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Introductory Remarks
5
H. Pamboukis
with the assistance of Dr. A.-P. Sivitanidis
whole, but only when the assets of the estate are located therein, and the deceased ei-
ther was a national of that Member State at the time of death or had his previous ha-
bitual residence in that Member State, provided as well that no more than five years
have elapsed since that habitual residence changed (Article 10(1)).
The principle of unity which fully applies in case of intra-community relations
gives way before the objective of coordination of legal orders in extra-community
relations. In these cases the Regulation (Article 10(2)) establishes no general juris-
diction, but merely a special one, covering solely the assets located in the territory of
that Member State.
By application of the principle of procedural proximity and of the anglosaxon the-
ory of forum non conveniens, under Article 12, the courts of a Member State, even
where general jurisdiction is established pursuant to Article 4 or Article 10(1), may,
at the request of one of the parties, decide not to rule, if they deem (at their discre-
tion) that their decision will not be recognised and will not be declared enforceable
in that third State where the assets of the estate are located.
As a consequence, in those cases and under the influence of the territoriality prin-
ciple, the principle of unity partly gives way to the division,
6
by way of exception, for
those assets of the estate located in a third State.
The doctrine of unity is also adopted with regard to conflict of laws. In principle,
the law applicable to the succession as a whole is, pursuant to Article 21(1), the law
of habitual residence of the deceased at the time of death. This law governs the estate
as a whole regardless of its location. But the theory of proximity exceptionally makes
its presence felt in Article 21(2), which introduces an exemption or escape clause,
pursuant to which the court may override the law of habitual residence if it finds that
the case is manifestly more closely connected with a different legal order. Exceptions
from the application of the law of habitual residence of the deceased also include the
novelty of Article 22(1), which enables a limited choice of law with respect to the
law of nationality of the deceased (such as the Greek system under Article 28 GrCC)
–professio juris– which shall also govern the succession as a whole. Division or parti-
tion (dépeçage) of the applicable law by choosing different laws as to different parts
of the succession is not allowed (in contrast to what is provided for contracts under
the Rome I Regulation). This is also a correct choice, because a different provision
would possibly lead to impermissible solutions, since succession relations are not
suitable for dépeçage. Thus, in principle, the doctrine of unity places the succession
as a whole, from the opening of the succession to the transfer of ownership of the as-
sets of the estate, the administration of the estate, as well as the liability for the debts
6. See on this principles in detail Vassilakakis E.,
The Testamentary Succession in Private International
Law
(Sakkoulas, Thessaloniki 1994; in Greek), passim, and in short, Vrellis Sp.,
Private Interna-
tional Law
(3rd edn, Nomiki Bibliothiki 2008; in Greek), p. 342.
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