Brussels, 27/04/2009 (Agence Europe) - On Friday 24 April in Salzburg, at the invitation of Austrian notaries, practitioners academics and political leaders discussed the European Commission's future proposals on authentic acts and acts of inheritance. In this context, the Commission announced that in 2010, it intended to publish a Green Paper on authentic acts. The draft proposal on successions and the creation of a Europe succession certificate may be done in June.
Creation of an authentic European act. The president of the Council of the Notariats of the European Union (CNUE), Bernard Reynis, pointed out that the recognition of authentic acts in Europe is not a “simple theme”. He posed the question of whether it was necessary to, “envisage a Community or sectoral transversal instrument and whether they should get rid of the certificate of enforceability in the knowledge that some governments do not support it”. Dr Walter H. Rechberger, a lecturer at the Institute of Civil Procedural Law at the University of Vienna, said that the response was relatively clear, “in countries of Latin law, the authentic act represents a key to the vaults of preventive justice. However, it is not necessary to adopt a general regulation on the European authentic act…recognition involves a lot of problems of a trivial nature. We do not want a regulation to be introduced to the main body of member states' law”. Nicole Cochet, a member of the French department of justice, took the opposite view and affirmed that the question of recognition did not just arise in “litigation cases” as Dr Rechberger suggested but also in all acts affecting the lives of citizens moving around in Europe. Ms Cochet added that, “we need an instrument that will allow us to work out the likely effects of application in member states”. Dr Gottfried Musger, a counsellor at the Austrian Supreme Court defended the “substitution” mechanism that would allow a Spanish or English act to suffice even if a contract governed by Austrian law is in question”. In this case, it would, nonetheless, be necessary for acts granted by British notaries (public notaries) to be recognised. Michael Lightowler, a public notary and a member of the society of English and Welsh notaries, declared that they had always considered themselves as public officials and said that they also prepared public acts that had the power of enforcement. He affirmed that the Supreme Court considers that authentic acts are admissible proof in court and that there was therefore no justification for limiting citizens' access to a European instrument. For Scandinavian countries, Professor Hans-Heinrich Vogel from the University of Lund, Sweden, said that the idea of a regulation was not without merit, particularly because it would allow the demand for legalisation and recommendatory notes for public foreign acts to be scrapped. This is the solution initially supported by Austrian notaries until they began considering the scrapping of the exequatur. Germany does not support a regulation in this area at all and believes that there are already sufficient bilateral agreements. The Head of the civil justice unit at the European Commission, Salla Saastamoinen, pointed out that the European Commission was in a phase of listening to all the different proposals but the political orientation was going in the direction of abolition of the exequatur in order to fully recognise authentic acts. She announced that the next stage would be the launch of a Green Paper in 2010 on the circulation of authentic acts in the EU.
Support for regulation on inheritance and wills. Dr Klaus Woschnak, the president of the Austrian Council of notaries declared that, “the fragmentation of inheritance in the EU created legal uncertainty. A proposal would therefore be a big step forward”. Mr Reynis said that he intended to send a letter to the European Commissioner, Jacques Barrot, to ask him to submit his draft. The presentation of a draft regulation had been postponed after the British and Irish delegations had displayed misgivings about the principle of “obligatory hereditary reservation” included in the draft text (EUROPE 9874). The Czech minister of justice, Katerina Putnova, affirmed that, “they informed us that the regulation had been adjourned, which is very bad news for us”. We would be very happy if the discussions could begin again soon”. Ms Saastamoinen indicated that the Commission was expected to present the proposal by the end of June, “We will try and do it as soon as possible. We will see if the discussions in Prague (20-21 April conference) will help the commissioner to move forward”. Confronted by some of the speakers' misgivings, Ms Saastamoinen underlined that the potential proposal did not aim to harmonise material law and would not affect taxation. In connection with the creation of a European inheritance certificate, included in the regulation, she explained that such an instrument aimed to attain automatic recognition throughout the EU. A standard formula is expected to be implemented for creating this. Ms Saastamoinen concluded that, “this voluntary certificate will not replace existing certificates and each member state will have to appoint a competent authority, as will the notaries”. B.C./trans/rh