eunbil · GZ0N2A0D23 · 2011-12-06 00:00:00 — The determination of whether or not the testator or the persons whose succession is concerned by the agreement as to succession had their domicile in a particular State shall be governed by the law of that State. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, the nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death. Article 20 Validity as to form of a declaration concerning acceptance or waiver () A declaration concerning the acceptance or the waiver of the succession, of a legacy or of a reserved share or a declaration designed to limit the liability of the person making the declaration shall be valid as to form where it meets the requirements of: (a) the law applicable to the succession pursuant to Articles 16 or 17, or (b) the law of the State in which the person making the declaration has his habitual . Article 21 Application of the law of the in () which succession property is located 1. () 2. Where the law of a in which succession property is located requires the appointment of an administrator of the estate or an executor of the will by an authority located in that in relation to the property located on its territory, the law of that may apply as regards the appointment of such an administrator or executor. The authority appointing the administrator or the executor shall respect the entitlement, under the law applicable to the succession, of persons, such as the heirs, legatees, administrators of the estate or executors of the will, to administer and liquidate the succession. The powers of the administrator or the executor appointed pursuant to this paragraph shall be those set out in paragraph 3. Where the protection of the rights of creditors so requires, the administrator or executor appointed pursuant to paragraph 2 shall, with regard to the property located in the in which he is appointed, have the power to take or apply for such protective measures as may be available under the law of that and under the conditions set out in that law in so far as such measures are not incompatible with any measures ordered by the court having jurisdiction as to the substance of the matter or taken by an administrator or executor appointed under the law applicable to the succession. To that end, the administrator or executor appointed pursuant to paragraph 2 shall, where appropriate, cooperate with any competent authority or administrator or executor appointed in another . Article 22 Special rules setting restrictions concerning or affecting the succession in respect of certain assets Where the law of the State in which certain immovable property, certain enterprises or other special categories of assets are located contains special rules which, for economic, family or social considerations, set restrictions concerning or affecting the succession in respect of those assets, those special rules shall apply to the succession in so far as, under the law of that State, those rules are applicable irrespective of the law applicable to the succession. Article 22a Adaptation of rights in rem Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it. Article 23 Simultaneous death Where two or more persons whose successions are governed by different laws die in circumstances in which it is uncertain in what order their deaths occurred, and where those laws provide differently for this situation or make no provision () at all, none of the deceased persons shall have any succession rights to the other or others. Article 24 Estate without a claimant To the extent that, under the law applicable to the succession pursuant to this Regulation, there is no heir or legatee for any assets under a disposition of property upon death and no natural person is an heir by operation of law, the application of the law so determined shall not preclude that a State or an entity appointed for that purpose by that State may appropriate the assets of the estate () located on its territory provided that the creditors are entitled to seek satisfaction of their claims out of the assets of the succession as a whole. Article 25 (moved to Article 16-0) The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a , or (b) to the law of another third State which would apply its own law. No renvoi shall apply with respect to the laws referred to in Article 16(2), Article 17, Article 19d, Article 20(b) and Article 22. Article 27 Public policy (ordre public) The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum. Article 28 States with more than one legal system - territorial conflicts of laws Where the law specified by this Regulation is that of a State which comprises several territorial units each of which has its own rules of law in respect of succession, the internal conflict of laws rules of that State shall determine the relevant territorial unit whose rules of law shall apply. In the absence of such internal conflict of laws rules: (a) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the habitual of the deceased, be construed as referring to the law of the territorial unit in which the deceased had his habitual at the time of death; (b) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the deceased, be construed as referring to the law of the territorial unit with which the deceased had the closest connection; (c) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of the territorial unit in which the relevant element is located. Notwithstanding paragraph 2, any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the relevant law pursuant to Article 19d, in the absence of internal conflict of laws rules in that State, be construed as referring to the law of the territorial unit with which the testator or the persons whose succession is concerned by the agreement as to succession had the closest connection. Article 28a States with more than one legal system - inter-personal conflicts of laws In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of succession, any reference to the law of such a State shall be construed as referring to the system of law or set of rules determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the deceased had the closest connection shall apply. Article 28b Non-application of this Regulation to internal conflicts of laws A which comprises several territorial units each of which has its own rules of law in respect of succession shall not be required to apply this Regulation to conflicts of laws arising between such units only. Chapter IV Recognition, enforceability and enforcement of decisions Article 29 (mutatis mutandis I Article 33 / 4/2009 Article 23) Recognition () A decision given in a be recognised in the other Member States without any special procedure being required. interested party who raises the recognition of a decision as the principal issue in a dispute may, in accordance with the procedure provided for () in Articles 33-1 to 33-14, apply for that decision to be recognised. If the outcome of the proceedings in a court of a depends on the determination of an incidental question of recognition, that court shall have jurisdiction over that question. Article 30 (mutatis mutandis I Article 34 / 4/2009 Article 24) Grounds of non-recognition A decision shall not be recognised (): (a) () if such recognition is manifestly contrary to public policy (ordre public) in the in which recognition is sought, (); (b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so; (c) if it is irreconcilable with a decision given in proceedings between the same parties in the in which recognition is sought; (d) if it is irreconcilable with an earlier decision given in another or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the in which recognition is sought. Article 31 (mutatis mutandis I Article 36 / 4/2009 Article 42) No review as to the substance () Under no circumstances may a () decision given in a be reviewed as to its substance. Article 32 (mutatis mutandis 4/2009 Article 25) Staying of recognition proceedings A court of a in which the recognition is sought of a decision given in another may stay the proceedings if an ordinary appeal agaist the decision has been lodged in the of origin. Article 33 Enforceability () Decisions given in a and enforceable in that State () shall be enforceable in the other Member States when, on the application of any interested party, they have been declared enforceable there in accordance with () the procedure provided for in Articles 33-1 to 33-14. Article 33a (mutatis mutandis I Article 59) Determination of domicile To determine whether, for the purposes of the procedure provided for in Articles 33-1 to 33-14, a party is domiciled in the of enforcement, the court seised shall apply the internal law of that . Article 33-1 (mutatis mutandis I Article 39 / 4/2009 Article 27) Jurisdiction of local courts 1. The application for a declaration of enforceability shall be submitted to the court or competent authority of the of enforcement notified by that to the Commission in accordance with Article 46a. The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement. Article 33-2 (mutatis mutandis I Articles 40, 53 and 54) Procedure The application procedure shall be governed by the law of the of enforcement. The applicant shall not be required to have a postal address or an authorised representative in the of enforcement. The application shall be accompanied by the following documents: (a) a copy of the decision which satisfies the conditions necessary to establish its authenticity (b) the attestation issued by the court or competent authority of the of origin using the form to be established in accordance with the advisory procedure referred to in Article 48(3), without prejudice to Article 33-3. Article 33-3 (mutatis mutandis 4/2009 Article 29 / I Article 55) Non-production of the attestation If the attestation referred to in Article 33-2(3)(b) is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production. If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be done by a person qualified to do translations in one of the Member States. Article 33-4 (mutatis mutandis I Article 41 / 4/2009 Article 30) Declaration of enforceability The decision shall be declared enforceable immediately on completion of the formalities in Article 33-2 without any review under Article 30. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application. Article 33-5 (mutatis mutandis 4/2009 Article 31 / I Article 42) Notice of the decision on the application for a declaration of enforceability 1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the of enforcement. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the decision, if not already served on that party. Article 33-6 (mutatis mutandis 4/2009 Article 32 / I Article 43) Appeal against the decision on the application for a declaration of enforceability 1. The decision on the application for a declaration of enforceability may be appealed against by either party. The appeal shall be lodged with the court notified by the concerned to the Commission in accordance with Article 46a. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters. If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 12 shall apply even where the party against whom enforcement is sought is not domiciled in any of the Member States. An appeal against the declaration of enforceability shall be lodged within 30 days of service thereof. If the party against whom enforcement is sought is domiciled in a other than that in which the declaration of enforceability was given, the time for appealing shall be 60 days and shall run from the date of service, either on him in person or at his . No extension may be granted on account of distance. Article 33-7 (mutatis mutandis 4/2009 Article 33 / I Article 44) Procedure to contest the decision given on appeal The decision given on the appeal may be contested only by the procedure notified by the concerned to the Commission in accordance with Article 46a. Article 33-8 (mutatis mutandis I Article 45) Refusal or revocation of a declaration of enforceability The court with which an appeal is lodged under Article 33-6 or Article 33-7 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Article 30. It shall give its decision without delay. Article 33-9 (mutatis mutandis 4/2009 Article 35 / I Article 46) Staying of proceedings The court with which an appeal is lodged under Article 33-6 or Article 33-7 shall, on the application of the party against whom enforcement is sought, stay the proceedings if the enforceability of the decision is suspended in the of origin by reason of an appeal. Article 33-10 (mutatis mutandis 4/2009 Article 36 / I Article 47) Provisional, including protective measures 1. When a decision must be recognised in accordance with this Section, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the of enforcement without a declaration of enforceability under Article 33-4 being required. The declaration of enforceability shall carry with it by operation of law the power to proceed to any protective measures. During the time specified for an appeal pursuant to Article 33-6(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought. Article 33-11 (mutatis mutandis 4/2009 Article 37 / I Article 48) Partial enforceability 1. Where a decision has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them. An applicant may request a declaration of enforceability limited to parts of a decision. Article 33-12 (mutatis mutandis 4/2009 Article 47 / I Article 50) Legal aid An applicant who, in the of origin has benefited from complete or partial legal aid or exemption from costs or expenses, shall be entitled, in any proceedings for a declaration of enforceability, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the of enforcement. Article 33-13 (mutatis mutandis 4/2009 Article 44(5) / I Article 51) No security, bond or deposit No security, bond or deposit, however described, shall be required of a party who in one applies for recognition, enforceability or enforcement of a decision given in another on the ground that he is a foreign national or that he is not domiciled or resident in the of enforcement. Article 33-14 (mutatis mutandis 4/2009 Article 38 / I Article 52) No charge, duty or fee In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the of enforcement. Chapter V Authentic instruments and court settlements Article 34 Acceptance of authentic instruments An authentic instrument () established in a have the same evidentiary effects in another as it has in the of origin or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the concerned. The person wishing to use an authentic instrument in another may ask the authority establishing the authentic instrument in the of origin to fill in the form to be established in accordance with the advisory procedure referred to in Article 48(3) describing the evidentiary effects which the authentic instrument produces in the of origin. challenge relating to the authenticity of an authentic instrument shall be made before the courts of the of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another as long as the challenge is pending before the competent court. challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a other than the of origin as regards the matter being challenged as long as the challenge is pending before the competent court. If the outcome of proceedings in a court of a depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of succession that court shall have jurisdiction over that question. Article 35 Enforceability of authentic instruments () An authentic instrument which is enforceable in the of origin shall be declared enforceable in another on the application of any interested party in accordance with the procedure provided for in () Articles 33-1 to 33-14. For the purposes of Article 33-2(3)(b) the authority having established the authentic instrument shall, on the application of any interested party, issue an attestation using the form to be established in accordance with the advisory procedure referred to in Article 48(3). The court with which an appeal is lodged () under Article 33-6 or Article 33-7 shall refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument is manifestly contrary to public policy (ordre public) in the of enforcement (). Article 35a Enforceability of court settlements Court settlements which are enforceable in the of origin shall be declared enforceable in another on the application of any interested party in accordance with the procedure provided for in Articles 33-1 to 33-14. For the purposes of Article 33-2(3)(b) the court which approved the settlement or before which it was concluded shall, on the application of any interested party, issue an attestation using the form to be established in accordance with the advisory procedure referred to in Article 48(3). The court with which an appeal is lodged under Article 33-6 or Article 33-7 shall refuse or revoke a declaration of enforceability only if enforcement of the court settlement is manifestly contrary to public policy (ordre public) in the of enforcement. Chapter VI European Certificate of Succession Article 36 Creation of a European Certificate of Succession 1. This Regulation creates a European Certificate of Succession (hereinafter referred to as "the Certificate") which shall be issued for use in another and shall produce the effects listed in Article 42. () 2. The use of the Certificate shall not be mandatory. The Certificate shall not substitute internal documents used for similar purposes in the Member States. However, once issued for use in another the Certificate shall also produce the effects listed in Article 42 in the whose authorities issued it in accordance with this Chapter. Article 36a Purpose of the Certificate 1. The Certificate is for use by heirs and legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another , need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. The Certificate may be used, in particular, to demonstrate one or more of the following specific elements: (a) the status and/or the rights of each heir or, as the case may be, each legatee mentioned in the Certificate and their respective shares of the estate; (b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate (); (c) the powers of the person mentioned in the Certificate to execute the will or administer the estate. Article 37 Competence to issue the Certificate 1. () 2. The Certificate shall be issued in the whose courts have jurisdiction under Articles 4, 5c, 6 or 6a. The issuing authority shall be: (a) a court as defined in Article 2(2), or (b) another authority which, under national law, () has competence to deal with matters of succession. Article 38 Application for a Certificate 0. The Certificate shall be issued upon application by any person referred to in Article 36a(1) (hereinafter referred to as "the applicant"). For the purposes of submitting an application, the applicant may use the form to be established in accordance with the advisory procedure referred to in Article 48(3).