EU SUCCESSION REGULATION No 650/2012

Regulation No 650/2012 of 4 July 2012 on succession

H. Pamboukis

with the assistance of Dr. A.-P. Sivitanidis

under the succession (Article 23), under the authority of a single court and pursuant

to a single law.

Exceptions to the principle of unity (of one law, here) may arise out of the applica-

tion of special rules to dispositions of property upon death and to agreements as to

succession (Articles 24-27), as well as to certain other matters, such as the form of a

declaration concerning acceptance (Article 28), rights in rem (Article 31), commo-

rientes (Article 32 establishing a substantive rule of private international law) and

estates without a claimant (Article 33). Renvoi (Article 34), which provides for the

application of a different law on the basis of different connecting factors of the laws

of the renvoi destination, be it of a Member State or of a third State, can also be con-

sidered an exception. In my view,

introducing a renvoi mechanism was not neces-

sary

and only adds to the complexity of the Regulation, which constitutes, as already

mentioned, a disadvantage thereof. Another general exception is, of course, the res-

ervation of public policy (Article 35) and the application of mandatory rules (Article

30),

but only those regulating immovable property or other special categories of as-

sets, i.e. mainly mandatory rules of the lex rei sitae.

2. The concurrence of jurisdiction (forum) and applicable law (jus)

rules

The drafters of the Regulation (as explicitly stated in recital 27 of the Preamble)

have indeed aimed at ensuring that the authority dealing with application of the Reg-

ulation shall, in most situations, be applying its own law, the law of the forum. This

shall be achieved on the basis of a twofold use of habitual residence, both as a juris-

dictional basis and as a connecting factor as to applicable law. Therefore, the author-

ity of habitual residence shall apply the law of the place of habitual residence and

this shall be the most usual case. This choice, inspired by the –now old– Gleichlauff

theory, is a right one, especially in the field of succession, where procedural rules

correlate tightly with substantive ones in multiple aspects thereof, such as the admin-

istration or the winding-up of the estate.

7. The renvoi mechanism has ultimately been intensively challenged, especially when it comes to

integration of private international law at EU level, see Schack H., ‘Was bleibt von Renvoi?’,

IPRax

2013, 315-319. However, the renvoi mechanism has blossomed anew in the international scien-

tific debate; see Agostini E., ‘Le méchanisme du renvoi’,

Rev. crit.

2013, 545-586.

8. Indeed, the Commission had not included renvoi in its initial proposal; it was subsequently added

following criticism by

Max Planck

(

RabelsZ

2010, 656), as well as the Riley judgment of the French

Cour de Cassation (Cour de cassation, 1.2.2009,

Rev.crit.

2009.512, note Ancel,

JDI

2009.567,

note Perroz,

2009.1658 note Lardeux), which accepts and applies the renvoi mechanism only

where it leads to a single law for the entire succession (principle of unity), see Vassilakakis, op.

cit., p. 389.

9. Likewise, with an unfortunate heading.