to the succession.
48
inheritance
, without prejudice to
Article 20a.
Article 19 a
Capacity to dispose of property
Dispositions of property upon death
upon death
other than agreements as to
succession26
1. The testator shall have the
capacity to dispose of property
1. A disposition of property upon
upon death if he had that capacity
death other than an agreement as
under :
to succession shall be governed
a) the law which would have
with regard to its admissibility
governed the succession to his
and substantive validity27 by the
estate if he had died on the day on
law which, under this Regulation,
which the disposition was made, or would have been applicable to the
b) the law applicable, pursuant to
succession of the person having
this Regulation, to his succession at made the disposition if he had
the time of death.
died on the day on which the
2. Paragraph 1 shall apply mutatis
disposition was made28.
mutandis to the modification and
revocation of a disposition of
2. Notwithstanding paragraph 1, a
property upon death and to
person may choose as the law to
withdrawal from an agreement as
govern his disposition of property
to succession.
upon death with regard to its
admissibility and substantive
validity, the law which the person
having made the disposition could
26
It will be indicated in a recital that the law governing the admissibility and substantive validity of a disposition of property upon death, and
where applicable the binding effects between the parties, under the future Regulation will not prejudice 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.
27
It will be indicated in a recital that the examination of the substantive validity of a disposition of property upon death on the basis of the
elements listed in the Regulation as pertaining to substantive validity may lead to the conclusion that the disposition of property upon
death is without legal existence.
28
It will be indicated in a recital that the law which would have been applicable to the succession of the person making the disposition if he
had died on the day on which the disposition was respectively made or modified or revoked would be either the law of the State of his
habitual residence on that day or, if he had made a choice of law under Article 17, the law of the State of his nationality on that day.
49
have chosen in accordance with
Article 17 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.
Article 19b
(former Article 18)
Agreements as to succession29
1.
An agreement
as to succession
regarding the succession
of one
person shall be governed,
with
regard to 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,
29
See the recital suggested in footnote 1 to Article 19a.
50
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,
with regard to 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 governing their agreement
as to
succession, with regard to 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 17
on the conditions
set out therein.
4.
(…)
Article 19c
Substantive validity of dispositions of property upon death
1. For the purposes of Articles 19a
and 19b the following elements
shall pertain to substantive
validity:
51
(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 disposition of
property upon death under the
law applicable pursuant to
Articles 19a or 19b, a subsequent
change of the law applicable shall
not affect his capacity to modify
or revoke such a disposition.
Article 19d
Formal validity of dispositions of property upon death made in writing
1. A disposition of property upon
death made in writing shall be
52
valid as regards form if its form
complies with the law:
(a) of the State where the
disposition was made or the
agreement as to succession
concluded, or
(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, or
(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
their domicile, either at the time
when the disposition was made or
the agreement concluded, or at the
time of death, or
(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 their habitual
residence, either at the time when
the disposition was made or the
agreement concluded, or at the
time of death, or
(e) as far as immovable property
53
is concerned, of the State in which
the immovable property is located.
The determination of whether or
not the testator or the persons
whose succession is concerned by
the agreement as to succession
had their 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, the
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
54
property upon death.30
Article 20
Validity of the form of the
Validity as to form of a
declaration
acceptance or waiver
concerning acceptance or waiver
Without prejudice to Article 19,
A declaration concerning
(…) A declaration concerning the
acceptance or waiver of the
acceptance or waiver of the
acceptance or the waiver of the
succession or a legacy or a
succession or a legacy or a
succession, of a legacy
or of a
declaration made to limit the
declaration made to limit the
reserved share or a declaration
liability of the heir or legatee shall
liability of the heir or legatee shall
designed to limit the liability of the
also be valid where it meets the
be valid
as to form where it meets
person making the declaration
conditions of the law of the State in the
requirements of the law
shall be valid
as to form where it
which the heir or legatee has their
applicable to the succession or the
meets the
requirements of
:
place of habitual residence.
law of the State in which the heir or
legatee has his habitual residence.
(a) the law
applicable to the
succession pursuant to Articles 16
or 17, or
(b) the law of the State in which the
person making the declaration has
his habitual residence31
.
Article 20a (new)
Property
law
This Regulation shall be without
prejudice to the application of the
provisions of law of a State where
immovable succession property or
succession property recorded in
public registers is located which
relate to the establishment or
transmission of ownership or other
30
It will be indicated in a recital that this provision does not subject the capacity of a minor to make a certain disposition of property upon
death to the law governing the form. It only concerns the rules as regards form which are linked to a personal qualification which may be
that of minority.
31
See the recital suggested in footnote 1 to Article 8.
55
rights in rem in respect of such
succession property, or to the entry
thereof in public registers, in so far
as title is acquired by means of an
act of establishment or of
transmission or by a court
judgment, either alone or in
conjunction with an entry in a
register as well as measures
concerning the entry in the public
registers of the transfer of said
property and the requirements and
effects of this entry.
Article 21
Application of the law of the State in the place in which the property is located
1. The law applicable to the
1. The
application of the law
(…) Special rules for the
succession shall be no obstacle to
applicable to the succession shall be
appointment and powers of
the application of the law of the
no obstacle to the application of the
administrators and executors
State in which
the property is
law of the Member State in which
located where
, for the purposes of
succession property is located where
PM
acceptance or waiver of the
that law:
succession or a legacy, it stipulates
formalities subsequent to those laid
down in the law applicable to the
succession. 2 The law applicable to the
PM
succession shall be no obstacle to
the application of the law of the
Member State in which the
property is located where it:
(a) subjects the administration and
a) subjects the administration and
PM
liquidation of the succession to the
liquidation of the succession
with
appointment of an administrator or
regard to that property to the
executor of the will
via an authority appointment
by an authority located
located in this Member State.
The
in that Member State of an
law applicable to the succession
administrator
of the estate or
an
56
shall govern the determination of
executor of the will. The
authority
the persons, such as the heirs,
appointing the administrator or the
legatees,
executors or
executor shall respect the
administrators of the will, who are
entitlement of persons, such as the
likely to be appointed to administer heirs, legatees,
administrators of the
and liquidate the succession;
estate or executors of the will, to
administer and liquidate the
succession under the law applicable
to the succession;
(b) subjects the final transfer of
the
b) subjects the final transfer of
that
PM
inheritance to the beneficiaries to
property to the beneficiaries to the
the prior payment of taxes relating
prior payment of taxes relating to
to the succession.
the succession.
2) Any administrator or executor
PM
appointed by a local authority
pursuant to paragraph 2 shall be
required to respect the inheritance
rights of the beneficiaries under the
law applicable to the succession.
Article 22
Special succession regimes
Special rules setting restrictions
concerning or affecting the
succession
in respect of certain assets
The law applicable in accordance
Where the law of the State in
with this Regulation shall not
which certain immovable
prejudice the special succession
property, certain enterprises or
regimes to which certain immovable
other special categories of assets
property enterprises, enterprises or
are located contains special rules
other special categories of property
which, for economic, family or
are subjected by the law of the
social considerations, set
Member State in which they are
restrictions concerning or
located on account of their
affecting the succession in respect
57
economic, family or social purpose
of those assets, those special rules
where, according to that law, this
shall apply to the succession in so
regime is applicable irrespective of
far as, under the law of that State,
the law governing the succession.
those rules are applicable
irrespective of the law applicable
to the succession32.
Article 22a
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.33
Article 23
Simultaneous death
Where two or more persons whose
Where two or more persons whose
successions are governed by
successions are governed by
32
It will be explained in a recital that this exception to the application of the law applicable to the succession is to be given a strict
interpretation. Neither conflict of laws rules subjecting immovable property to a law different from that applicable to movable property
nor the provisions providing for a reserved share of the estate greater than that provided for in the law applicable to the succession under
Articles 16 or 17 may be considered as special rules setting restrictions concerning or affecting the succession in respect of certain assets.
33
A recital will be inserted to provide guidance on how to proceed in the case of adaptation (elaborating on the guidance which, to a certain
extent, is already provided in the last part of the suggested new provision). If necessary 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 to
obtain further information on the nature and the effects of the right. In this context, the existing networks in the area of judicial
cooperation in civil and commercial matters should be used as well as any other available means facilitating the understanding of foreign
law.
58
different laws die in circumstances
different laws die in circumstances
which do not allow the order of
in which it is uncertain in what
death to be determined and where
order their deaths occurred, and
the laws deal with the situation
where
those laws provide
through provisions which are
differently for this situation or
incompatible or which do not settle
make no provision
(…) at all, none
it at all, none of the persons shall
of the
deceased persons shall have
have any rights regarding the
any
succession rights to the other or
succession of the other party or
others.
parties.
Article 24
Estate without a claimant
Where, in accordance with the law
To the extent that,
under the law
applicable in accordance with this
applicable
to the succession
Regulation, there is neither an heir
pursuant to this Regulation, there is
nor a legatee as determined by a
no heir or legatee for any assets
disposition of property upon death
under a disposition of property
and where no natural person is an
upon death and no natural person is
heir by operation of law, the
an heir by operation of law, the
application of the law thereby
application of the law so determined
determined shall not be an obstacle
shall not
preclude the right of a
to the right of a Member State or a
State or an entity appointed for
body appointed in accordance with
that purpose by that State to
the law of the Member State in
appropriate under its own law the
question to seize the succession
assets of the estate (…) located on
property located on its territory.
its territory
provided that the
creditors are entitled to seek
satisfaction of their claims out of
the assets of the succession as a
whole.
Article 25
Universal nature
Any law specified by this
(moved to Article 16-0)
Regulation shall apply even if it is
not the law of a Member State.
Article 26
59
Referral
Renvoi
Renvoi
Where this Regulation provides for
Where this Regulation provides for
1. The application of the law of
the application of the law of a State, the application of the law of a State,
any third State specified by this
it means the rules of law in force in
it means the rules of law in force in
Regulation shall mean the
that State other than its rules of
that State other than its rules of
application of the rules of law in
private international law.
private international law
, with the
force in that State including its
exception of rules of private
rules of private international law
international law which refer in
in so far as those rules make a
full or in part to the law of a
renvoi:
Member State.
(a) to the law of a Member State,
or
(b) to the law of another third
State which would apply its own
law.
However, where the law of a third
2. No renvoi shall apply with
State is determined to be the
respect to the laws referred to in
applicable law and that law refers
Article 16(2), Article 17, Article
the court back to the law of a
19d, Article 20(b) and Article 22.
Member State, the latter shall
apply, unless the deceased had
chosen the law of the third State to
be the law governing their
succession in accordance with
Article 17.
Article 27
Public policy
Public policy
(ordre public)
1. The application of a rule of the
The application of a
provision of the The application of a
provision of
law
determined by this Regulation
law
of any State specified by this
the law
of any State specified by
may be refused only if such
Regulation may be refused only if
this Regulation may be refused only
application is incompatible with the
such application is
manifestly
if such application is
manifestly
public policy of the forum.
incompatible with the public policy
incompatible with the public policy
(ordre public) of the forum.
(ordre public) of the forum.
2. In particular, the application of a deleted 2.
(…)
60
rule of the law determined by this
Regulation may not be considered
to be contrary to the public policy
of the forum on the sole ground
that its clauses regarding the
reserved portion of an estate differ
from those in force in the forum.
Article 28
States with more than one legal
States with more than one legal
system
system
- territorial conflicts of
laws
1. Where a State comprises several
1. Where the law specified by this
territorial units each of which has its
Regulation is that of a State which
own rules of law in respect of
comprises several territorial units
succession to the estates of deceased
each of which has its own rules of
persons, each territorial unit shall be
law in respect of succession, the
considered as a State for the purpose
internal conflict of laws rules of
of identifying the law applicable
that State shall determine the
under this Regulation.
relevant territorial unit whose
rules of law shall apply.
2. A Member State within which
2. In the absence of such internal
different territorial units have their
conflict of laws rules:
own rules of law in respect of
successions shall not be required to
(a) any reference to the law of the
apply this Regulation to conflicts of
State referred to in paragraph 1
law arising between such units only.
shall, for 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
61
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 19d, 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.
Article 28a
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
62
of rules applicable to different
categories of persons in respect of
succession, any reference to the
law of such a 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.
Article 28b
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.
Article 29
Recognition of a decision
Recognition (…)
A decision given pursuant to this
1. A decision given
in a Member
Regulation shall be recognised in
State shall be recognised in the
the other Member States without
other Member States without any
any special procedure being
special procedure being required.
required.
Any interested party who raises the
2. Any interested party who raises
recognition of a decision as the
the recognition of a decision as the
principal issue in a dispute may, in
principal issue in a dispute may, in
accordance with the procedures
accordance with the procedure
provided for under Articles 38 to 56
provided for
(…) in Articles
33-1 to
of Regulation (EC) No 44/2001,
33-14, apply for that decision to be
apply for that decision to be
recognised.
recognised.
If the outcome of the proceedings in
3. If the outcome of the proceedings
63
a court of a Member State depends
in a court of a Member State
on the determination of an incidental
depends on the determination of an
question of recognition, that court
incidental question of recognition,
shall have jurisdiction over that
that court shall have jurisdiction
question.
over that question.
Article 30
Grounds of non-recognition
A decision shall not be recognised in
A decision shall not be recognised
the following cases:
(…):
(a) where it was given in default of
(a)
(…) if such recognition is
appearance, such recognition is
manifestly contrary to public policy
manifestly contrary to public policy
(ordre public) in the Member State
in the Member State in which
in which recognition is sought,
(…);
recognition is sought, it being
understood that the public policy
criterion may not be applied to the
rules of jurisdiction;
(b) if the defendant was not served
(b)
where it was given in default of
with the document which instituted
appearance, if the defendant was
the proceedings or with an
not served with the document which
equivalent document in sufficient
instituted the proceedings or with an
time and in such a way as to enable
equivalent document in sufficient
him to arrange for his defence,
time and in such a way as to enable
unless the defendant failed to
him to arrange for his defence,
commence proceedings to challenge
unless the defendant failed to
the decision when it was possible for
commence proceedings to challenge
him to do so;
the decision when it was possible for
him to do so;
(c) if it is irreconcilable with a
(c) if it is irreconcilable with a
decision given in a dispute between
decision given in
proceedings
the same parties in the Member
between the same parties in the
State in which recognition is sought;
Member State in which recognition
is sought;
(d) if it is irreconcilable with an
(d) if it is irreconcilable with an
earlier decision given in another
earlier decision given in another
Member State or in a third State
Member State or in a third State
in
involving the same cause of action
proceedings involving the same
64
and between the same parties,
cause of action and between the
provided that the earlier decision
same parties, provided that the
fulfils the conditions necessary for
earlier decision fulfils the conditions
its recognition in the Member State
necessary for its recognition in the
addressed.
Member State
in which recognition
is sought.
Article 31
No review as to the substance of a
No review as to the substance (…)
decision
Under no circumstances may a
Under no circumstances may a (…)
foreign decision be reviewed as to
decision
given in a Member State
its substance.
be reviewed as to its substance.
Article 32
Stay of proceedings
Staying of recognition proceedings
A court of a Member State in which
A court of a Member State in which
recognition is sought of a decision
the recognition is sought of a
given in another Member State may
decision given in another Member
stay the proceedings if an ordinary
State may
stay the proceedings if an
appeal against the decision has been
ordinary appeal agaist the decision
lodged.
has been lodged
in the Member
State of origin.
Article 33
Enforceability of decisions
Enforceability
(…)
Decisions given in a Member State
Decisions given in a Member State
and enforceable there and legal
and enforceable
in that State (…)
transactions shall be carried out in
shall be
enforceable in the other
the other Member States in
Member States
when, on the
accordance with Articles 38 to 56
application of any interested
and 58 of Regulation (EC) No
party, they have been declared
44/2001.
enforceable there in accordance
with
(…) the procedure provided
for in Articles
33-1 to 33-14.
Article 33a
(mutatis mutandis Brussels I Article 59)
Determination of domicile
To determine whether, for the
purposes of the procedure
65
provided for in Articles 33-1 to
33-14, a party is domiciled in the
Member State of enforcement, the
court seised shall apply the
internal law of that Member State.
Article 33-1
(mutatis mutandis Brussels I Article 39 / 4/2009 Article 27)
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
notified by that Member State to
the Commission in accordance
with Article 46a.
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.
Article 33-2
(mutatis mutandis Brussels I Articles 40, 53 and 54)
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
66
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 to be established in
accordance with the advisory
procedure referred to in Article
48(2), without prejudice to Article
33-3.
Article 33-3
(mutatis mutandis 4/2009 Article 29 / Brussels I Article 55)
Non-production of the attestation
1. If the attestation referred to in
Article 33-2(3)(b) 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.
Article 33-4
(mutatis mutandis Brussels I Article 41 / 4/2009 Article 30)
Declaration of enforceability
The decision shall be declared
enforceable immediately on
completion of the formalities in
Article 33-2 without any review
under Article 30. The party
67
against whom enforcement is
sought shall not at this stage of the
proceedings be entitled to make
any submissions on the
application.
Article 33-5
(mutatis mutandis 4/2009 Article 31 / Brussels I Article 42)
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.
Article 33-6
(mutatis mutandis 4/2009 Article 32 / Brussels I Article 43)
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 notified by the Member
State concerned to the
Commission in accordance with
Article 46a.
3. The appeal shall be dealt with
in accordance with the rules
governing procedure in
contradictory matters.
68
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 12 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 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.
Article 33-7
(mutatis mutandis 4/2009 Article 33 / Brussels I Article 44)
Procedure to contest the decision given on appeal
The decision given on the appeal
may be contested only by the
procedure notified by the Member
State concerned to the
Commission in accordance with
Article 46a.
Article 33-8
(mutatis mutandis Brussels I Article 45)
Refusal or revocation of a declaration of enforceability
The court with which an appeal is lodged under Article 33-6 or
69
Article 33-7 shall refuse or revoke
a declaration of enforceability
only on one of the grounds
specified in Article 30. It shall give
its decision without delay.
Article 33-9
(mutatis mutandis 4/2009 Article 35 / Brussels I Article 46)
Staying of proceedings
The court with which an appeal is lodged under Article 33-6 or
Article 33-7 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.
Article 33-10
(mutatis mutandis 4/2009 Article 36 / Brussels I Article 47)
Provisional, including protective measures
1. When a decision must be
recognised in accordance with this
Section, 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 33-
4 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 33-6(5)
70
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.
Article 33-11
(mutatis mutandis 4/2009 Article 37 / Brussels I Article 48)
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 a decision.
Article 33-12
(mutatis mutandis 4/2009 Article 47 / Brussels I Article 50)
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 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 33-13
71
(mutatis mutandis 4/2009 Article 44(5) / Brussels I Article 51)
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.
Article 33-14
(mutatis mutandis 4/2009 Article 38 / Brussels I Article 52)
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.
Article 34
Recognition of authentic
Acceptance of authentic instruments
Acceptance of authentic
instruments
instruments34
Authentic instruments
formally
Authentic instruments
that fall
1. An authentic instrument (…)
drawn up or registered in a
within the substantive scope of this established in a Member State
Member State shall be recognised
Regulation shall circulate freely in
shall have the same evidentiary
in the other Member States
, except
the Member States
and have the
effects35 in another Member State
where the validity of these
same evidentiary effects as they
as it has in the Member State of
34
A recital will be inserted providing guidance to the authorities if they were to be presented with irreconcilable acts.
35
A recital will be inserted to explain the concept of "evidentiary effects". It will indicate that the determination of the evidentiary effects of
a given authentic instrument in another Member State or of the most comparable effects should be made by reference to the nature and
the scope of the evidentiary effects of the authentic instrument in the Member State of origin. It will therefore depend on the law of the
Member State of origin which evidentiary effects a given authentic instrument will have in another Member State.
72
instruments is contested in
enjoy in their home State provided
origin or the most comparable
accordance with the procedures
that such recognition is not
effects, provided that this is not
provided for in the home Member
manifestly contrary to public policy
manifestly contrary to public policy
State
and provided that such
in the Member State
of
(ordre public) in the Member State
recognition is not contrary to public
enforcement.
concerned.
policy in the Member State
addressed.
The 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 to be established in
accordance with the advisory
procedure referred to in Article
48(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
instrument36 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
36
A recital will be inserted to explain that the "authenticity" of an authentic instrument is an autonomous concept which covers elements
such as the genuineness of the instrument, the formal prerequisites of the instrument, the powers of the notary and the procedure under
which the notary draws up the instrument. It also covers the factual elements recorded in the authentic instrument by the authority, such
as the fact that parties X and Y have appeared before the authority on date Z and that they have made the declarations indicated.
73
legal acts or legal relationships
recorded in an authentic
instrument37 shall be made before
the courts having jurisdiction
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.38
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.
Article 35
Enforceability of authentic instruments
A document which has been
1. (…) An authentic instrument
formally drawn up or registered as
which is enforceable in
the Member
37
A recital will be inserted to explain that the terms "the legal acts or legal relationships recorded in an authentic instrument" should be
interpreted as a reference 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 distribution of the estate, a will or an agreement
as to succession, or another declaration of intent. The legal relationships could be for instance the determination of 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.
38
It will be explained in a recital that an authentic instrument which, as a result of a challenge, is declared invalid will cease to produce any
evidentiary effect.
74
an authentic instrument and is
State
of origin shall be declared
enforceable in one Member State
enforceable in another Member
shall be declared enforceable in
State on
the application
of any
another Member State, on
interested party in accordance with
application made in accordance with
the procedure provided for in
(…)
the procedures provided for in
Articles
33-1 to 33-14.
Articles 38 to 57 of Regulation (EC)
1a. For the purposes of Article 33-
No 44/2001. The court with which
2(3)(b) the authority having
an appeal is lodged in accordance
established the authentic
with Articles 43 and 44 of this
instrument shall, on the
Regulation shall refuse or revoke a
application of any interested
declaration of the enforceability if
party, issue an attestation using
enforceability only of the authentic
the form to be established in
instrument is manifestly contrary to
accordance with the advisory
public policy in the Member State
procedure referred to in Article
addressed or if contestation of the
48(2).
validity of the instrument is pending
2. The court with which an appeal is
before a court of the home Member
lodged
(…) under Article 33-6 or
State of the authentic instrument.
Article 33-7 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 (…).
Article 35a
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 33-1 to 33-14.
2. For the purposes of Article 33-
2(3)(b) the court which approved
the settlement or before which it
75
was concluded shall, on the
application of any interested
party, issue an attestation using
the form to be established in
accordance with the advisory
procedure referred to in Article
48(2).
3. The court with which an appeal
is lodged under Article 33-6 or
Article 33-7 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.
Article 36
Creation of a European Certificate of Succession
1. This Regulation introduces a
1. This Regulation introduces
, for
1. This Regulation
creates a
European Certificate of Succession
,
cross-border purposes, a European
European Certificate of Succession
which shall constitute proof of the
Certificate of Succession
(hereinafter referred to as "the
capacity of heir or legatee and of
(hereinafter referred to as "the
Certificate") which shall be issued
the powers of the executors of wills Certificate"), which shall produce
for use in another Member State
or third-party administrators. This
its effects in all Member States
and shall produce the effects listed
certificate shall be issued by the
under the conditions set out in this
in Article 42.
(…)
competent authority pursuant to
Chapter.
this Chapter
, in accordance with the (The term 'the Certificate' is to be
law applicable to succession
introduced throughout the legislative
pursuant to Chapter III of this
text. Adopting the amendment will
Regulation.
necessitate corresponding changes
throughout.)
2. The use of the European
2 The European Certificate of
2. The use of the Certificate shall
Certificate of Succession shall not
Succession shall be drawn up, at
not be
mandatory.39
39
A recital will be inserted to clarify the meaning of this provision. Such a recital would spell out that the persons entitled to apply for a
Certificate under Article 36a(1) are under no obligation to do so, but are free to use the other instruments available under this Regulation
(decisions, authentic instruments and court settlements). It will also specify that no authority or person before which or whom a
76
be obligatory. The certificate shall
the request of the persons
not be a substitute for internal
concerned, in cases with a cross
procedures. However, the effects of border element, with a view to its
the certificate shall also be
use in the exercising of inheritance
recognised in the Member State
rights in any of the Member States.
whose authorities have issued it in
Where a European Certificate of
accordance with this Chapter.
Succession is issued, it shall be a
substitute for the internal
certificate, and its effects shall also
be recognised in the Member State
whose authorities have issued it in
accordance with this Chapter.
3. The Certificate shall not substitute
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 42 in the
Member State whose authorities
issued it in accordance with this
Chapter.
Article 36a (new)
Purpose of the Certificate
1. The Certificate is for use by heirs 1. The Certificate is for use by
or legatees and executors of wills or heirs and legatees having direct
administrators of the estate who
rights in the succession and
need to prove in another Member
executors of wills or
State their status and/or rights as
administrators of the estate who,
heirs or legatees and/or their
in another Member State, need to
powers as executors of wills or
invoke their status or to exercise
administrators of the estate
respectively their rights as heirs or
respectively.
legatees and/or their powers as
executors of wills or
Certificate issued in another Member State was produced could request that a decision, authentic instrument or court settlement be
produced instead of the Certificate.
77
administrators of the estate.
2. The Certificate may be used, in
2. The Certificate may be used, in
particular, as proof of one or more
particular, to demonstrate one or
of the following specific elements:
more of the following specific
a) the rights of each heir or, as the
elements:
case may be, each legatee
(a) the status and/or the rights of
mentioned in the Certificate and
each heir or, as the case may be,
their respective shares of the estate; each legatee mentioned in the
b) the attribution of a specific asset Certificate and their respective
or specific assets forming part of
shares of the estate;
the estate to the heir(s) or, as the
(b) the attribution of a specific
case may be, the legatee(s)
asset or specific assets forming
mentioned in the Certificate;
part of the estate to the heir(s) or,
c) the powers of the person
as the case may be, the legatee(s)
mentioned in the Certificate to
mentioned in the Certificate (…);
execute the will or administer the
(c) the powers of the person
estate.
mentioned in the Certificate to
execute the will or administer the
estate.
Article 37
Competence to issue the certificate
1. The certificate shall be issued
1. The Certificate shall be issued
1.
(…)
upon application by any person
upon application by any person
with
obliged to provide proof of the
a legitimate interest in providing
capacity of heir or legatee
and of the proof
- in a State other than the
powers of the executors of wills or
State whose competent entity has
third-party administrators.
issued the Certificate in accordance
with this Chapter - of the capacity
of heir or legatee
or of the powers of
the executors of wills or third-party
administrators.
2. The certificate shall be
drawn up
2. The Certificate shall be
issued by 2. The Certificate shall be
issued in
by the
competent court
in the
the court
which is competent
the Member State whose courts
Member State whose courts are
pursuant to the provisions of a
have jurisdiction under Articles 4,
competent pursuant to Articles 4, 5
Member State
or by the competent
5c, 6 or 6a. The issuing authority
and 6.
entity (both hereinafter referred to
shall be:
78
as "the competent entity"). Articles
(a) a court
as defined in Article
4, 5,
6 and 6a shall apply mutatis
2(2), or
mutandis.
(b) another authority which,
under national law, (…) has
competence to deal with matters
of succession. 40
2a. The Member States shall
forward the relevant information
on competent entities to the
Commission with a view to making
it available to the public.
Article 38
Content of the application
Application
for a Certificate
0. The Certificate shall be issued
upon application by any person
referred to in Article 36a(1)
(hereinafter referred to as "the
applicant").
1.
For the purposes of submitting
an application, the applicant may
use the form to be established in
accordance with the advisory
procedure referred to in Article
48(2).
1. Any person applying for the issue 1 Any person applying for the issue
1a. The application shall contain
of a
certificate of succession shall
of a
Certificate shall provide, via the
the information listed below, to
provide, via the form a model of
form a model of which is provided
the extent that such information is
which is provided in Annex I, where in Annex I, where such information
within the applicant's knowledge
such information is in their
is in their possession:
and is necessary to enable the
possession:
issuing authority to certify the
elements which the applicant
wants certified, and shall be
40
It will be indicated in a recital that it will be for the Member States to determine in their internal legislation which authorities will have
competence to issue the Certificate whether courts as defined for the purposes of this Regulation or other authorities with competence in
matters of succession, such as for instance notaries.
The Member States will have to provide the relevant information concerning their issuing authorities in accordance with Article 46a.
79
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
40(1a):
(a) information concerning the
(a) information concerning the
(a)
details concerning the deceased:
deceased: surname, forename(s),
deceased: surname, forename(s),
surname
(if applicable, maiden
sex, civil status, nationality, their
sex, civil status, nationality,
name),
given name(s), sex,
date
identification code (where possible), identification code (where possible),
and place of birth, civil status,
address of
last habitual residence,
address of habitual residence
at time nationality, identification
number
date and place of their death;
of death, date and place of death,
(if applicable), address
at the time
date and place of birth;
of death, date and place of death;
(b) the claimant's details: surname,
(b)
details
concerning the
forename(s), sex, nationality, their
applicant: surname
(if applicable,
identification code (where possible),
maiden name),
given name(s), sex,
address of last place of habitual
date and place of birth, civil
residence and relationship to the
status, nationality, identification
deceased;
number (if applicable), address
(…) and relationship to the
deceased
, if any;
(b1) details concerning the
representative of the applicant, if
any: surname (if applicable,
maiden name),
given name(s),
address and representative
capacity;
(b2) the details of the spouse or
partner of the deceased and, if
applicable, ex-spouse(s) or ex-
partner(s): surname (if applicable,
maiden name),
given name(s),
sex, date and place of birth, civil
80
status, nationality, identification
number (if applicable) and
address;
(b3) the details of other possible
beneficiaries under a disposition
of property upon death and by
operation of law: surname and
given name(s) or organisation
name, identification number (if
applicable) and address;
(b4) the intended purpose of the
Certificate in accordance with
Article 36a;
(b5) the contact details of the
court or other competent
authority which is dealing with or
has dealt with the succession as
such, if applicable;
(c) the elements of fact or law which
(c) the elements
(…) on which the
justify their right to succession
applicant founds, as appropriate,
and/or right to administer and/or
his claimed right to succession
execute the succession. Where they
property as beneficiary and/or
are aware of a disposition of
right to execute the
will of the
property upon death, a copy of the
deceased and/or right to
disposition shall be attached to the
administer the estate of the
application;;
deceased;
(c1) an indication of whether the
deceased had made a disposition of
property upon death
(…);
if neither
the original nor a copy is
appended, indication regarding
the location of the original;
(d) if they are replacing other heirs
(d)
(…)
or legatees and, if so, the proof of
their death or any other event which
has prevented them from making a
claim to the succession;
81
(e) whether the deceased has
(e) whether the deceased has
(e)
an indication of whether the
stipulated a marriage contract; if so, stipulated a marriage
or partnership deceased ha
d entered into a
they must attach a copy of
the
contract; if so, the applicant must
marriage contract
or into a contract
marriage contract;
attach a copy of
that contract;
regarding a relationship which
may have comparable effects to
marriage (…);
if neither the
original nor a copy of the contract
is appended, indication regarding
the location of the original;
(e1) an indication of whether any
of the beneficiaries have made a
declaration concerning the
acceptance or, as appropriate, the
waiver of the succession;
(f) if they are aware that the
(f)
a declaration stating that, to
succession rights are being
the applicant's best knowledge, no
contested.
dispute is pending relating to the
(…) elements to be certified;
(g) any other information which
the applicant deems useful for the
purposes of the issue of the
Certificate.
2 The applicant must prove the
2
Where appropriate, the applicant
2.
(…)
accuracy of the information
must prove the accuracy of the
provided by means of authentic
information provided by means of
instruments. If the documents
authentic instruments. If the
cannot be produced or can be
documents cannot be produced or
produced only with disproportionate can be produced only with
difficulties, other forms of evidence disproportionate difficulties, other
shall be admissible.
forms of evidence shall be
admissible.
3 The competent
court shall take the 3 The competent
entity shall take the 3.
(…)
appropriate measures to guarantee
appropriate measures to guarantee
the veracity of the declarations
the veracity of the declarations
made. Where its domestic law
made. Where
and to the extent its
allows, the court shall request that
domestic law allows, the competent
such declarations are made on oath.
entity shall require that such
82
declarations be made on oath
or by a
statutory declaration in lieu of an
oath. To that end it may call upon
the assistance of other bodies
which constitute competent entities
under its domestic law.
Article 39
Partial certificate
1 A partial certificate may be
(deleted)
applied for and issued to attest to:
(a) the rights of each heir or legatee,
(deleted)
and their share;
(b) the devolution of a specific item
(deleted)
of property, where this is allowed
under the law applicable to the
succession;
(c) administration of the succession.
(deleted)
Article 40
Issue of the certificate
Examination of the application
1 The
certificate shall be issued only 1 The
Certificate shall be issued
1.
Upon receipt of the application
if the competent
court considers that only if the competent
entity
the issuing authority shall verify
the facts which are presented as the
considers that the facts which are
the information and declarations
grounds for the application are
presented as the grounds for the
and the documents and other
established. The competent
court
application are established. The
means of evidence provided by the
shall issue the
certificate promptly.
competent
entity shall issue the
applicant. It shall carry out the
Certificate promptly.
enquiries necessary for that
verification of its own motion
where this is provided for or
authorised in its own law or invite
the applicant to provide any
further evidence which it deems
necessary.
1a. Where the applicant has been
unable to produce copies of the
relevant documents which satisfy
the conditions necessary to
83
establish their authenticity, the
issuing authority may decide to
accept other forms of evidence.
1b. Where this is provided for in
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.
2 The competent
court shall carry
2 The competent
entity shall carry
2.
(moved to paragraph 1)
out, of its own accord and on the
out, of its own accord and on the
basis of the applicant’s declarations
basis of the applicant’s declarations
and the instruments and other means and the instruments and other means
of proof provided
by them, the
of proof provided by
him or her, the
enquiries necessary to verify the
enquiries necessary to verify the
facts and to search for any further
facts and to search for any further
proof that seems necessary.
proof that seems necessary.
2a. 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 beneficiairies
the opportunity to
invoke their rights.
3 For the purposes of this Chapter,
3 For the purposes of this Chapter,
3. For the purposes of this (…)
the Member States shall grant access the Member States shall grant access
Article,
the competent authority of
to the competent courts in other
to the competent
entities in other
a Member State shall
, upon
Member States, in particular to the
Member States, in particular to the
request, provide (…) the
issuing
civil status registers, to registers
civil status registers, to registers
authority of another Member
recording acts and facts relating to
recording acts and facts relating to
State with information held, in
the succession or to the
matrimonial the succession or to the
property
particular,
in the land registers,
84
regime of the family of the deceased regime of the family of the deceased the civil status registers
and and to the land registers.
and to the land registers.
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.
4 The
issuing court may summon
4 The
competent entity may
4.
(…)
before it any persons involved and
summon before it any persons
any administrators or executors and
involved and any administrators or
make public statements inviting any executors and make public
other beneficiaries to the succession statements inviting any other
to assert their rights.
beneficiaries to the succession to
assert their rights.
Article 40a
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 to be established in
accordance with the advisory
procedure referred to in Article
48(2).
The issuing authority shall not
issue the Certificate in particular:
(a) if the elements to be certified
are being challenged, or
85
(b) if 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.
Article 41
Contents of the certificate
1 The European Certificate of
1 The Certificate shall be issued
1. (…)
Succession shall be issued using the using the standard form in Annex II
standard form in Annex II.
and, in accordance with the law of
the competent entity, on the basis of
and in conjunction with the
national document certifying
succession.
2 The European Certificate of
2. The Certificate shall contain the
Succession shall contain the
following information
to the extent
following information:
required for the purpose for
which the Certificate is issued:
(a) the
issuing court, the elements
(a) the
competent entity, the
(a)
the name and address of the
of fact and law for which the
court
elements of fact and law for which
issuing authority;
considers itself to be competent to
the
entity considers itself to be
issue the certificate and the date of
competent to issue the certificate
issue;
and the date of issue;
(a0) the reference number of the
file;
(a1) the elements (…)
on the basis
of which the issuing authority considers itself competent to issue
the Certificate (…);
(a2) the date of issue;
(a3) details concerning the
applicant: surname
(if applicable,
86
maiden name),
given name(s), sex,
date and place of birth, civil
status, nationality, identification
number (if applicable), address and
relationship to the deceased
, if any;
(b) information concerning the
(b) information concerning the
(b)
details concerning the deceased:
deceased: surname, forenames, sex,
deceased: surname, forename(s),
surname
(if applicable, maiden
civil status, nationality, their
sex, civil status, nationality,
name),
given name(s), sex,
date
identification code (where possible), identification code (where possible),
and place of birth, civil status,
address of
last habitual residence,
address of habitual residence
at time nationality, identification
number
date and place of death;
of death, date and place of death,
(if applicable), address (…)
at the
date and place of birth;
time of death, date and place of
death;
(b1) details concerning the
beneficiaries: surname (if
applicable, maiden name), given
name(s) and identification
number (if applicable);
(c) any marriage
contracts stipulated (c) any marriage
or partnership
(c)
information concerning a
by the deceased;
contract stipulated by the deceased; 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;
(d) the law applicable to the
(d) the law applicable to the
succession in accordance with this
succession and the
(…) elements
Regulation and the circumstances in
(…) on the basis of which that law
fact and in law used to determine
has been determined;
that law;
(e) the elements in fact and law
(e)
information as to whether the
giving rise to the rights and/or
succession is intestate or testate
87
powers of heirs, legatees, executors
under a disposition of property
of wills or third-party
upon death, including information
administrators: legal succession
concerning the elements (…)
and/or succession according to the
giving rise to the rights and/or
will and/or arising out of agreements
powers of the heirs, legatees,
as to succession;
executors of wills or administrators
of the estate;
(f) the applicant's details: surname,
(f)
(…)
forename(s), sex, nationality, their
identification code (where possible),
address and relationship to the
deceased;
(g) where applicable, information in (g)
if applicable, information in
respect of each heir concerning the
respect of each
beneficiary
nature of the acceptance of the
concerning the nature of the
succession;
acceptance
or the waiver of the
succession;
(h) where there are several heirs, the (h) where there are several heirs, the (h) (…) the share for each heir and,
share for each of them and
, if
share for each of them and the list of if applicable, the list of rights
applicable, the list of rights and
rights and assets for any given heir;
and/or assets for any given heir;
assets for any given heir;
(i) the list of
assets or rights for
(i) the list of
property items for
(i) the list of rights
and/or assets for
legatees in accordance with the law
legatees in accordance with the law
any given legatee;
applicable to the succession;
applicable to the succession;
(j) the restrictions on the rights of
(j) the restrictions on the rights of
the heir in accordance with the law
the heir
(s) and, as appropriate,
applicable to the succession in
legatee(s) under the law applicable
accordance with Chapter III and/or
to the succession and/or
under (…)
in accordance with the provisions
the
disposition of property upon
contained in the will or agreement as
death;
to succession;
(k) the list of acts that the heir,
(k)
the
powers of the executor of
legatee, executor of the will and/or
the will and/or the administrator
of
administrator may perform on the
the estate and the restrictions on
property to the succession pursuant
those powers (…) under the law
to the law applicable to the
applicable to the succession
and/or
88
succession.
under the disposition of property
upon death.
2 a. Information under paragraph
2 need not be provided if, for use of
the Certificate and for the purposes
thereof, it does not appear
necessary to do so and if the
applicant so requests, or if the
applicable law does not provide
accordingly, or if it is not relevant.
2 b. The content of the European
Certificate of Succession referred
to subparagraph 2 shall be
mandatory in nature, but Member
States may for internal purposes
add other elements to that
minimum permissible content in
accordance with national
legislation.
Article 42
The effects of the European
Effects of the Certificate
Certificate of Succession
1 The European Certificate of
1 The Certificate shall be recognised 1. The (…) Certificate shall
Succession shall be recognised
automatically in all the Member
produce its effects in
all Member
automatically in all the Member
States with regard to capacity as
State without any special
States with regard to the capacity of heirs and
- should the applicable
procedure being required.
the heirs, legatees, and powers of the
law so provide - legatees, and
executors of wills or third party
powers of the executors of wills or
administrators.
third-party administrators.
2 The content of the
certificate shall 2 The content of the
Certificate shall 2.
It shall be presumed that the
be presumed to be accurate in all the be presumed to be accurate in all the (…) Certificate
demonstrates
Member States throughout the
Member States throughout the
accurately elements which have
period of its validity. It shall be
period of its validity. It shall be
been established under the law
presumed that the person designated presumed that the person designated
applicable to the succession or
by the
certificate as the heir, legatee, by the
Certificate as the heir,
under any other law applicable to
executor of the will or administrator legatee, executor of the will or
specific elements (…). The person
89
shall hold the right to the
administrator
has the respective
mentioned in the Certificate as the
succession or the powers of
capacity or holds the powers of
heir, legatee, executor of the will or
administration
stated in the
administration
deriving from the
administrator
of the estate shall
be
certificate and that there
shall be no
Certificate or the applicable law
presumed to have the status
conditions or restrictions other than
and that there
are no conditions or
mentioned in the Certificate
those
stated therein.
restrictions other than those
deriving and/or to hold the rights (…) or the
therefrom.
powers (…) stated in the Certificate
with no other conditions
and/or
restrictions
attached to those rights
or powers than those stated in
the
Certificate.41
3 Any person
. shall be released
3 Any person
providing
3. Any person who
, acting on the
from their obligations, unless they
consideration to the beneficiaries
basis of the information certified
know that the contents of the
listed in the certificate shall be
in a Certificate, makes payments
certificate are not accurate.
released from their obligations,
or passes on property to
a person
unless they know that the contents
mentioned in the Certificate
as
of the certificate are not accurate.
authorised to
accept payment or
property (…) shall be
considered
to have transacted with a person
with the authority to accept
payment or property, unless he
knows that the contents of the
Certificate are not accurate
or is
unaware of such inaccuracy due
to gross negligence.42
4 Any person who has acquired
4 Any person who has acquired
4.
Where a person mentioned in
succession property from the
bearer succession property from the
person the Certificate as authorised to
of a certificate who is authorised to who, according to the Certificate,
dispose of succession property
possess the property in accordance
has the relevant authorisation shall
disposes of such property in
41
A recital will be inserted spelling out that the Certificate will not be an enforceable title in its own right but will have evidentiary value.
42
A recital will be inserted to explain paragraphs 3 and 4. That recital will be worded along the lines of paragraph 36 of document 11067/11
JUSTCIV 152 CODEC 968 which reads as follows:
"Any person who, in good faith, acts on the basis of the information certified in the Certificate will be deemed to be released from his
obligations. Similar third party protection will be granted to a person who, in good faith, acquires property from a person designated in the
Certificate as being authorised to dispose of such property, without prejudice to the effects of the recording which will be excluded from the
scope of the future Regulation (see part A, point (iii))."
90
with the list attached to the
be considered
, in accordance with
favour of another person, that
certificate shall be considered to
paragraph 2, to have acquired it
other person shall, if acting on the
have acquired it from a person with
from a person with the authority to
basis of the information certified
the authority to possess the property, possess the property, unless
he or
in the Certificate, be considered to
unless
they know that the contents
she knows that the contents of the
have transacted with a person
of the certificate are not accurate.
certificate are not accurate.
with the 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
5 The certificate shall constitute a
5. The Certificate shall constitute a
valid document allowing for the
basis for the transcription or entry of valid document (…) for the (…)
transcription or entry of the
the inherited acquisition in the
recording of (…)
succession
inherited acquisition in the public
public registers of the Member State
property in the
relevant register of
registers of the Member State in
in which the property is located.
a Member State (…)
, without
which the property is located.
Transcription shall take place in
prejudice to Article 1(3)(j) and
Transcription shall take place in
accordance with the conditions laid
(k).
accordance with the conditions laid
down in the law of the Member
(…)
down in the law of the Member
State in which the register is held
State in which the register is held
and shall produce the effects
and shall produce the effects
specified therein.
specified therein.
Article 42a
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.
1a. The issuing authority shall, for the purposes of Articles 43(3) and
44a(2), keep a list of persons to
91
whom certified copies have been
issued pursuant to paragraph 1.43
2.
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. 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
36a, apply for a prolongation of
the validity period of the certified
copy or request a new
certified copy from the issuing
authority (…).
Article 43
Rectification, suspension or
Rectification, (…) modification or
cancellation of the European
withdrawal of the Certificate
Certificate of Succession
0. 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.
1 The original of the
certificate shall 1 The original of the
Certificate
1. The
issuing authority shall,
at
be retained by the issuing
court,
shall be retained by the issuing
the request of any person
which shall issue one or more
competent entity, which shall issue
demonstrating a legitimate
authentic copies to the applicant or
one or more authentic copies to the
interest or, where this is possible
to any person having a legitimate
applicant or to any person having a
under national law, of its own
interest.
legitimate interest.
motion, (…) modify or withdraw
the Certificate where it has been
established that the Certificate or
43
It will be indicated in a recital that the provisions on the issue of certified copies of the Certificate should not preclude that a Member State, in
accordance with its national rules on public access to documents, may allow copies of the Certificate to be disclosed to members of the public.
92
individual elements thereof are
not accurate.
(a) (….)
(…);
(…)
2 The copies issued shall have the
2 The copies issued shall have the
2. (…)
effects provided for in Article 42 for effects provided for in Article 42 for
a limited period of
three months.
a limited period of
six months.
Once
this period has elapsed,
the
Where justified, the competent
bearers of the certificate or any
entity may lay down a longer
other interested persons must
period. The end of the period
request a new authentic copy
from
during which a copy produces legal
the issuing court in order to assert effects shall be entered on it. Once
their rights to succession.
the period has elapsed, a new
authentic copy
shall be applied for
if necessary.
3 The certificate shall, at the request 3 The certificate shall, at the request
3. The issuing authority shall
of an interested party addressed to
of an interested party addressed to
without delay (…)
inform all
the
issuing court, or spontaneously
the
competent entity, or
persons to whom certified copies
by the
authority in question:
spontaneously by the
competent
of the Certificate have been issued
entity:
pursuant to Article 42a(1) of any
rectification, modification or
withdrawal thereof.
(a) be rectified in the case of
material error;
(b) have a comment entered into its
(b) have a comment entered into its
margin suspending its effects where margin suspending its effects where
it is contested that the
certificate is
it is contested that the
Certificate is
accurate;
accurate;
(c) be cancelled where it is
established that it is not accurate.
4 The issuing court shall note in the
4 The
competent entity shall note in
margin of the original of the
the margin of the original of the
certificate its rectification, the
Certificate its rectification, the
suspension of its effects or its
suspension of its effects or its
93
cancellation and shall notify the
cancellation and shall notify the
applicant(s) thereof.
applicant(s) thereof.
Article 44
Methods of appeal
Redress procedures
Each Member State shall organise
1. (…) Decisions
taken by the
the methods of appeal against the
issuing authority pursuant to
decision to issue or not to issue, to
Article 40a may be challenged by
rectify, to suspend or to cancel a
any person entitled to apply for a
certificate.
Certificate.
Decisions
taken by the issuing
authority pursuant to Article 43
and Article 44a(1)(a) 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 the challenge
referred to in paragraph 1, it is
established that the Certificate
issued is not accurate, the
competent judicial authority shall
modify or withdraw the
Certificate or ensure that the
issuing authority rectifies,
modifies or withdraws the
Certificate.
Article 44a
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
94
demonstrating a legitimate
interest, pending a modification or
withdrawal of the Certificate
pursuant to Article 43, or
(b) the judicial authority, at the
request of any person entitled to
challenge a decision taken by the
issuing authority pursuant to
Article 44, 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 42a(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.
Article 44b
(4/2009 Article 65 / Brussels I Article 56)
Legalisation and other similar formality
No legalisation or other similar
formality shall be required for
documents issued in a Member
State in the context of this
Regulation.
Article 45
Relations with existing international conventions
1 This Regulation shall not affect
1 This Regulation shall not affect
1. This Regulation shall not affect
the application of the bilateral or
the application of the bilateral or
the application of
international (…)
multilateral conventions to which
multilateral conventions to which
conventions to which one or more
one or more Member States are
one or more Member States are
Member States are party at the time
party at the time of adoption of this
party at the time of adoption of this
of adoption of this Regulation and
95
Regulation and which relate to the
Regulation and which relate to the
which (…)
concern matters
subjects covered by this Regulation, subjects covered by this Regulation. covered by this Regulation
(…).
without prejudice to the obligations
of the Member States pursuant to
In particular, the Member States
Article 307 of the Treaty.
which are Contracting Parties to
the Hague Convention of
5 October 1961 on the Conflicts of
Laws to the Form of
Testamentary Dispositions shall
continue to apply the provisions of
that Convention instead of
Article 19d of this Regulation with
regard to the formal validity of
wills and joint wills.
2 Notwithstanding paragraph 1, this
2. Notwithstanding paragraph 1, this
Regulation shall take precedence as
Regulation shall
, as between
between Member States over
Member States, take precedence
conventions which relate to subjects
(…) over conventions (…)
governed by this Regulation and to
concluded exclusively between two
which the Member States are party.
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 November 1934
between Denmark, Finland,
Iceland, Norway and Sweden
comprising international private
law provisions on succession, wills
and estate administration, as
revised by the intergovernmental
agreement between those States of
[date] 201244, by the Member
States which are parties thereto,
44
It will be a precondition for the insertion of this provision giving precedence to the Nordic Convention that the Intergovernmental
agreement revising the Convention is signed before the date of adoption of the Regulation.
96
in so far as it provides for:
(a) rules on the procedural aspects
of estate administration as defined
by the Convention and assistance
in this 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.
Article 45a
Relations 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
proceedings45.
Article 46
Information made available to the public
The Member States shall provide
The Member States shall,
with a
within the framework of the
view to making the information
European Judicial Network in civil
available to the public within the
and commercial matters a
framework of the European Judicial
description of the national
Network in civil and commercial
legislation and procedures relating
matters, provide
the Commission
to the law on succession and the
with a
short summary of their
relevant texts, with a view to their
national legislation and procedures
being made available to the public.
relating to
(…) succession
(…),
They shall notify any subsequent
including information on the type
amendments to these provisions.
of authority which has
competence in matters of
succession and information on the
45
OJ L 160, 30.6.2000, p. 1.
97
type of authority competent to
receive declarations of acceptance
or waiver of the succession, a
legacy or a reserved share under
Article 8.
The Member States shall also
provide fact sheets listing all the
documents or information usually
required for the purposes of
registration of immovable
property located on their
territory.
The
Member States shall
keep the
information updated permanently
(…).
Article 46a
(mutatis mutandis 4/2009 Article 71)
Information on contact details and procedures
1. By […]46, 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 33-1(1) and with appeals
against decisions on such
applications in accordance with
Article 33-6(2);
(b) the redress procedures
referred to in Article 33-7;
(c) the relevant information
regarding the authorities
competent to issue the Certificate
46
9 months before the date of application of the Regulation.
98
pursuant to Article 37; and
(d) the redress procedures
referred to in Article 44.
The Member States shall apprise
the Commission of any subsequent
changes to this information.
2. The Commission shall publish
the information communicated in
accordance with paragraph 1 in
the Official Journal of the
European Union, with the
exception of the addresses and
other contact details of the courts
and authorities referred to in
point (a).
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.
Article 47
Amendments to the forms
Establishment and subsequent
amendment of the list referred to
in Article 2(2)
Any amendment to the forms
The Commission may adopt
1. The Commission shall, on the
referred to in Articles
38 and 41
implementing acts giving effect to
basis of the notifications by the
shall be adopted in accordance with
any amendment to the forms
Member States, establish the list
the
consultative procedure
set out in referred to in Articles
38(1) and 41
.
of other authorities and legal
Article 48(2).
Those implementing acts shall be
professionals referred to in Article
adopted in accordance with the
2(2).
advisory procedure referred to in
Article 48(2).
99
2. The Member States shall notify the Commission of any subsequent
amendments to 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 communicated 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.
Article 47a
Establishment and subsequent amendment of the attestations and the forms referred to in Articles 33-2, 34, 35, 35a, 38 and 40a
The Commission shall adopt
implementing acts establishing
and subsequently amending the attestations and forms
referred to
in Articles 33-2, 34, 35, 35a, 38
and 40a. Those implementing acts shall be adopted in accordance with
the
advisory procedure
referred to in Article 48(2).
Article 48
Committee procedure
1 The Commission shall be assisted
1 The Commission shall be assisted
1. The Commission shall be assisted
by the committee established by
by the committee established by
by a committee
(…). That
Article 75 of Regulation (EC) No
Article 75 of Regulation (EC) No
committee shall be a committee
44/2001.
44/2001.
That committee shall be a within the meaning of Regulation
committee within the meaning of
(EU) No 182/2011.
Regulation (EU) No …/2011.
100
2 Where reference is made to this
2 Where reference is made to this
2.
Where reference is made to this
paragraph
, Articles 3 and 7 of
paragraph, Article 4 of Regulation
paragraph, Article 4 of Regulation
Decision 1999/468/EC shall apply,
(EU) No …/2011 shall apply.
(EU) No 182/2011 shall apply (…).
having regard to the provisions of
Article 8 thereof.
Article 49
Review clause
Review
By […] at the latest, the
By
[…]47 at the latest the
Commission shall submit to the
Commission shall submit to the
European Parliament, the Council
European Parliament, the Council
and the European Economic and
and the European Economic and
Social Committee a report on the
Social Committee a report on the
application of this Regulation. The
application of this Regulation,
report shall be accompanied, where
including an evaluation of any
appropriate, by proposed
practical problems encountered in
amendments.
relation to parallel out of court
settlements of succession cases in
different Member States or an out
of court settlement in one Member
State carried out in parallel with a
settlement before a judicial
authority in another Member
State. The report shall be
accompanied, where appropriate, by
proposals for amendments.
Article 50
Transitional provisions
1 This Regulation shall apply to the
1. This Regulation shall apply to the
successions of persons deceased
succession of persons deceased
on
after its date of application.
or after its date of application
2 Where the deceased had
2 Where the deceased had
2. Where the deceased had
chosen
determined the law applicable to
determined the law applicable to his the law applicable to
his succession
their succession prior to the date of
or her succession prior to the date of prior to the date of application of
application of this Regulation, this
application of this Regulation,
this Regulation, that
choice shall be
determination shall be considered to
including the period prior to entry
(…) valid
if it meets the conditions
47
10 years after the date of application of the Regulation.
101
be valid
provided that it meets the
into force, this determination shall
laid down in (…) Chapter III or if
conditions listed in Article 17.
be considered to be valid
whether or it was valid in application of the
not it meets the conditions listed in
rules of private international law
Article 17.
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 Where the parties to an agreement 3 Where the parties to an agreement 3. (…)
as to succession had determined the
as to succession had determined the
law applicable to that agreement
law applicable to that agreement
prior to the date of application of
prior to the date of application of
this Regulation, this determination
this Regulation,
including the
shall be considered to be valid
period prior to entry into force, this
provided that it meets the conditions determination shall be considered to
listed in Article 18.
be valid
whether or not it meets the
conditions listed in Article 18.
3a A choice of law made prior to
the date of application of this
Regulation, including the period
prior to entry into force, shall
remain valid in the Member States
in which it was valid at the time
when it was made.
3b An invalid disposition of
property upon death made prior to
the date of application of this
Regulation, including the period
prior to entry into force, shall
become valid if it is valid pursuant
to this Regulation.
3c If a disposition of property upon
death was made prior to the date of
application of this Regulation,
including the period prior to entry
into force, in accordance with the
102
law of a State which the deceased
could have chosen under Article 17
of this Regulation, that law shall be
deemed to have been so determined.
3d The applicability of this
Regulation shall not invalidate a
disposition of property upon death
which would have been valid if
succession had opened at the time
when the disposition was made.
Validity shall be determined under
the law, including international
private law, which would have been
applicable at that time.
4. A disposition of property upon
death made prior to the date of
application of this Regulation
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 was
admissible and valid in
substantive terms and as regards
form in application of the rules of
private international law 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.
Article 51
Entry into force
This Regulation shall enter into
This Regulation shall enter into
force on the twentieth day following
force on the twentieth day following
its publication in the Official Journal
its publication in the
Official
of the European Union.
Journal of the European Union.
103
This Regulation shall apply from
It shall apply from
[…]48, except
[one year after the date of its entry
for Articles 46 and 46a which shall
into force].
apply from […]49 and Articles 47,
47a and 48 which shall apply from
[…]50
This Regulation shall be binding in
This Regulation shall be binding in
its entirety and directly applicable in
its entirety and directly applicable in
all the Member States in accordance
all the Member States in accordance
with the Treaty establishing the
with the
(…) Treaties.
European Community.
48
36 months after the date of entry into force of the Regulation.
49
9 months before the date of application of the Regulation.
50
The day following the date of adoption of the Regulation.
104
