Conflicts of law and party autonomy in European inheritance law
Each year in Europe there are an estimated 450,000 succession cases having an international dimension, comprising a total estate value of approximately 120 billion Euros. According to these statistics, about 10 per cent of all inheritance cases in the EU have an international element. In a doctoral dissertation titled “Die Parteiautonomie im europäischen Erbrecht” [Party Autonomy in European Inheritance Law], Teresa Puig Stoltenberg, former research assistant at the Max Planck Institute for Comparative and International Private Law, explains how the currently applicable Succession Regulation could be expanded to strengthen party autonomy in succession matters encompassing a conflict of laws.
Since 17 August 2015, the law that is applicable to cross-border succession cases is determined according to the European Succession Regulation. Under its provisions, the connecting factor is generally the last habitual residence of the deceased. But also the legal institution of choice of law, or professio iuris, has made its way into the Regulation. Accordingly, the deceased has the discretion to choose as applicable – to the entire succession – the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death.
In her doctoral thesis, Teresa Puig Stoltenberg addresses the topic of party autonomy in European inheritance law not only in terms of the current situation but also as regards the past and, especially, the future. Before analysing the professio iuris as set out in Art. 22 Succession Regulation, including its limits de lege lata, she considers the role of party autonomy prior to the adoption of the Succession Regulation, focusing on a potential choice of law as already permitted in the domestic private international law of European countries.
On this basis, she develops proposals that would further expand choice of law in succession matters de lege ferenda. Puig Stoltenberg argues for an open catalogue of laws that can be chosen from – also in respect of individual assets. In her view, it is only through an expansion of party autonomy that individual freedom and the equivalence of all legal systems can be recognised in a globalized world.
An article (in Spanish) about the doctoral dissertation you find in the journal Informaciones III/2009 of the Asociación Hispano-Alemana de Juristas.