Commission staff working document accompanying the  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 successions and on the introduction of a European Certificate of Succession - Summary of the impact assessment {COM(2009) 154 final) {SEC(2009) 410}
Date: 2009-10-14
Institutions: European Commission
Subjects: European judicial area, approximation of laws, area of freedom, security and justice, impact study, inheritance, law of succession, mutual recognition principle

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.10.2009 
SEC(2009) 411 final 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying the  

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 successions and on the introduction of a European Certificate 
of Succession 

SUMMARY OF THE IMPACT ASSESSMENT 

{COM(2009) 154 final) 
{SEC(2009) 410} 

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1. 

PROCEDURAL ISSUES AND THE CONSULTATION OF INTERESTED PARTIES 

The  Impact  Assessment  has  been  prepared  on  the  basis  of  a  Study  (hereinafter  "the 
external study")1 which was undertaken for the Commission by an external contractor with 
the input of the Inter-service Steering Group convened by the Directorate General Justice, 
Freedom  and  Security.  Representatives  of  the  Directorates-Generals  Enterprise  and 
Industry,  Internal  Market  and  Services  and  Taxation  and  Customs  Union,  as  well  as  the 
Secretariat General and the Legal Service of the Commission participated.  

The Impact Assessment was informed by a "Study on Conflict of Law of Succession in the 
European  Union",  prepared  by  the  German  Notary  Institute  in  November  20022,  which 
confirmed the existence of practical problems in devolution of estates and drafting of wills 
in cross-border successions. It was also informed by the analysis of the 60 responses3 to 
the  Commission's  Green  Paper  on  Succession  and  wills  [COM(2005)  65]  on  March  1, 
20054. Finally it was informed by the work of an expert group (PRM III/IV) set up by the 
Commission  and  made  up  of  experts  acting  independently  of  the  Member  States, 
representing  the  different  legal  traditions  of  the  EU.  A  public  hearing  on  the  applicable 
law on successions was held in 2006.  

2. 

PROBLEM DEFINITION 

2.1. 

The causes of the current problems  

The outcome of international successions in the EU often does not meet the expectations 
of those who die. In addition the rights of (potential) heirs, persons formally or otherwise 
related to the deceased, private and public creditors, etc. are not fulfilled. 

Although  their  harmonisation  remains  outside  the  competence  of  the  European 
Community, it is important to understand that the starting point for the problems currently 
faced by citizens  are the national substantive rules on successions which diverge widely 
between the Member States. 

2.1.1.  Divergences in national substantive rules on successions 

1. 

The shares that the family members inherit vary widely.  

1 

2 
3 

4 

EPEC,  Impact  Assessment  Study  on  Community  Instruments  on  Successions  and  Wills,  under 
framework contract No DG BUDG No BUDG06/PO/01/Lot no.2, ABAC 101908, available at the 
following website: […]. 
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm. 
at: 
Available 
news_contributions_successions_en.htm. 
Available at: http://europa.eu/scadplus/leg/en/lvb/l16017.htm. 

http://ec.europa.eu/justice_home/news/consulting_public/successions/ 

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2. 

3. 

4. 

5. 

While all Member States recognize testaments, some Member States accept more 
elaborate instruments to plan successions (e.g. joint and reciprocal wills) which 
are not recognised in all Member State.  

All Member States except for the UK (specifically, England and Wales) grant a 
compulsory  share  of  the  inheritance  to  close  family  members,  regardless  of 
any testamentary dispositions by the deceased.  

The procedural rules governing succession differ among Member States. 

The  rights  of  unmarried  or  same-sex  partners  vary  widely  between  the 
Member States.  

2.1.2.  Negative consequences faced by citizens 

Problem  1  -  Difficulties  for  citizens  to  predict  which  country  and  body  has 
competence  to  handle  the  succession.  The  authorities  of  two  ore  more  Member  States 
may  accept  to  handle  the  same  succession  (positive  conflict  of  jurisdiction)  or  none  of 
them might accept to handle it (negative conflict of jurisdiction). Even once citizens have 
identified the Member State the authorities of which have competence, they often do not 
this  Member  State  (court,  notary,  public 
know  which  body 
administration). 

is  competent 

in 

Problem 2 - Conflicting laws applicable to the same succession. In matters of private 
law, a court is not obliged to apply the law of its own country. Member States therefore 
have rules to decide the law of which country should be applied to which case ("conflict of 
laws  rules").  In  matters  of  successions,  these  rules  differ  from  one  Member  State  to  the 
other.  Since  the  authorities  of  several  Member  States  may  be  competent  to  deal  with  a 
given  succession,  they  might  come  to  different  results  as  regards  the  question  “what 
belongs  to  whom”.  This  situation  creates  legal  uncertainty,  prevents  efficient  estate 
planning and the mutual recognition of judgments between Member States. 

Problem  3  -  Insufficient  (limited)  freedom  of  choice  of  law  for  the  testator.  When  a 
citizen taking advantage of the Internal market is aware of the differences in substantive 
succession  law  and  in  the  conflict  of  laws  rules,  he/she  may  wish  to  get  around  this  by 
drawing up a will and choosing a single law applicable to his/her entire estate. However, 
most  Member  States  do  not  yet  allow  a  person  to  choose  the  law  applicable  to  his/her 
succession5.  

Problem 4 - Restricted recognition and enforcement of decisions and documents. A 
judgment given by a court in one country is not automatically recognised and enforced in 
another  country  the  courts  of  which  may  render  a  conflicting  judgment  on  the  same 
question. There is also a lack of recognition and enforcement of documents prepared by 
notaries and other authorities. 

5 

No  choice  of  law  admitted  in  Austria,  Cyprus,  France,  Greece,  Ireland,  Latvia,  Lithuania, 
Luxembourg,  Poland,  Portugal,  Slovakia,  Slovenia,  Spain,  Sweden  and  Czech  Republic. 
Information is unavailable for Hungary, Malta and Northern Ireland. 

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Problem  5  -  Restricted  recognition  of  the  status  as  an  heir  or  as  an 
administrator/executor. Currently there are various types of evidence to prove the status 
as an heir or an administrator of a succession in the Member States. Documents executed 
in one Member State are normally not automatically recognised in other Member States. 
This  gives  rise  to  duplication  of  procedures  to  prove  one's  status  as  an  heir  or 
administrator in the country where the property is situated and additional costs and time 
delays. 

Problem 6 – Difficulties identifying wills abroad. Even in purely national cases, it is not 
always easy for heirs to know whether the deceased had established a will. This question 
is  even  more  problematic  for  citizens  looking  for  a  will  abroad.  This  situation  triggers 
severe  time  delays  and  greater  cost,  and  uncertainty  as  to  whether  other  heirs  will  step 
forward. 

2.2. 

Size of the problems 

It is difficult to assess the scope of the problems identified due to lack of relevant statistics 
and limited empirical data. The consultations show however that practical importance of 
the legal insecurity faced by citizens. 

Around 4.5 million people die each year in the EU. Assuming that the value of the average 
estate  is  about  137,000  euro  (about  5.5  times  the  average  per  capita  gross  national 
income), then the total value of the estates per annum would be 646 billion euro.  

It can also be reasonably assumed that around 9-10% of the total number of successions 
(ca.  450,000)  involves  an  ‘international’  dimension.  The  average  value  of  such  estates 
would be around double the value of an average estate (i.e. 274,000 euro), totalling some 
123.3 billion euro per annum. 

These estates are liable to problems. Even if resolved in a reasonable manner the costs of 
legal  fees  might  be  from  2%  (2.466  bn.  euro)  to  as  much  as  5%  of  the  total  value  of 
international successions (6.165 bn. euro). An average of 3% (3.699 bn. euro) of the value 
of  estates  can  be  considered  realistic.  Moreover,  the  costs  of  delays,  which  may  be 
measured in terms of years rather than months, might be of the same order of magnitude. 

Addressing  the  problems  could  thus  generate,  as  calculated  by  the  external  contractor, 
benefits to EU citizens of in the order of some 4 bn. euro per annum.  

3. 

OBJECTIVES 

The overall objective of the Proposal is to contribute to the creation of a genuine European 
area of civil justice in the field of successions. 

The general, specific and operational objectives are summarised in the following table: 

Overview of general, specific and operational objectives 

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General objectives 

Specific objectives 

Operational objectives 

(cid:121) 

(cid:121) 

allow 

citizens 
and 

to 
To 
efficiently 
to 
plan 
organise  their  succession  in 
advance  in  a  cross  border 
context 

To  increase  the  likelihood 
that  the  rights  of  potential 
heirs,  persons  formally  or 
otherwise 
the 
related 
deceased,  private  and  public 
creditors etc. are respected in 
an efficient way 

to 

situation  where  parallel 
To  achieve  a 
proceedings  do  not  occur  and  where  different 
substantive  laws  are  not  applied  to  the  same 
international succession 

To adopt common rules on jurisdiction 

To adopt common rules on applicable law 

To  provide  a  (limited)  choice  of  law  for  the 
testator 

To  introduce  harmonised  rules  providing  a 
limited choice of law to the testator 

To  ensure  the  recognition  of  rights,  relevant 
acts and decisions regarding successions. 

To  harmonise  rules  on  the  recognition  and 
enforcement of judgments, other decisions and 
authentic acts / deeds  

To  ensure  recognition  of 
administrators/executors  

the  powers  of 

To ensure recognition of the status as an heir  

To increase the accessibility of information on 
the existence of wills abroad 

To  create  a  European  system  for  registering 
wills  and  obtaining 
the 
existence of wills abroad. 

information  on 

4. 

POLICY OPTIONS 

4.1. 

Description of the policy options 

The policy options have been split into two different sets, in order to take account of the 
different options to be considered (see table below). 

Definition of policy options that address problems caused by national legislative differences 
concerning successions with transnational elements (Policy Option A) 

No common EU level action 

(cid:121) 

Policy Option A.1: Status quo 

EU legislative action 

(cid:121) 

(cid:121) 

(cid:121) 

(cid:121) 

(cid:121) 

Policy  Option  A.2:  Harmonisation  of  jurisdiction  rules  and  introduction  of  rules  on 
automatic  recognition  and  enforcement  of  judgments,  other  decisions  and  authentic 
acts/deeds 

Policy Option A.3: Harmonisation of conflict of law rules 

Policy  Option  A.4:  Harmonisation  of  conflict  of  law  rules  and  introduction  of  a 
European Certificate of Heir and Executor / Administrator in transnational successions 

Policy Option A.5: Harmonisation of conflict of law rules and jurisdiction rules 

Policy  Option  A.6:  Harmonisation  of conflict  of  law  rules  and  jurisdiction  rules,  and 
introduction  of  rules  on  automatic  recognition  and  enforcement  of  judgments,  other 
decisions and authentic acts/deeds (A.2 plus A.3) 

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(cid:121) 

Policy  Option  A.7:  Harmonisation  of conflict  of  law  rules  and  jurisdiction  rules,  and 
introduction  of  rules  on  automatic  recognition  and  enforcement  of  judgments,  other 
decisions  and  authentic  acts/deeds,  and  introduction  of  a  Certificate  of  Heir  and 
Executor / Administrator in transnational successions (A.2 plus A.4) 

Non-legislative action 

(cid:121) 

(cid:121) 

Policy  Option  A.8:  Establishment  of  a  database  /  knowledge  management  system  on 
conflict of laws, jurisdiction rules and competent bodies 

Policy  Option  A.9:  EU  wide  information  campaign  on  succession  (legislation  and 
existing / forth-coming instruments) 

Definition  of  policy  options  that  address  problems  of  identifying  wills  abroad  (Policy 
Option B) 

No common EU level action 

(cid:121) 

Policy Option B.1: Status quo 

EU level action (legislation and funding) 

(cid:121) 

(cid:121) 

(cid:121) 

Policy  option  B.2:  Commission  Recommendation  on  the  establishment  of 
interconnected  national  registers  of  wills  and  organisation  of  information 
campaigns.  

Policy  option  B.3  Compulsory  establishment  of  interconnected  national 
registers of wills.  

Policy option B.4 Establishment of a central EU Register of wills.  

Non-legislative action 

(cid:121) 

(cid:121) 

Policy  Option  B.5:  Creation  of  a  webpage  on  existing  registers  of  wills  and 
national rules. 

Policy  Option  B.6:  National  information  campaigns  on  wills  (legislation  and 
existing / forth-coming instruments) 

4.2. 

Comparison of the options 

Table 1 provides a comparison of the ‘ratings’ of the nine A policy options.  

Table 2 compares the ratings of the six B policy options. 

The  policy  options  are  categorised  according  to  their  potential  to  meet  the  objectives 
defined above in section 5, with ten checkmarks (√√√√√√√√√√) indicating that an option fully 
meets all objectives. 

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Table 1 – Comparison of ratings of policy options A 

Objective/costs 

Policy Option 
A.1 

Policy Option 
A.2 

Policy Option 
A.3 

Policy Option 
A.4 

Policy Option 
A.5 

Policy Option 
A.6 

Policy Option 
A.7 

Policy Option 
A.8 

Policy Option 
A.9 

(Status quo) 

(Jurisdiction 
rules & 
recognition) 

(C-O-L rules) 

(C-O-L rules & 
certificate) 

(C-O-L rules & 
jurisdiction 
rules) 

(A.2 plus A.3) 

(A.2 plus A.4) 

(Database)  

(National 
information 
campaigns) 

To  achieve  a 
situation  where  parallel 
proceedings  do  not  occur  and  where  different 
substantive  laws  are  not  applied  to  the  same 
international succession  

To  provide  a  (limited)  choice  of  law  for  the 
testator 

To ensure the recognition of:  

(i) 

(ii) 

Judgments,  other  decisions  and 
/  deeds  on 
authentic 
international successions; 

acts 

The 
administrators/executors; and, 

powers 

of 

(iii) 

The status as an heir 

To increase the accessibility of information on 
the existence of wills abroad 

Total score: 

Economic effects 

0 

0 

0 

0 

0 

Present:  4  bn 
euro/year; 
potential 
doubling  of  costs 
in 10 years. 

√√ 

0 

√√√√ 

√√√√√√ 

√√√√√√√ 

√√√√√√√√ 

√√√√√√√√√√ 

√√√√√ 

√√√√√√ 

√√√√√ 

√√√√√√√√√ 

√√√√√√√√√√ 

√ 

0 

√√√√√ 

√√ 

√√√√√√ 

√√√ 

√√√√√√√√ 

√√√√√√√√√√ 

0 

0 

7 

– 

11 

– 

18 

– 

10 

– 

25 

– 

30 

0 

1 

√ 

0 

0 

0 

1 

Costs savings: 
Max 10% 

Costs savings: 
Max 15% 

Costs savings: 
Max 15% 

Costs savings: 
Max 15% 

Costs savings: 
Max 20% 

Costs savings: 
Max 30% 

Costs savings: 
Insignificant 

Costs savings: 
Insignificant 

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Objective/costs 

Policy Option B.1 

Policy Option B.2 

Policy Option B.3 

Policy Option B.4 

Policy Option B.5 

Policy Option B.6 

Table 2 – Comparison of ratings of policy options B 

(Status quo) 

(EC Recommendation 
on interconnected 
national registers & info 
campaigns) 

(Compulsory 
establishment of 
national registers of 
wills that are 
interconnected) 

(EU central register of 
wills) 

(Webpage on national 
registers of wills and 
national rules) 

(National information 
campaigns) 

To achieve a situation where parallel proceedings do 
not occur and where different substantive laws are not 
applied to the same international succession  

To provide a (limited) choice of law for the testator 

To ensure the recognition of:  

(i) 

(ii) 

(iii) 

other 

Judgments, 
and 
authentic  acts  /  deeds  on  international 
successions; 

decisions 

The 
powers 
/executors; and, 

of 

administrators 

The status as an heir 

To  increase  the  accessibility  of  information  on  the 
existence of wills abroad 

Total score 

Economic effects 

0 

0 

0 

0 

√√ 

0 

√ 

√√√ 

√√√√ 

0 

√ 

0 

√ 

√√ 

√√√ 

√√√√ 

√ 

0 

0 

√ 

√ 

0 

0 

√ 

0 

5 

7 

9 

2 

2 

Present:  4  bn  euro/year; 
potential 
of 
costs in 10 years. 

doubling 

Costs savings:  

Costs savings: 

Costs savings: 

Costs savings:  

Costs savings:  

Max 1-2% 

Max 1-2% 

Max 2% 

Insignificant 

Insignificant 

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4.3. 

The preferred option 

In the light of the assessment in Table 1 and 2 the preferred option is a combination of Policy 
options A7 and B.2. The first would address current problems as well as possible and lead to 
the greatest cost reductions (maximum 30%). Indeed, it is in effect the most ambitious option 
and  so  therefore  represents  further  development  of  the  options  identified  in  terms  of  the 
challenges  that  it  is  designed  to  address.  Although  Policy  option  B.2  does  not  receive  the 
highest rating, it is the preferred option on the basis that the identification of wills is primarily 
a  national  problem  and  is  likely  to  remain  such  even  in  the  long  term  and  because  it  is  not 
compulsory to register wills (which means that the register can only confirm that no will was 
registered, not that no will exists). This analysis is confirmed by stakeholders. 

4.4. 

The potential scale and nature of impacts of the preferred option 

The  preferred  policy  options  would  eliminate  the  potential  for  conflicts  of  jurisdiction.  It 
would allow for a faster finalisation of the succession, as the competent authorities would no 
longer have to deal with potentially contradictory national rules to identify the substantive law 
governing  the  question  of  who  inherits.  The  introduction  a  limited  choice  of  law  for  the 
testator would allow citizens to better plan their succession  

The  recognition  of  the  status  of  an  heir  or  the  powers  of  executors/administrators  and 
decisions would be ensured. As a consequence, legal fees and time delays would be reduced. 

The  Commission  Recommendation  would  speed  up  Member  States'  creation  of  registers  of 
wills  that  are  compatible  and  interoperable,  facilitating  the  identification  of  wills  in  other 
Member  States.  Information  campaigns  could  lead  a  higher  number  of  citizens  to  draw  up 
wills  and  register  them,  speeding  up  the  succession  proceedings,  and  thereby  lead  to  less 
delay and decreased legal costs. However, the positive impact of the register may be limited 
because there would be no obligation to register wills. 

Overall,  the  preferred  option  would  increase  the  likelihood  that  the  rights  of  all  persons 
involved in the succession would be fulfilled in an effective and efficient way. 

The  preferred  policy  option  respects  the  fundamental  rights  of  the  Charter  of  Fundamental 
Rights of the European Union.  

4.5. 

The costs of the preferred option 

In summary, the preferred option could lead to cost reductions of up to an estimated 32% of 
the costs of € 4 bn. caused by the current problems, i.e. € 1.3 billion. 

The  process  of  adoption  and  implementation  of  the  preferred  option  would  create  financial 
costs  both  at  the  EU  level  and  at  national  level,  mainly  costs  for  administrative  work  to 
produce the necessary legislation, the costs for establishing and running a register of wills and 
for information campaigns.  

Although  the  preferred  option  through  harmonisation  of  applicable  law  would  result  in  a 
reduction of fees for legal professionals, it would nevertheless also increase their turnover in 
view  of  the  rise  in  value  of  legacies  and  the  increasing  numbers  of  international  cases.  In 
addition, the new rules will improve predictability for citizens. It is likely that more of them 
will  wish  to  organise  their  succession  in  advance,  therefore  using  the  services  of  legal 

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professionals. Within the legal profession, as with every other professional service, there are 
always  market  changes,  and  the  magnitude  of  those  associated  with  the  preferred  option  is 
likely to be small and gradual6.  

Since rules on taxation are expressly excluded from the scope of the proposed Regulation, the 
preferred  option  would  be  tax  neutral.  It  would  therefore  not  entail  any  changes  to  the 
Member  States'  national  legislation  on  inheritance  taxation.  This  is  because  the  rules 
determining  which  Member  State  is  competent  to  collect  inheritance  taxes  on  a  given 
succession  (resulting,  in  general,  from  bilateral  conventions),  are  totally  independent  from 
those rules determining the civil law governing this succession. 

The  preferred  option  would  potentially  have  indirect  implications  on  the  amount  of 
inheritance tax revenue collected by a given Member State (e.g. for a bank account, if, under 
the law applicable today the heir is a person living in Member State A, whereas, under the law 
applicable under the future Regulation, the heir is located in Member State B, Member State 
A  will  not  longer  be  able  to  collect  inheritance  taxes).  However,  these  effects  would  be 
marginal and indirect. 

The  proposed  Regulation  does  not  contribute  to  reducing  the  complexities  of  tax  systems 
applicable  to  international  successions  and  to  preventing citizens  of  being  subject  to  double 
taxation. Indeed, it is clearly impossible, for legal and political reasons, to modify the existing 
regime in the framework of the present Regulation. Inheritances in a cross-border context can 
then  give  rise  to  mismatches  between  national  taxation  regimes  which  can  result  in  double 
taxation  or  discrimination.  The  Commission  intends  to  bring  forward  a  communication  to 
address these issues during 2010. 

4.6. 

EU added value 

The  preferred  option  would  generate  significant  EU  added  value.  It  has  the  potential  to 
promote  trust  in  the  internal  market  and  facilitate  mobility  of  EU  citizens.  The  problems 
addressed are in part a consequence of the internal market, if they are not solved, the trust in 
the  EU  internal  market  and  the  EU  area  of  freedom,  security  and  justice  without  internal 
borders may be damaged. Cross-border successions are both more costly and time-consuming 
for  citizens  than  national  successions.  The  preferred  option  would  facilitate  the  life  of  the 
modern and mobile EU citizen. 

5. 

MONITORING AND EVALUTION 

In order to monitor the effective implementation of the Regulation as well as the success of 
the Recommendation on the creation of interconnected registers of wills and the information 
campaigns, regular evaluation and reporting by the Commission will take place. The external 
study  contains  many  useful  suggestions  on  potential  monitoring  and  evaluation  instruments 
and concrete indicators that will be taken into consideration by the Commission. 

6 

See also Annex 4 for more information. 

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