European Law of Succession: The Institute’s Comments on the European Commission Proposal
31.03.2010
The holiday apartment on the Costa del Sol, the London bank account, the shares in a Polish subsidiary – which rules should apply to these assets when their owner passes away and they are left to the next generation? What happens to the domestic wealth of foreign citizens in Germany? The range of different inheritance laws makes cross-border inheritances significantly more complicated for European citizens. The freedom of the deceased to distribute property through a will or testament differs from country to country. The rights which can be claimed by a surviving spouse are different, as are the inheritance of children and other heirs. There is no uniformity in the form last will and testament may take, nor is it possible for heirs to demonstrate their rights through a certificate of inheritance. The opening of borders across the Union, the increase in private wealth since the Second World War and the aging of the European population has made combating the problems of cross-border inheritances a pressing issue.For this reason, the harmonisation of international succession law has been on the European legislative agenda since the Vienna Action Plan of 1998. Already the Green Paper on succession and wills released in 2005 recognised a clear need to address the matter of cross-border inheritances within the internal market.
After significant preliminary work and consultations, the Commission released an ambitious proposal for a European Succession Regulation in October 2009. This proposal addresses more than just the traditional issues of international succession law such as the questions relating to choice of law, jurisdiction of the courts and the recognition and enforcement of foreign judgements in succession matters. The Commission also proposes provisions for the administration of estates and the introduction of a European Certificate of Inheritance which would be recognised in all Member States. The Commission’s proposal marks a further important step along the road to a modern and coherent codification of international private law in the European Union, that indirectly sketches out the model of a European private law which retains the cultural diversity of the Union while protecting the rights of its citizens.
A working group from the Institute, under the leadership of Jürgen Basedow and Anatol Dutta met regularly between October 2009 and March 2010 to discuss the Commission’s proposals in intensive detail. The resultant comments from the Max Planck Institute submitted many suggested changes aimed at improving the practicability of the proposed provisions and their acceptance in all Member States. The Institute welcomed the Commission’s initiative, and expressed a desire for a broadening of the scope of the proposal and a strengthening of private autonomy. The response, including a comparison between the original Commission Proposal and the amendments suggested by the Institute in English are available electronically. They will also be published in Issue no. 3 (2010) of the Rabels Zeitschrift für ausländisches und internationales Privatrecht.
The comments on the proposed Succession Regulation follows the tradition practice established by other Institute responses to European legislative projects in private international law, such as the Comments on the Rome I Regulation on the law applicable in contractual matters and the Rome II Regulation on the law applicable to non-contractual debt.
MPI Comments on the Succession Proposal
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