Opinion of the European Economic and Social Committee on the Green Paper on succession and wills  (COM(2005) 65 final)
Date: 2005-10-26
Institutions: European Economic and Social Committee
Subjects: approximation of laws, inheritance, law of succession, mutual recognition principle, private international law, transfer of property

3.2.2006

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Official Journal of the European Union

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II

(Preparatory Acts)

EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

421st PLENARY SESSION, HELD ON 26 AND 27 OCTOBER 2005

Opinion of the European Economic and Social Committee on the Green Paper on succession and
wills

(COM(2005) 65 final)

(2006/C 28/01)

On 1 March 2005 the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the Green Paper on
succession and wills.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 21 September 2005. The rapporteur was Mr
Retureau.

At its 421st plenary session, held on 26 and 27 October 2005 (meeting of 26 October), the European
Economic and Social Committee adopted the following opinion by 118 votes with 2 abstentions.

1. The Commission's proposals

2. The Committee's general comments

1.1
In compliance with the Hague Programme (2001), the
Commission is presenting a consultative Green Paper on
international
succession and wills outlining the
aspects:

subject's

— applicable law,

— jurisdiction and mutual recognition of judicial decisions and

instruments,

— administrative measures, deeds or administrative docu-

ments, and the mutual recognition thereof,

— measures simplifying formalities at European level: certifi-

cates of inheritance and registration of wills.

Transnational

1.2
specific difficulties
succession presents
and obstacles for beneficiaries due to the diversity of substan-
tive laws, procedural rules and rules on conflict of laws in force
in each Member State.

1.3
The Green Paper therefore proposes that the European
Union should consider the possibility of adopting substantive
rules and rules governing jurisdiction, applicable law and
mutual recognition not only for court judgments but also for
administrative decisions and documents concerning wills and
succession. Such rules would also apply when the international
component of the succession involves a non-EU country.

At international

2.1
tions on succession and wills, as well as another on trusts:

level, there are three Hague Conven-

— The Convention on the Conflicts of Laws relating to the
(concluded on 5
Form of Testamentary Dispositions
October 1961, entered into force on 5 January 1964)
Parties: Germany, Austria, Belgium, Denmark, Spain,
Estonia, Finland, France, Greece and Luxembourg. This
convention has also come into force in other Member
States, such as the Netherlands, the United Kingdom and
Sweden (ratifications), Ireland and Poland (accessions) and
Slovenia (as a successor of the former Yugoslavia).

— The Convention concerning the International Administra-
tion of the Estates of Deceased Persons (concluded on 2
October 1973, entered into force on 1 July 1993). This has
come into force in some Member States, such as Portugal
(ratification), the Slovak Republic and the Czech Republic
(as successors of the former Czechoslovakia).

— The Convention on the Law applicable to Succession to the
Estates of Deceased Persons (concluded on 1 August 1989,
not yet in force but already ratified by one Member State,
the Netherlands).

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— The Convention on the Law applicable to Trusts and on
their Recognition (concluded on 1 July 1985, entered into
force on 1 January 1992). Parties: Italy and Luxembourg.
This convention has also come into force in other Member
States, such as the Netherlands, the United Kingdom (ratifi-
cations) and Malta (accession).

the appropriation of a portion of an inheritance for a specific
use. This should be done in the countries concerned and
encouraged by the EU with the aim of improving the harmoni-
sation of substantive law and ensuring the continuity of busi-
nesses and farmholdings that would otherwise have to be liqui-
dated when the time came to share them among several heirs.

Form of

A UNIDROIT Convention providing a Uniform Law on
2.2
the
concluded in
an International Will was
Washington on 26 October 1973 and came into force on 9
February 1978. The EU Member States parties to the Conven-
tion are Belgium, Cyprus, (Czechoslovakia), France, (The Holy
See), Italy, the United Kingdom, Slovenia, and several non-EU
countries including the United States and the Russian Federa-
tion. This convention provides for an international system of
registration and a standard form for accomplishing this.

2.2.1
The Member States which are parties to the 1972
Basel Convention on the Establishment of a Scheme of Regis-
tration of Wills, concluded under the auspices of the Council of
Europe but open for accession to non-member states, are
Belgium, Cyprus, Estonia, France, Italy, Lithuania, Luxembourg,
the Netherlands, Portugal and Spain.

2.3
The Hague Conventions concern jurisdiction and applic-
able law, the UNIDROIT Conventions concern substantive law
on matters with an international dimension. Only the interna-
tional provisions on the form of wills and on their registration
on an international register currently have a sufficiently signifi-
cant number of ratifying or contracting parties.

2.4
The matter under consideration concerns a fundamental
human right, namely a specific form of property rights transfer
following a person's death. EU legislation as regards compe-
tence, applicable law and mutual recognition for successions
with an international component should take the form of a
regulation.

In view of the subject's complexity, the Commission's
2.5
aims and proposals are ambitious, but also pertinent and vital
for the internal market. Many individuals are affected. In order
to make the regulation more effective and avoid any clashes
between rules or decisions taken by different states, it would be
advisable to include as many issues as possible in the scope of
the rules concerning conflicts of
law, always making them
functionally and essentially subordinate to the issue of succes-
sion (avoid adding,
issues which are basically
for example,
matters for the legal arrangements concerning real rights).

2.6
The economic importance of having EU rules is undeni-
able, especially with regard to the transfer of SME assets in
Europe, in order to ensure continuity following the death of an
entrepreneur — an issue that is also important for employment
and competitiveness in Europe.

2.8
In view of the profound differences between existing
national laws despite certain recent developments, and in view
of the small number of countries that have ratified the relevant
the Committee agrees with the
international conventions,
Commission that it would currently be impossible to formulate
uniform substantive law on international succession and wills
that could be applied throughout the European Union. The
working themes and priorities put forward are appropriate
since progress in these areas would already solve many of the
practical difficulties encountered by the relevant beneficiaries,
notaries, administrations, courts and members of
the legal
profession.

2.8.1
Other paths can also be explored taking into account
international law, which Member States could be asked to take
into consideration for ratification or for accession to certain
conventions (form of wills, applicable law, international will,
national and international registration).

2.8.2
The law of succession and wills in Romano-Germanic
legal systems has long been marked by attitudes towards inheri-
tance that are extremely outdated in many respects. The decea-
sed's (1) estate was considered to represent a form of continuity
through one's heirs. The law of succession now tends increas-
ingly towards contractualisation. Following a trend set
in
Germany and Switzerland, France is in the process of adopting
succession law reforms granting the deceased and his heirs a
greater role in settling succession, including greater guarantees
for continuity of business.

2.8.3
On the other hand, extremely liberal systems that
enable the testator to disinherit some of his bodily heirs
without
justification are being increasingly challenged, as
demonstrated by the ever-growing body of litigation in this
area.

2.8.4
Respecting certain historical and sociological specifici-
ties in different legal systems does not exclude the possibility
that, in the long term, a greater level of standardisation, or at
least a higher degree of convergence, will finally come into
existence in Europe,
thereby facilitating the execution and
settlement of international wills. This process could be acceler-
ated by creating a European will and a sufficiently open and
liberal instrument on applicable law. The hypothesis of having
Community provisions of substance could also be studied, in
the context of an acceptance of ‘professio juris’ (2), as an alterna-
tive to one or more of the applicable national laws.

Amendments should be considered to rules that,

2.7
in
some countries, prohibit agreements as to future successions or

(1) Footnote not necessary in English text.
(2) Choice, by the testator, of the law applicable to his succession.

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2.9
The Committee would point out that Council Regulation
(EC) No 2201/2003 of 27 November 2003 concerning jurisdic-
tion and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility,
repealing Regulation (EC) No 1347/2000 constitutes a source
of inspiration. Articles 21(3) and 46 of Regulation No 2201/
2003, in particular, are relevant sources and, at the very least,
set precedents in family law that contribute to determining the
substance of the proposed legislative provisions (3).

2.10
The Committee therefore welcomes the Green Paper
and considers that it raises fundamental and pressing questions.
The EESC will endeavour to find answers to these questions,
basing itself on the European citizens' best interests and taking
into consideration their growing mobility and the major migra-
tions that have already taken place in the past.

2.11
It would be appropriate to begin by dealing with the
form of wills, international jurisdiction, and resolving conflict
of law issues relating to applicable law, the registration of wills,
as well as the mutual recognition of rulings by the courts and
other competent authorities and endorsement, areas where
precedents have already been set in European and international
law.

The EESC feels that a unitary system (single law of
2.12
succession and single set of rules governing inheritances)
is
preferable to having various scattered rules for settling a succes-
sion; however, for practical reasons, this principle should be
subject to exceptions in certain cases, particularly for buildings
or certain types of property (ships, aircraft, goodwill, etc.)
located abroad.

Certain matters,

such as agreements as

2.13
to future
successions or trusts, remain under national jurisdiction (4); but
those concerning the recognition without exequatur of court
decisions, which may or may not give rise to dispute in matters
of succession, residual jurisdiction, recognition of decisions and
documents issued by public or private extra-judicial authorities
or registration in national
land registers on the basis of the
European certificate of inheritance, should be included under
the proposed European legislation.

3. Comments on specific questions raised in the Green

Paper

similar

A regulation on successions

3.1
to the above-
mentioned Council Regulation No 2201/2003 would not be
to solve the problems presented by international
sufficient
successions. In fact, most successions are not contentious and
problems that arise in the absence of any contention must also
be addressed. Furthermore, the courts are sometimes involved
in settling non-contentious issues in certain countries, or for
specific matters.

3.2
Needless to say, the Community instrument should regu-
late matters raised previously concerning the determination of
the forum or fora having jurisdiction and the recognition of
court decisions, but it should also consider the possibilities of
regulating:

substance,

— testate successions: conditions for the validity of wills
(form,
limits on the
freedom to bequeath) reserved portions, anomalous succes-
sions, agreements as to future successions (authorised or
prohibited), reserved portions, trusts, status as heir,

testamentary capacity,

— intestate and testate succession: status as heir and portions
of an estate, rules governing indivisum, the administration
and distribution of the estate etc.,

— in addition to the recognition of court decisions (and
the recognition of
possible exceptions of public order),
extra-judicial
non-contentious
succession settlements: wills, deeds and other administrative
documents or the international jurisdiction of the relevant
public officials and members of the legal profession,

concerning

documents

— as for the connecting factors to be considered when deter-
mining jurisdiction, a certain degree of flexibility would
appear to be required to ensure compliance with the testa-
tor's choice of applicable law or, alternatively, the law that
the beneficiaries would be reasonably entitled to consider as
applicable (place of testator's nationality, habitual residence,
death, the place where the will was drafted and deposited
or the place where the bulk of the estate is located ...).

is

in favour of

The Committee

3.3
the EU's Hague
Programme insofar as it provides for the creation of a ‘Euro-
pean certificate of inheritance’ and a system for registering
wills. Member States will have to determine which authority is
authorised to issue such certificates and set up a centralised
national registry if one does not already exist. A central register
for the Community (or for Europe in the sense of the Council
of Europe, provided that the Member States which have not
already done so were asked to ratify the Convention of Basel)
should be created and courts, notaries, and other officials
authorised under
law should have
the applicable national
access to the information deposited with the central register (at
least, to find out on the basis of the deceased's name and his
date of birth, in which Member State or third country, on what
date, and with which authority the will has been deposited in
order to request a copy from the aforementioned national
authority).

(3) OJ L 338, 23.12.2003.
(4) Trusts created by a testator are not recognised in many continental
countries; moreover, some of these countries consider the reserved
portion of estate or the reporting of donations as being of a public
nature. This encourages attempts to circumvent
the inheritance
laws, particularly as regards buildings located on the territory of
these countries.

3.3.1
The European registration system must, whatever
happens, be compatible with the Basel Convention and the
Washington Convention,
since several Member States are
already parties to them and since the draft EU legislation may
also concern successions involving third countries.

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3.4
Once status as heir has been established and the estate
has been administered and distributed, administrative formal-
ities should be as straightforward as possible. The Committee
would be in favour of mutual recognition for all acts and docu-
ments issued by officials recognised under local law, and the
direct registration in a land register (or with the appropriate
authority for registering title to real estate) of title to property
as well as any easements, mortgages, or other possible encum-
brances that might burden the estate in question under the
applicable national law.

4. Other questions raised

4.1
The Green Paper raises 39 main questions, which are
broken down into sub-questions. The EESC will not attempt to
address all these at this preliminary stage but would urge the
Commission to consult individually each of the organisations
representing members of the legal profession concerned by
each of the topics considered by the Green Paper.

is important

3.5
The Committee would draw the Commission's attention
to taxation issues that might face the heirs to an estate located
in two or more countries.
to avoid any
It
problems that might arise in regard to double taxation on part
or all of the estate, which could have a confiscating effect in
some successions or which could create inequalities amongst
heirs depending on the nature of the goods they have each
inherited. Stock will have to be taken of the rules applying to
international successions in the Member States in order to
establish which countries raise taxes on goods and assets situ-
ated outside their territory, compare rates and propose fair
solutions to be submitted to the relevant countries. The
Commission might possibly consider proposing a model
convention against double taxation in respect of international
successions, between the Member States.

3.6
Should a European will be based on the model of the
Washington Convention's international will; and should Euro-
pean registration, as foreseen in the Basel Convention, be
extended to international registration? This might encourage
more countries to ratify the Washington and Basel Conventions
and provide better guarantees for the beneficiaries of interna-
tional wills involving not only Member States but also third
countries. The Committee recommends that the Commission's
work should follow this course because Member States are
already familiar with these conventions, either because they
have ratified them or because their public officials or courts
have already dealt with wills and registrations subject to these
legal systems.

3.7 Were this hypothesis to become reality, the European
will would be recognised in its form by all national
legal
systems. European law must not allow simple matters of form
to undermine the universal principle that recognises respect for
testamenti) within the limits
the testator's intentions (favor
permitted by applicable law.

3.8
Specific Community rules are essential so that this legis-
lation applies to all cases of successions under the jurisdiction
of two or more Member States, or even of third countries,
including those which are parties to international conventions,
so as to guarantee the application of Community law in all
circumstances (Community ‘special law’ would then have prece-
dence over international law).

itself

restrict

The EESC will

4.2
to presenting possible
responses to a number of questions that it believes to be of par-
ticular significance. The overall approach adopted will focus on
compliance with the conventions of the Hague, Basel, and
Washington in order to ensure that the European rules are as
standardised as possible, the future perspective being to achieve
a legal consensus that
is broadly acceptable to as many
Member States and third countries as possible.

The connecting factors laid down in the Hague Conven-
4.3
tion of 1961 on conflict of laws relating to the form of testa-
mentary dispositions should at least be retained since they offer
sufficient diversity, making it possible, in most cases, to recog-
nise the applicability of the law under which the will was
made.

In the spirit of recent and ongoing reforms in conti-
4.4
nental Europe, the interests of legally incapacitated (minors or
adults) or severely disabled heirs should be specifically safe-
guarded if a possible extension of the contractualisation of wills
or the heirs' choice of applicable law modifies the reserved
portion regime or creates inequalities amongst heirs. Greater
flexibility for the testator or the beneficiaries should not under-
mine existing provisions in any of the applicable laws that
afford these heirs the highest degree of protection (see ques-
tions 5 and 10 in the Green Paper).

4.5
Actions taken by of one of the heirs or his representa-
tive in administering the succession in a country where an
executor need not be appointed should not constitute implicit
acceptance of the succession without the benefit of inventory.

4.6
Consideration should be given to the option of the heirs
accepting a succession up to the limit of the claims on the
inheritance, and to that of a pact between heirs or a heritage
contract providing for an unequal division for
legitimate
purposes (continued operation of a farm or business, advantage
for an heir with a mental or physical disability), and to agree-
ments providing for an equal division between children from
different marriages or natural children if applicable law does
not organise such equality, or to an heir passing on his rights
to his own direct descendants, bearing in mind the increase in
life expectancy.

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4.7
The testator should also be allowed, subject to certain
limits, to choose which law should be applicable to his estate,
for example that of his nationality (or one of his nationalities),
or that of his usual place of residence.

4.8
Finally, the EESC believes that the Commission's excel-
lent comparative work should be pursued and developed. It
should be regularly updated on the Community website and
translated into an adequate number of languages to ensure its
general usefulness for members of the legal profession, public
officials, administrators, and courts dealing with international
successions. It should also be structured to include a chapter-
by-chapter synthesis clarifying the general principles for Euro-
pean citizens wishing to draft a will with international scope or
for their heirs.

Brussels, 26 October 2005.

it hopes that a general

4.9
The EESC awaits with interest the results of the consulta-
tions already carried out by the Commission or those still to
come;
line of approach and more
concrete legislative proposals can then be submitted to it for an
opinion, and proposes then to examine them in detail, since it
considers the issue of wills and successions to be one of major
interest for the citizens of Europe; their hopes for a simplifica-
tion of formalities, greater legal and fiscal certainty and a spee-
dier settlement of international successions, which they expect
from a Community initiative, must not be disappointed,
whether the circumstances be those of private individuals, busi-
nesses, farms or other economic activities where the entrepre-
neurs or owners wish to ensure continuity after their demise.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

Opinion of the European Economic and Social Committee on the Current situation and prospects
for traditional energy sources — coal, oil and natural gas — in a future energy mix

(2006/C 28/02)

On 10 February 2005, the European Economic and Social Committee, acting under Rule 29(2) of its Rules
of Procedure, decided to draw up an opinion on the Current situation and prospects for traditional energy
sources — coal, oil and natural gas — in a future energy mix.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion 1 September 2005. The rapporteur
was Mr Wolf.

At its 421st plenary session, held on 26-27 October (meeting of 26 October 2005), the European
Economic and Social Committee adopted the following opinion by 119 votes to 1, with 3 abstentions.

The EESC has recently adopted a number of opinions (1) on
energy issues. Since by far the largest share of energy supply
still comes from the fossil fuels: coal, oil and natural gas, and
the question of resources and the release of greenhouse gases
associated with their use has been the subject of political
discussion, the present opinion evaluates these ‘classic’ fuels.

This should be followed by an opinion on ‘The EU's Energy
Supply: Strategy for an Optimum Energy mix’ which builds on
and summarises the findings of the series.

The strategic aim of this series of opinions, which an opinion
on renewable energy sources and the present opinion bring to
a conclusion, is to provide a solid basis for establishing realistic
options for a future energy mix.

(1) See Promoting renewable energy: Means of action and financing
instruments (OJ C 108 of 30.4.2004); The issues involved in using
nuclear power in electricity generation (OJ C 112 of 30.4.2004);
Fusion energy (OJ C 302 of 7.12.2004) and The use of geothermal
energy (OJ C 110 of 30.4.2004).

Table of contents

1. Summary and recommendations

2. The energy issue