CHAPTER 3: The Commission's General
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"
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).