The EU's Regulation on Succession - European Union Committee Contents

CHAPTER 3: The Commission's General Approach

46.  The area is so complicated as to bring into question whether EU legislation could succeed at all. Jonathan Faull argued that the complexity of the subject matter and the problems it causes make EU legislation necessary (Q 99). Richard Frimston thought that it could succeed (Q 52), although he suggested that any future Regulation should only deal with the applicable law (Q 83). Professor Matthews suggested dealing with the issues one at a time, starting with the applicable law question, and considered that legislation covering a limited range of matters such as the applicable law was attainable with goodwill (Q 40-41).

47.  The Commission is not proposing that the substantive law of succession across the Member States should be harmonised, for example by laying down a single EU rule determining who is entitled to what property of the deceased. None of our witnesses suggested that it should. Jonathan Faull described the underlying principle behind the Commission proposal as being to ensure that one legal system was applicable to any individual cross-border succession and that a person making a will should be able to choose, within limits, the applicable law. He also indicated that the Commission was searching for legislation which would be understandable to the general public (Q 103).

48.  This approach would, in principle, allow each Member State to retain its own law of succession. The proposal would replace the private international law rules of the Member States and not significantly change the substantive internal domestic rules contained in the laws of the Member States.

49.  But even this limited approach would have a significant impact in practice in those cases where the law presently applied to a succession would change. For example, if that change is from a law which does not include forced inheritance to one which does, the testator's wishes as to who should be entitled to what property might not be fulfilled. There could also be significant effects on how the succession was administered.

50.  The Commission proposal extends beyond providing a single rule for determining the law to be applied to a cross-border succession. It deals with jurisdiction, recognition and enforcement of judgments, and seeks to make authentic instruments produced by notaries readily recognisable and enforceable. It also seeks to introduce a European Certificate of Succession (the "ECS"), which would be a standard form, produced by a court or other public authority in a Member State, which would certify, with supporting reasons where relevant, the details of some or all of the following: the identity of the deceased, who is empowered to administer the succession, who is entitled to claim what part of the estate, and whether there is any known dispute. The Commission proposes that an ECS would be recognised and have effect throughout the EU. We deal with the ECS in Chapter 6.

51.  Mr Faull nevertheless considered that the Commission had been reasonably modest and circumspect in dealing with the set of issues that arise (Q 99). He thought the proposal, if adopted, would solve some, but not all, of the problems and predicted that once everyone was used to having European law in this area some of the remaining problems might prove easier to address in due course (Q 124).

52.  He appreciated the concern about EU legislation having unforeseen consequences but indicated that the Commission had spent a long time trying to foresee them (Q 109). He considered that limiting the approach to the issue of the applicable law would have made for an inadequate proposal which would have left the debate in the legislature a little devoid of content. Many other issues would arise for discussion before the Council and the European Parliament which a limited proposal would not address. He concluded "We will see in the process of legislation precisely where the scope ends up, but we thought in order to start the legislative process it was a service to the legislative institutions of the Union that we set our ambitions a little higher" (Q 102).

53.  We strongly agree with the Commission that it is not appropriate to harmonise the substantive law of succession across the Member States. We also agree that this is an area for a step by step approach to legislation. However, it would have been preferable for the first proposal in this field to have focussed on the issue of the law that should apply to a cross-border succession (the applicable law).

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