COUNCIL OF
THE EUROPEAN UNION
Brussels, 18 April 2011
B
PU
8078/11
Interinstitutional File:
2009/0157 (COD)
LIMITE
C
LI
JUSTCIV 59
CODEC 480
OUTCOME OF PROCEEDINGS
from :
Working Party on Civil Law Matters (Succession)
on :
21, 22 and 23 March 2011
Subject :
Summary of discussions
1.
Adoption of the agenda
The Working Party adopted the agenda set out in CM 1792/1/11 REV 1.
2.
Proposal for a Regulation of the European Parliament and of the Council on
jurisdiction, applicable law, recognition and enforcement of decisions and authentic
instruments in matters of succession and the creation of a European Certificate of
Succession
The Working Party continued its examination of the proposed Regulation on the basis of the text set
out in document 18096/10 JUSTCIV 238 CODEC 1560 EJUSTICE 139.
Article 21 (Application of the law of the Member State in which succession property is located)
Paragraph 2
The Chair invited the UK delegation to present its drafting proposal set out in doc. 6793/11
JUSTCIV 28 CODEC 267.
8078/11
Conseil UE
DG H 2A
BS/abs
1
LIMITE EN
The UK delegation highlighted the major differences between its new drafting proposal and the text
currently proposed under option 2, stressing that the new proposal allowed for the payment of all
debts, whether or not located in the Member State concerned, in the order of priority determined by
the law applicable to the succession.
Several delegations voiced concern at allowing an exception for local administration like the one
foreseen in Article 21(2) arguing that such exceptions would undermine the objective of one single
succession procedure. Some delegations called for the deletion of Article 21(2).
Some delegations supported the idea of providing for an exception and called for further reflection
on how best to draft the provision using option 2 or the UK proposal as a starting point.
Some delegations stressed in particular the problems linked with the payment of debts given that the
rules on liability for debts varied greatly from one Member State to another. In some Member States
heirs are not liable beyond the value of the estate, in others they are.
Some delegations pointed to the close link with Regulation (EC) No 1346/2000 on Insolvency and
indicated that the provision currently foreseen in Article 45a was insufficient.
Paragraph 3
Delegations voiced support for inserting a provision along the lines of the suggested new
paragraph 3 in Article 21 or possibly for rendering the contents in a recital.
Article 19a (Capacity to dispose of property upon death)
The Commission representative indicated that the Commission could accept inserting a provision on
the capacity to dispose of property upon death although not initially foreseen in the Commission
proposal.
There was wide support for regulating the capacity to testate in the future Regulation.
8078/11
DG H 2A
BS/abs
2
LIMITE EN
One delegation voiced concern about the inclusion of point (b) arguing that this provision could
render invalid a will which was valid when made. Another delegation pointed out that point (b)
would not work for agreements as to succession given that such agreements involved several
persons and not just the testator. For agreements as to succession only the time of drawing up the
agreement should be decisive.
One delegation called for clarification of the relationship between Article 19a and Article 19(2)(d).
With respect to the recital suggested in footnote 3 several delegations voiced support for inserting
such a recital. Some however had doubts about the wording arguing that the effects of a possible
renvoi would have to be taken into account.
Article 20 (Validity as to form of a declaration concerning acceptance or waiver)
Several delegations called for the deletion of the text in square brackets arguing that adding this
extra law would lead to too broad a scope and would affect the link with Article 8.
Two delegations voiced support for retaining the text.
Article 22 (Special succession regimes)
Several delegations called for the deletion of the word "succession" arguing that some of the special
regimes falling under Article 22 did not pertain specifically to succession law but were of a more
general nature, often rules relating to the possession of farm and forest land.
The Commission representative stressed that the provision should be given a strict interpretation
and should not be used to reintroduce scission nor to protect reserved shares. She indicated that
some of the rules listed by the Member States in document 15873/10 JUSTCIV 191 CODEC 1208
seemed not to fall within the scope of Article 22. Some seemed rather to cover public policy
concerns and others covered matters excluded from the scope of the future Regulation (such as
pension plans and insurance contracts).
8078/11
DG H 2A
BS/abs
3
LIMITE EN
On the suggestion made in footnote 4 to use instead "overriding mandatory provisions" this met
with little support. Several delegations voiced concern that such a wording would lead to too broad
an interpretation.
Article 23 (Simultaneous death)
There were no comments on this Article.
Article 24 (Bona vacantia)
The Commission representative spoke in favour of retaining option 1 (the Commission proposal)
arguing that this was the most fair option given that it would put all States in a position to
appropriate assets located on their respective territories.
The Commission representative indicated that the Commission was willing to consider option 2
although it had the drawback of entailing scission.
Some delegations spoke in favour of option 1. More delegations spoke in favour of option 2. A
majority of delegations spoke against option 3.
Article 26 (Exclusion of renvoi)
Several delegations spoke in favour of maintaining the full exclusion of renvoi as currently
foreseen. It was pointed out that it was often difficult to find and interpret the relevant conflict of
laws rules of the law of a third State and that not all States had private international law rules.
Renvoi, if allowed, would therefore never be systematic.
Some delegations pleaded for allowing renvoi in the situation described in footnote 2. It was in
particular pointed out that such a rule would be useful when jurisdiction was exercised on the basis
of the subsidiary grounds in Article 6(a) and (b).
Some delegations indicated that allowing the form of renvoi suggested in the footnote would not
necessarily make it any easier for the court dealing with the succession as it might still end up with
applying foreign law, albeit the law of another Member State.
8078/11
DG H 2A
BS/abs
4
LIMITE EN
A few delegations voiced support for allowing renvoi in full.
Some delegations indicated that they could accept the full exclusion currently foreseen, but were
willing to consider other options.
All delegations agreed that renvoi should in any event be excluded if the deceased had made a
choice of law in favour of the law of the third State in question.
Article 27 (Public order (ordre public))
The Chair drew the attention of delegations to document 18096/10 COR 1 containing the earlier FR
proposal for a redrafting of paragraph 2.
The FR delegation stressed that the protection of the reserved share was of paramount importance
for France. The aim of the FR proposal was to spell out clearly in which situations the reserved
share might constitute a public order exception.
A few delegations voiced support for the FR proposal.
Several delegations called for the deletion of paragraph 2. It was argued that paragraph 1 in itself
was sufficient and that there was no need to focus particularly on the reserved share as a reason for
invoking public policy. Whether or not public policy was to be invoked would have to be assessed
on a case by case basis not on the basis of a general rule. The Commission representative pointed
out that the purpose of paragraph 2 was to avoid a systematic use of the public policy exception
when provisions on reserved shares differed.
One delegation called for a redrafting of paragraph 2 (if the provision were to be maintained) so as
to cover also the protection of family members by other means than a reserved share.
Some delegations called for further discussion on the reserved share and possibly for the insertion
of a specific provision on the issue.
8078/11
DG H 2A
BS/abs
5
LIMITE EN
Article 28 (States with more than one legal system)
The Commission representative pleaded for retaining option 1 (the initial Commission proposal).
She indicated that the Commission could accept the insertion of Article 28a on interpersonal
conflicts of laws which had not been taken into account in the Commission proposal.
The ES delegation indicated that the Rome III solution did not work for Spain in this context and
called for further discussions on the earlier options in document 11637/10 JUSTCIV 129
CODEC 627 so as to allow proper account to be taken of the internal conflict of laws rules of Spain
and of the connecting factor used in Spain in matters of succession ("vecindad civil").
One delegation voiced strong support for the ES position. Several delegations expressed
understanding for the ES concerns and called for more detailed written information on the operation
of the Spanish system.
A number of delegations stressed that it was important for the proper application of the future
Regulation that the conflict of laws rules in relation to States with more than one legal system,
whether Spain or third States, were clearly spelled out in the text.
Several delegations voiced opposition to the taking over of the provisions of the Rome III
Regulation in option 2 arguing that the Rome III solution was inappropriate in a succession context.
All delegations agreed however on the insertion of a provision like Article 28a on interpersonal
conflicts of laws.
One delegation pointed out that Article 28(c) did not work in its current wording and that references
to choice would have to be deleted, if the provision was retained.
Chapter IV
With regard to the title of the Chapter a few delegations called for staying with the wording of
Brussels I, that is "Recognition and enforcement" only. Other delegations welcomed the addition of
"enforceability" and could agree to the deletion of "enforcement". It was pointed out that if the title
of the Chapter was changed a consequential changes would have to be made to the title of the future
Regulation.
8078/11
DG H 2A
BS/abs
6
LIMITE EN
Several delegations called for a return to the structure foreseen in the Commission proposal, that is
a separate Chapter V on authentic instruments.
Articles 29 to 33
One delegation called for a return in all provisions to the wording of the Brussels I Regulation
arguing that the wording of Regulation 4/2009 on maintenance obligations was inappropriate. Other
delegations were happy to see an alignment on Regulation 4/2009.
Some delegations suggested to allow for non-recognition of a decision in Article 29 arguing that a
potential heir who had been left out in the proceedings leading to the decision should be able to
apply for the non-recognition of the decision.
Article 33a (Determination of domicile)
The Chair explained that this new Article had been inserted as a consequence of the earlier decision
of the Working Party not to use "habitual residence" in Chapter IV, but to revert to "domicile" as
used in the Brussels I Regulation.
One delegation called for the deletion of paragraph 2 arguing that the corresponding provision in
Brussels I (Article 59(2)) did not work in the context of recognition and enforcement, only in the
context of jurisdiction. It also called for the deletion of paragraph 2 of Article 33-1.
Articles 33-1 to 33-14
The Commission representative called for the deletion of paragraph 2 of Article 33-2 arguing that it
was outdated and for that reason had been left out in the recast version of Brussels I. A few
delegation spoke against a deletion arguing that the corresponding provision in Brussels I had
proved useful and that service abroad often caused difficulties.
One delegation called for a full realignment on the corresponding provisions of Brussels I for the
sake of consistency.
8078/11
DG H 2A
BS/abs
7
LIMITE EN
Article 34 (Recognition of authentic instruments)
The Chair indicated that there would be no discussion on Article 34 as the issue of authentic
instruments in general would be discussed at the meeting in April.
Article 35 (Enforceability of authentic instruments)
Several delegations indicated that it was difficult to discuss Article 35 without knowing exactly
what would be foreseen in Article 34 and exactly which authentic instruments would be covered.
A number of delegations pointed out that ordre public should not be the only ground for refusal.
Also a challenge of the validity of the instrument should constitute a ground of refusal as initially
foreseen in the Commission proposal.
One delegation pointed out that an important element of the corresponding provision of Brussels I
was lacking, that is the condition for formal validity set out in Article 57(3). Another delegation
argued that an instrument which was invalid as to form in the Member State of origin was unlikely
to be enforceable there. It would therefore not be covered by Article 57 anyway.
Article 35a (Recognition and enforceability of court settlements)
Several delegations called for court settlements to be treated alongside court decisions in Section 1.
Some delegations queried the need to provide for recognition of court settlements (not foreseen in
Brussels I).
One delegation pointed out that a court settlement was a private agreement before a court or
approved by a court. It could therefore be enforced, but not recognised. Another delegation argued
that a court settlement approved by a court would have res judicata effect meaning that it should be
treated on a par with a court decision.
Some delegations called for other grounds for refusal than ordre public, one delegation in particular
for all the grounds listed in Article 30.
8078/11
DG H 2A
BS/abs
8
LIMITE EN
Chapter VI
One delegation voiced its opposition to providing for a European Certificate of Succession. If such
a certificate were to be retained it should not be a title in its own right. Furthermore the relationship
between such a certificate and the other legal acts to be used under the future Regulation would
need to be spelled out clearly.
Article 36 (Creation of a European Certificate of Succession)
Article 36 met with general support in its current version although some delegations pointed to a
certain overlap between paragraphs 1 and 3.
On the recital suggested in footnote 2 this was also met with support. Some delegations however
called for further clarification of the last sentence.
Article 36a (Purpose of the Certificate)
A number of delegations called for the deletion of "under the law applicable to Chapter III" at the
end of paragraph 1.
One delegation reiterated its opposition to the use of the words "prove" (paragraph 1) and "proof"
(paragraph 2) pointing out that the latter were judicial terms and therefore inappropriate.
Some delegations called for the deletion of point (b) in paragraph 2, others wanted it maintained.
One delegation pleaded for a return to the wording of the Commission proposal, if the point was
maintained.
The Commission representative stressed that the Certificate could never be used to certify elements
which had not been established in accordance with the law applicable to the succession. It would
therefore always only reflect situations which were possible under that law.
Article 37 (Competence to issue the Certificate)
Delegations generally supported this provision in its current form. One delegation suggested a
drafting change so as to avoid the second subparagraph of paragraph 2 ("The issuing authority shall
be: (a) a court (…) or (b) another authority (...)").
8078/11
DG H 2A
BS/abs
9
LIMITE EN
On the text in square brackets in the introductory phrase of paragraph 2 most delegations spoke in
favour of a deletion finding the reference to a convention covered by Article 45 inappropriate in the
context.
A few delegations called for a clarification of the relationship between the authority in charge of the
primary succession procedure and the authority competent to issue the Certificate.
Article 38 (Application for a Certificate)
Paragraphs 0 to 1a
With respect to paragraph 0 the PL, AT and DE delegations referred to document 15110/10
JUSTCIV 174 CODEC 1082, in which they explained that forced heirs should not be entitled to
apply for a Certificate given that the latter are considered to be creditors having a claim against the
other heirs. Only heirs and legatees who have a direct claim should be entitled to apply for the
Certificate.
Several delegations questioned the mandatory use of a standard form for applications provided for
in paragraph 1.
Some delegations pointed to an apparent contradiction between the first sentence of paragraph 1a
and the "shall" used in the introductory phrase of paragraph 2.
Paragraph 1b
Several delegations suggested adding "maiden name if applicable" after "surname" in point (a)
(would also apply to other points).
One delegation pointed out that the reference in point (a) to the habitual residence of the deceased
should be deleted. The information to be given was simply the address of the deceased at the time
of death. The same delegation suggested just to write "details about the deceased" and then leave
the rest to be indicated in the form. Another delegation called for the death certificate to be
appended to the application.
8078/11
DG H 2A
BS/abs
10
LIMITE EN
Some delegations called for point (1b) to be deleted arguing that the question of legal representation
was governed by national law. Some wanted the point to cover only a legal representative under the
law, others wanted it to cover also a lawyer representing the applicant.
One delegation called for point (b5) to take account of the fact that under some legal systems there
was not always a court or an authority involved in the succession.
Article 40 (Examination of the application)
Some delegations queried the need for paragraph 1, others the need for paragraph 1b.
Paragraph 2
Delegations welcomed the new text which provided for ex officio investigations only where this is
allowed under national law. One delegation called for the deletion of "in accordance with
Article 38" and queried the use of the word "verify".
Paragraph 2a
Some delegations pointed out that the authority having dealt with the succession would already
have taken all steps to contact all potential beneficiaries. It would therefore seem unnecessary to
require also the issuing authority to inform all beneficiaries.
Some delegations wanted to know what the consequences would be if the issuing authority despite
all necessary steps did not manage to inform all beneficiaries.
Paragraph 3
The Commission representative, with the support of other delegations, called for the reinsertion of
"in particular" so as to make quite clear that the list of registers was not exhaustive. One delegation
suggested using instead "information held in public registers".
Some delegations raised the issue of who would bear the costs involved, in which language requests
should be made, and how to ensure adequate data protection.
Some delegations called for a clearer drafting of the last sentence.
8078/11
DG H 2A
BS/abs
11
LIMITE EN
Article 40a (Issue of the Certificate)
Several delegations called for the deletion of the words "it considers that". Some delegations
suggested replacing "promptly" with "without delay".
Some delegations called for the deletion of "pursuant to Chapter III" on the ground that some of the
elements in the Certificate (for instance, parentage) might have been established under another law.
One delegation wanted it spelled out somewhere that it should not be possible to issue the
Certificate until it was clear that no ordinary remedy would be used.
Article 41 (Contents of the Certificate)
One delegation called for all documents on the basis of which the Certificate is issued to be
appended to the Certificate. This met with no support.
One delegation called for a distinction to be made between the justification for the findings of the
issuing authority and the contents of the Certificate as such. It saw no need for the justifying
elements to feature in the Certificate and stressed that including such elements increased the risk of
infringing data protection rules and made the Certificate difficult to read.
One delegation pointed to a certain overlap between points (h) and (j). It also indicated that it would
be difficult to list all restrictions as some could be restrictions under public law.
Another delegation objected to the inclusion of a list of assets (under point (i)) arguing that such a
list could be very long. On the same ground one delegation objected to an enumeration of the
powers of an executor / administrator (under point (k)).
Article 42 (Effects of the Certificate)
Paragraph 1
One delegation wanted it spelled out in paragraph 1 what the exact relationship is between the
Certificate and court decisions or ongoing proceedings. It objected to the implicit recognition of the
Certificate without any grounds for refusal.
8078/11
DG H 2A
BS/abs
12
LIMITE EN
Other delegations voiced support for paragraph 1 in its current drafting.
Paragraph 2
Some delegations wanted to revert to the text of the Commission proposal and to speak instead of a
presumption of accuracy.
Several delegations stressed the importance of ensuring that the Certificate was a reliable document.
Paragraphs 3 and 4
Many delegations stressed the importance of these two paragraphs as they greatly increase the
usefulness of the Certificate.
Several delegations called for the retention of "or should have known".
With regard to paragraph 4 delegations saw no need to exclude gifts and therefore called for the
deletion of the text in square brackets.
Paragraph 5
The Commission representative indicated that the Commission could accept the intention behind the
sentence in square brackets but called for a rewording of the sentence so as to exclude that the
whole Certificate was rejected if just one item of information was lacking. She stressed the overall
aim of avoiding duplicate procedures. Several delegations voiced support for the provision in its
current form with the retention of the sentence in square brackets.
Two delegations voiced concern at the use of the words "valid document" and suggested instead, for
instance, "basis".
3.
Any other business
The Chair indicated that the next meeting of the Working Party was scheduled for 18, 19 and
20 April 2011. On that occasion a certain number of themes would be discussed.
___________________
8078/11
DG H 2A
BS/abs
13
LIMITE EN