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Introductory Remarks
9
H. Pamboukis
with the assistance of Dr. A.-P. Sivitanidis
59) and enforceability (Article 60) in the legal order of origin (and in case there are
many types, the one which is functionally closest) and in the receiving legal order.
Naturally, the establishment of a European Certificate of Succession (Articles 62 et
seq) also constitutes a measure of coordination of legal orders.
Lastly, though in an incomplete manner, the need for coordination of legal orders
in the field of conflict of laws
15
also appears in relations with third States, since the
Regulation, in certain cases such as the case of renvoi, refers to the rules of the place
of last habitual residence of the de cujus (an example of this being Article 34(1)).
III. Scope of the EU Succession Regulation
A more extensive analysis of the scope of application can be found hereinbelow.
As an introductory remark, it should be noted that as any Regulation, obviously, it
has direct and supreme effect and applicability over national law provisions (past
and future ones). In practice, this means that from now onwards the main source of
private international law of succession shall be the Regulation, rather than national
provisions (e.g. 28 GrCC, 30 GrCCP, etc.).
It is very important, first of all, that its territorial (geographical) scope be defined.
At this point a systematical distinction should be made: the Regulation does not apply
to all Member States in its entirety (a), and some provisions of the Regulation only
apply to the internal relations of Member States bound by it (b).
(a) The Regulation applies to 25 out of 28 EU Member States. And particularly
to all of them, except Denmark, Ireland and the United Kingdom (although the two
latter were actively involved in its drafting). Naturally, this does not preclude their
–albeit less probable– participation in the future by opting in (opt in technique). Any-
how, currently, application of the Regulation is mandatory for the courts of Member
States (meaning Member States bound thereby).
The non participation of common law countries could be explained on the basis of
a different understanding of organizing succession to the estate. It is perhaps known
that in the law of those countries the succession of the estate does not occur upon
death and directly to the heirs; instead, a set of assets is formed (the
estate
), with a
legal representative (
administrator of the estate
) whose duty is the administration and
winding-up of the estate (meaning their first duty is to wind-up the estate, by com-
plying with the wishes of the deceased on the one hand and paying debts of the estate
on the other hand, and then to distribute the net remaining part among the heirs).
15. Bonomi/Wautelet are right in criticising the Regulation, to the extent that this need for coordi-
nation has not been equally structured in the field of procedural international law, since, on the
one hand, the lis pendens and related actions mechanisms only refer to intra-community rela-
tions (the coordination of extra-community relations being left to the national systems of lis pen-
dens and related actions) and, on the other hand, the jurisdictional discretion offered is rather
vast (as is that of subsidiary jurisdiction under Article 10), despite the possibility of limitation
under Article 12 (see Bonomi/Wautelet,
Le droit européen des successions
, p. 47).
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