Thursday, May 15, 2014
Dan Andrei Popescu (Independent) recently published an article entitled, The European Law of Inheritance or How to Cross the River by Feeling the Stones. The Succession Law between the Trauma of Tradition and the Modernity Perspective. Principles of the European Regulation of Succession (April 7, 2014). Provided below is the abstract from SSRN:
In this study, the author aims to provide a functional review of the European Regulation devoted to international succession – Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession – based on the principles thereof and the impact that the new codification will exert on the expectations of those intending to plan their successional devolution and transmission.
Succession law can not be regarded "separately", displaced from the realities of the world we live in, detached from the developments occurring in the other branches of law, in particular in the institution of the family, which it largely serves and to which it is so closely connected. We are witnessing, on the one hand, a tendency to "contractualize" the institution of marriage (a greater freedom to dissolve marriage, according to a generally simple, quick, and smooth procedure sanctioning the so-called right to divorce) and, on the other hand, a strong influence from foreign codifications related to an enhanced freedom to dispose by acts mortis causa, thereby facilitating succession planning. The very nature of succession appears to have changed over time. Whereas, for a long time, the legacy would generally express the fruit of the work of several generations (thus having a linear character), also including the goods or values that de cujus, in turn, had reaped from his predecessors, nowadays, by contrast, succession shows a predominantly acquired character, the author of the succession being the one who earned that which constitutes the object of such transmission. Hence the need for more freedom to dispose by acts mortis causa. And this freedom is materialized, in terms of private international law, by the autonomy of will recognized in this area, consisting in the testator’s right to choose the law applicable to his succession. Although, as we shall see, there is no question of a discretionary right, of a boundless freedom, yet rather of a limited, contained autonomy of will, this element of novelty should nevertheless be noted in an area such as succession, for which, in most Member States, such possibility was de plano excluded. Succession law must therefore represent a balanced mixture between tradition and innovation, a harmonious compilation of the old and of the new, an intermingling between everything that must be maintained and is not perishable, between what semper stands for, that is, "the fire of tradition", on the one hand, and, on the other hand, that which is expressed by the concerns and tendencies that define modernity, reflected in the current stage of evolution of society, namely that novum which should allow a contemporary experience of the old. "Semper" and "novum" thus become part and parcel of the modernity of the present, "semper" legitimizing the "novum", and the latter, while maintaining the topicality of the former, reconciles it with modernity and thus restores its life expectancy.
Succession law is a law of traditions, inherited and perpetuated, specific to each country. Therefore, one can not speak of a jus successionis europaeum common to all the countries integrated into the great European family. The need for flexibility and predictability is ensured by means of private international law, through the unification of the choice of law rule and of the rules of international jurisdiction in matters of succession. The European legislator extends the autonomy of will to matters of succession, yet unlike in other institutions, we are speaking here of a professio juris which is limited, reduced to the law of the state whose nationality the author of the legacy enjoyed, either at the time of his choice, or at the time of his death. Such strict limitation proves the concern related to possible fraudulent maneuvers of de cujus, attempted in order to escape the mandatory provisions regarding the successional reserve. On the other hand, unlike in contract matters, where such propensity is somewhat tempered by the antagonism of interests opposing the parties to the contract, in the case of succession, the subject of this choice is the testator, his will being impossible to "control" or to temper by the successors interests. The idea of legal proximity was considered by the European legislator in establishing the basic rule – the last habitual residence of the deceased, applicable both in matters of international jurisdiction (Article 4) and, in the absence of choice, to the issue of determining the law applicable to succession – Article 21(1).