EU SUCCESSION REGULATION No 650/2012

Introductory Remarks

H. Pamboukis

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

Exceptionally, nevertheless, the principle of concurrence of forum and jus shall be

disregarded and the court shall have to apply a law that is not its own. This shall hap-

pen in three cases mainly:

i) on the one hand, upon activation of one of the general exceptions mentioned

above (public policy, mandatory rules of the lex rei sitae, special rules, etc.);

ii) on the other hand, usually, when habitual residence of the de cujus was located

in a third State (Article 21(1)) and the authority’s jurisdiction is established under

Article 10(2), i.e. the authority concerned is that of the location of the estate, provid-

ed there is no reason justifying activation of the exemption or escape clause of Article

21(2) or of renvoi (Article 34);

iii) when, on the contrary, the law of nationality has been chosen on the basis of

professio juris of Article 22, although in this case the court of habitual residence may

decline jurisdiction in favour of the chosen law, if it considers it is better placed to

rule pursuant to Article 6 of the Regulation.

3. The principle of predictability for estate planning through freedom

of choice in succession matters

One of the Regulation’s innovative and critical choices has definitely been enabling

estate planning, i.e. predictability as to regulating relations arising after the death of

the deceased and according to his will.

This is mainly achieved by a limited incorporation of professio juris, pursuant to

Article 22, i.e. of the possibility of the deceased to choose the law of his nationality

(at the time of choice or death) as the law governing his succession as a whole. De-

spite the fact that choice is only limited to the law of nationality,

incorporation of

professio juris into the Regulation definitely helps in estate planning.

A favourable treatment of predictability and estate planning is further expressed in

ways beyond professio juris and in other provisions, such as those regulating disposi-

tions of property upon death (Article 24(1) and paragraphs 1 and 2 of Article 25),

by means of which the Regulation attempts to overcome doubts as to the validity of

10. A phobic choice according to Bonomi, who would rather have a broader range of options offered

(Bonomi/Wautelet,

Le droit européen des successions

, p. 45 at para. 43), although it is not sure that

a broader range of options would have better results, on the one hand because infringements

should be controlled in the light of a serious link (connecting factor) between a person or estate

and that law, and on the other hand because this would foster a competition of substantive laws,

each with a view to being chosen over the others, a favourable treatment towards succession

havens. Perhaps the lex rei sitae could be added as yet another choice, but this, too, would cause

difficulties, because international succession would face multiple options and infringement

would not be improbable by means of purchasing real property in a State whose law one would

want to choose as most favourable. The existence of havens in general (with respect to tax, com-

panies, or succession) is reprehensible, because it downgrades the provision and it creates com-

petition based on the easiest regulation rather than the best one. This directly downgrades the

regulatory capacity of States against individuals, with unpleasant consequences.