eunbil · GZ0N2A0D23 · 2011-12-06 00:00:00 — 17715/11 ADD 1 REV 1 BS/abs DG H 2A LIMITEEN COUNCIL OF THE EUROPEAN UNION Interinstitutional File: 2009/0157 (COD) 17715/11 ADD 1 REV 1 JUSTCIV 337 CODEC 2237 REVISED ADDENDUM TO NOTE from : the Presidency to : Coreper No. doc. : 17068/11 JUSTCIV 318 CODEC 2075 No. : 14722/09 JUSTCIV 210 CODEC 1209 Subject : Proposal for a Regulation of Parliament and of , applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession - General agreement on the text of the Articles Delegations will find attached the text of the Articles of the proposed Regulation 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. This text presented by the Presidency is to be read in conjunction with the explanations given in document 17715/1/11 REV 1 JUSTCIV 227 CODEC 2237. 2009/0157 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement authentic instruments in matters of succession and the creation of a European Certificate of Succession THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of Union, and in particular Article 81(2) thereof, Having regard to the proposal from Commission, Having regard to the opinion of Economic and , Acting in accordance with the procedure laid down in Article 294 of the Treaty, Whereas: () REGULATION: Chapter I Scope and definitions Article 1 Scope 1. This Regulation shall apply to the succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters. () 3. The following shall be excluded from the scope of this Regulation: (a) the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects; (b) the legal capacity of natural persons, without prejudice to Article 19(2)(c) () and to Article 19c; (c) questions relating to the disappearance, the absence or the presumed death of a natural person; (d) questions relating to matrimonial property regimes and property regimes of relationships () deemed by the law applicable to such relationships to have comparable effects to marriage; (e) maintenance obligations other than those arising by reason of death; (e-1) the formal validity of dispositions of property upon death made orally; (f) property rights, interests and assets created or transferred otherwise than by succession (), by way of for instance gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to Article 19(2)(j); (g) questions governed by the law of companies and other bodies, corporate or unincorporated, such as in the memoranda of association and articles of association of companies and other bodies, corporate or unincorporated which determine what will happen to the shares upon the death of the members; (h) the dissolution, extinction and merger of companies and other bodies, corporate or unincorporated (); (i) the creation, administration and dissolution of trusts; (j) the nature of rights in rem, and (k) any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register. Article 1a Competence in matters of succession within the Member States This Regulation shall not affect the competence of the authorities of the Member States to deal with matters of succession. For the purposes of this Regulation (): (a) succession" means the succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, be it a voluntary transfer under a () disposition of property upon death, or a transfer through intestate succession; (b) (moved to the new paragraph 2) (c) agreement as to succession means an agreement, including an agreement resulting from mutual wills, which (), with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons () party to the agreement; (d) joint will means a will drawn up in one instrument by two or more persons; (d1) "disposition of property upon death" means a will, a joint will or an agreement as to succession; (e) () of origin means the in which, as the case may be, the decision has been given, the court settlement approved or concluded, the authentic instrument established or Certificate of Succession issued; (f) of enforcement () means the in which the () enforceability or the enforcement of the decision, the court settlement or the authentic instrument is sought; (g) decision means any decision () in a matter of succession () given by a court of a , whatever the decision may be called, including () a decision on the determination of costs or expenses by an officer of the court; (g1) "court settlement" means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings; (h) authentic instrument means an instrument in a matter of succession which has been formally drawn up or registered as an authentic instrument and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the of origin. (i) () For the purposes of this Regulation the term court means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act by delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the in which they operate: (a) may be made the subject of an appeal to or review by a judicial authority; and (b) have a similar force and effect as a decision of a judicial authority on the same matter. The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 47. Chapter II Jurisdiction Article 3 Courts (deleted) Article 4 General jurisdiction () The courts of the in which the deceased had his habitual at the time of death shall have jurisdiction to rule on the succession as a whole. Article 5 Transfer to a court better placed to rule on the succession (deleted) Article 5a Choice of court agreement 1. Where the law chosen by the deceased to govern his succession pursuant to Article 17 is the law of a , the parties concerned may agree that a court or the courts of the of the chosen law shall have exclusive jurisdiction to rule on any succession matter. Such a choice of court agreement shall be expressed in writing, dated and signed by the parties concerned. communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. Article 5b Declining of jurisdiction in the event of a choice of law Where the law chosen by the deceased to govern his succession pursuant to Article 17 is the law of a , the court seised pursuant to Articles 4 or 6: (a) may, at the request of one of the parties to the proceedings, decline jurisdiction if it considers that the courts of the of the chosen law are better placed to rule on the succession taking into account the practical circumstances of the succession, such as the habitual of the parties and the location of the assets, or (b) shall decline jurisdiction if the parties to the proceedings have agreed, in accordance with Article 5a, to confer jurisdiction on a court or the courts of the of the chosen law. Article 5c Jurisdiction in the event of a choice of law The courts of a whose law had been chosen by the deceased pursuant to Article 17 shall have jurisdiction to rule on the succession if: (a) a court previously seised has declined jurisdiction in the same case pursuant to Article 5b, or (b) the parties to the proceedings have agreed, in accordance with Article 5a, to confer jurisdiction on a court or the courts of that , or (c) the parties to the proceedings have expressly acknowledged the jurisdiction of the court seised. Article 5d Closing of proceedings in the event of a choice of law A court seised of its own motion of a succession case under Articles 4 or 6 shall close the proceedings if the parties to the proceedings have agreed to settle the succession amicably out of court in the whose law had been chosen by the deceased pursuant to Article 17. Article 5e Jurisdiction based on appearance Where, in the course of proceedings before a court of a exercising jurisdiction pursuant to Article 5c, it appears that not all the parties to those proceedings were party to the choice of court agreement or to the agreement on amicable settlement, the court shall continue to exercise jurisdiction if the parties to the proceedings who were not party to the agreement in question enter an appearance without contesting the jurisdiction of the court. If the jurisdiction of the court referred to in paragraph 1 is contested by parties to the proceedings who were not party to the agreement in question, the court shall decline jurisdiction. In that event, jurisdiction to rule on the succession shall lie with the courts having jurisdiction pursuant to Articles 4 or 6. Article 6 Subsidiary jurisdiction Where the habitual of the deceased at the time of death is not located in a , the courts of a in which succession assets are located shall nevertheless have jurisdiction to rule on the succession as a whole () in so far as: (a) the deceased had the nationality of that at the time of death; or failing that, (b) the deceased had his previous habitual in that , provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual changed. (c) () (d) (moved to new paragraph 2) Where no court in a has jurisdiction pursuant to paragraph 1, the courts of the in which succession assets are located shall nevertheless have jurisdiction to rule on those assets. Article 6a Forum necessitatis Where no court of a has jurisdiction pursuant to other provisions of this Regulation, the courts of a may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected. The case must have a sufficient connection with the of the court seised. Article 6b Limitation of proceedings Where the estate of the deceased comprises assets located in a third State, the court seised to rule on the succession may, at the request of one of the parties, decide not to rule on one or more of such assets if it may be expected that its decision in respect of those assets will not be recognised and, where applicable, declared enforceable in that third State. Paragraph 1 shall not affect the right of the parties to limit the scope of the proceedings under the law of the of the court seised. Article 7 Counterclaim (deleted) Article 8 () Acceptance or waiver of the succession, of a legacy or of a reserved share In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts in the of the habitual of any person who, under the law applicable to the succession, may make a declaration before a court () concerning the acceptance or the waiver of the succession, of a legacy or of a reserved share of the estate or a declaration designed to limit the liability of the person concerned in respect of the liabilities of the estate shall have jurisdiction to receive such declarations where, under the law of that , such declarations may be made before a court. Article 9 () Measures under property law (deleted) Article 10 Seising of a court For the purposes of this Chapter, a court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court, or (c) if the proceedings are opened of the courts own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court. Article 11 Examination as to jurisdiction Where a court of a is seised of a matter of succession over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction. Article 12 Examination as to admissibility 1. Where a defendant habitually resident in a () State other than the where the action was brought does not enter an appearance, the court having jurisdiction shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in time to arrange for his defence, or that all necessary steps have been taken to this end. Article 19 of Regulation (EC) No 1393/2007 () shall apply instead of () paragraph 1 if the document instituting the proceedings or an equivalent document had to be transmitted from one to another pursuant to that Regulation. Where () Regulation (EC) No 1393/2007 is not applicable, Article 15 of the Hague Convention of on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention. Article 13 pendens 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 14 Related actions 1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable decisions resulting from separate proceedings. Article 15 Provisional, including protective, measures Application may be made to the courts of a for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another have jurisdiction as to the substance of the matter. Chapter III Applicable law Article 16-0 (formerly Article 25) application law specified by this Regulation shall be applied whether or not it is the law of a . Article 16 General rule Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual at the time of death. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State. Article 17 Choice of law 1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice. A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice. () The choice of the law applicable to the succession shall be made expressly in a declaration in the form of a disposition of property upon death or be clearly demonstrated by the terms of such a disposition. The () substantive validity of the () act whereby the choice of law was made shall be governed by the chosen law. The modification or the revocation () of the choice of law () shall meet the requirements as to form for the modification or the revocation of a disposition of property upon death. Article 18 Agreements as to succession (moved to Article 19b) Article 19 The scope of the applicable law 1. The law determined pursuant to Article 16 or Article 17 shall govern the succession as a whole (). This law shall govern in particular: (a) the causes, time and place of the opening of the succession; (b) the determination of the () beneficiaries (), of their respective shares () and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights (), including the succession rights of the surviving spouse or partner; (c) the capacity to inherit; (d) (deleted in the light of Article 19c) (e) disinheritance and disqualification by conduct; (f) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations making up the estate, including the conditions and effects of the acceptance or the waiver of the succession or a legacy; (g) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in Article 21(3); (h) the liability for the debts under the succession; (i) the () disposable part of the estate, the reserved shares and other restrictions on the disposing of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs; (j) any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries (); (k) (deleted in the light of Article 19c) (l) the sharing-out of the estate. Article 19a (former Article 18-0 of document 16500/11) Dispositions of property upon death other than agreements as to succession A disposition of property upon death other than an agreement as to succession shall be governed with regard to its admissibility and substantive validity by the law which, under this Regulation, would have been applicable to the succession of the person having made the disposition if he had died on the day on which the disposition was made. Notwithstanding paragraph 1, a person may choose as the law to govern his disposition of property upon death with regard to its admissibility and substantive validity, the law which the person having made the disposition could have chosen in accordance with Article 17 on the conditions set out therein. Paragraphs 1 and 2 shall apply, as appropriate, to the modification or revocation of a disposition of property upon death other than an agreement as to succession. Article 19b (former Article 18) Agreements as to succession An agreement as to succession regarding the succession of one person shall be governed, with regard to its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded. An agreement as to succession regarding the succession of several persons shall be admissible only if it is admissible under all the laws which, under this Regulation, would have governed the succession of all the persons involved if they had died on the day on which the agreement was concluded (). An agreement as to succession which is admissible pursuant to the first subparagraph shall be governed, with regard to its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law, from among those referred to in the first subparagraph, with which it has the closest connection. Notwithstanding paragraphs 1 and 2, the parties may choose as the law governing their agreement as to succession, with regard to its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 17 on the conditions set out therein. Article 19c (former Article 18-1 in document 16500/11) Substantive validity of dispositions of property upon death For the purposes of Articles 19a and 19b the following elements shall pertain to substantive validity: (a) the capacity of the person making the disposition of property upon death to make such a disposition; (b) the particular causes which bar the person making the disposition from disposing in favour of certain persons or which bar a person from receiving succession property from the person making the disposition; (c) the admissibility of representation for the purposes of making a disposition of property upon death; (d) the interpretation of the disposition; (e) fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition. Where a person has the capacity to make disposition of property upon death under the law applicable pursuant to Articles 19a or 19b, a subsequent change of the law applicable shall not affect his capacity to modify or revoke such a disposition. Article 19d (former Article 18a in document 16500/11) Formal validity of dispositions of property upon death made in writing A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law: (a) of the State where the disposition was made or the agreement as to succession concluded, or (b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death, or (c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had their domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death, or (d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had their habitual , either at the time when the disposition was made or the agreement concluded, or at the time of death, or (e) as far as immovable property is concerned, of the State in which the immovable property is located.