Brussels, 14/10/2009 (Agence Europe) - On Wednesday 14 October, the European Commissioner for Justice, Jacques Barrot, supported a proposal to simplify international successions within the European Union, providing, amongst other things, for the creation of a European Certificate of Succession (see our previous bulletin EUROPE 9997). "This proposal is simple because it provides for the application of a single criterion to determine both the competence of the authorities and the law applicable by default to an international succession: that of the usual residence of the deceased person", said Mr Barrot (our translation).
The proposed regulation provides that a succession will be governed by a single law. In default situation is, the applicable law will be that of the final usual residence of the deceased person. If he or she chooses, however, the person making the will can choose to apply the law of succession of the State of which he or she holds the nationality to of the succession. The Commissioner took pains to deflect likely criticism from certain Member States, explaining that the proposal would be examined by a qualified majority of the Member States and in co-decision with the European Parliament. "This is about devolution of property and the law of succession does not come under the family law. There is no veto", he clarified. The Commission takes the view that the material issues are paramount in a succession. It also has other, more practical, reasons. For family law issues, unanimity is required within the Council of Ministers, which makes the decision-making more complicated by the right of veto held by each Member State. By way of example, it is this same right of veto which has held the proposal on cross-border divorces (Rome III) at a standstill for nearly 3 years. The Commissioner went on to reiterate that his latest proposal would "fully" respect the principle of subsidiarity. "It will not call substantive law into question", he said, adding that "no modifications" have been brought in between the countries which observe a hereditary reserve (countries with a Latin-based legal system) and those which do not (England, Wales). Mr Barrot acknowledged that the main connecting factor, the last usual residence of the deceased person, was favoured over the Anglo-Saxon notion of "domicile" which, he explained, refers to the nationality of origin. As the draft regulation does not define the notion of usual residence, the Commissioner went on, it will be up to the national magistrates to weigh up this notion on a case-by-case basis under the control of the Court of Justice. Will the regulation encourage people to move to a particular country in order to benefit from more flexible succession laws, for example French people going to live in Belgium? "It is true that people will be able to choose between French and Belgian law", Mr Barrot acknowledged, also stating that the tax law of the Member States would be unaffected. "Without speaking of harmonisation, we will certainly be obliged to reach a number of convergences over tax issues, even though there must be unanimity in this field", added Mr Barrot, who concluded: "the more cross-border successions there are, the greater the movement towards taxation convergence there will be". (B.C./trans.fl)