loader image

Got an Idea? We would Love to Chat

Making things with love in Berlin

Algunos principios para el Derecho digital europeo

El Derecho digital, en cuanto tal, no tiene carta de naturaleza, por lo que aún es más difícil inducir de los instrumentos europeos con los que contamos hoy, valores o normas de conducta, que sean susceptibles de ser considerados principios generales en una supuesta...

La nueva normativa europea sobre la digitalización de la Justicia

A finales de diciembre de 2023 se publicó el paquete europeo sobre digitalización de la Justicia integrado por el Reglamento (UE) 2023/2844, de 13 de diciembre de 2023 y la Directiva (UE) 2023/2843 de igual fecha, ambos negociados con el fin de reforzar la cooperación...

Sostenibilidad y Derecho de Sociedades Europeo

Los días 12 y 13 de diciembre de 2023 en la sede de la Real Academia de Jurisprudencia y Legislación de España, se celebró el Congreso Internacional “Nuevas orientaciones en el Derecho internacional: digitalización, sostenibilidad, derechos humanos y cooperación”.  En...

R. (EU) 650/2012, on successions Mortis Causa, ten years later.
Feb 18, 2022

In 2022, it will be ten years since the adoption of Regulation (EU) No 650/2012 on succession. mortis causa international. In the first half of 2012, under the Danish presidency - a Member State that does not participate in civil justice according to its position in the Treaties - the normative negotiation was closed in trilogues, to conclude the formal act on July 4, already under the Cypriot presidency. Prior to that, since the presentation of the proposal during the Swedish presidency in the second half of 2009, the Spanish, Belgian, Hungarian and Polish presidencies followed in 2010 and 2011.

(EU) 650/2012, had a complicated negotiation process, to the finalization of which the Spanish presidency in the first half of 2010 contributed decisively with its drafting committee, which laid the foundations for a large part of the text that was finally approved.

The new rules of the Regulation, on such essential issues as international jurisdiction and the positive and negative delimitation of the Regulation; special successions and the applicable law, defining the elements of habitual residence and introducing the professio iuris Finally, it is embodied in Art. 22 and, temporarily, in Art. 83 of the Regulations.

The negotiation, which lasted two and a half years, was difficult. It affected national traditions regarding inheritance and wills (dispositions mortis causa) so that several red lines of the Member States had to be faced.  Examples are the habitual residence as the main criterion for both jurisdiction and applicable law; the introduction of partition in the scope of applicable law; the exclusion of legitimacies from restrictive matters constituting public policy; the exclusion of the registry property regime and the European Certificate of Succession itself.

On the other hand, the reintegration of the estate (Clawback) and the administration of the inheritance according to the applicable law derived from the Regulation and not according to the situation of the assets, made it impossible to opt-in the United Kingdom, then a Member State, and Ireland, since the tandem principle - forum-ius, typical of those systems - was broken. The attempt to retain these two States led to the introduction of two distorting provisions of the Regulation.

The first is Art. 34 regarding the resubmission, which was not contemplated in the proposal and which aims to facilitate a possible consistency in exchange for splitting the succession, the interdiction of which was precisely an essential reason for the proposal.

The second is Art. 29, of useless wording concerning the administration of the inheritance.

In the field of applicable law the position of the widowed spouse, as interpreted by the judgment Mahnkop En el ámbito de la ley aplicable, la posición del cónyuge viudo, según la interpretación de la sentencia Spanish clause, the fact that it was designed for Spain and possibly for the United Kingdom has generated, at a national level, strong doctrinal divergences - we have dealt with both issues in this Court - without the Court having had the opportunity to pronounce itself on the last issue, which is of great importance.

The Regulation on international successions is undoubtedly a success of the European area of civil justice, given its daily application, especially in the extrajudicial sphere. In Spain, both notaries and registrars, in their respective spheres of competence - generally ad extra for notaries and ad intra for registrars - issue or receive certificates of succession.

In addition, notaries also settle international inheritances, if the parties concerned so decide, and also draw up testamentary or, where appropriate, contractual dispositions of property with universal effect, which are provided for in the regulations (§ 20).

Its preparatory work, especially the Green Paper, made it clear that the Regulation should deal with successions, but also with wills (later redefined as dispositions mortis causa, Art. 3).

The importance of these, reflected in the substantive and formal validity - Arts. 24 to 26 - or in the reintegration of the estate in Art. 23, is underlined in Recital 80, which refers to the necessary foreseeability of succession - the organisation by European citizens of their succession in the context of the Union.

The autonomy of the provisions mortis causa The new text of the Regulation is particularly significant in relation to the interpretation of Art. 36 on multi-legislative States, as its specific provisions 24 to 26 are located in Chapter III itself, a singularity that reinforces the transitional regime (Art. 83.3).

In any case, there can be no doubt that the key to the evolution and current application of the Regulation lies in the interpretation of the Regulation by the Court of Justice of the European Union.

Indeed, the Court interprets and sometimes reinterprets the Regulation.

Consistent with their practical importance, the cases before the Court are growing and of the utmost interest.

The first judgment was Kubickaof 12 October 2017 on European succession property. It is followed by Mahnkop; Oberle, Musial-KargBrisch. Already without subjective designation: W.B ; E.E. Lithuania1 July HCC. VL and 9 September 2021 UMV HW, with several cases still pending.

Finally, the Regulation presents a new adjustment in its application, following the adoption of Regulations (EU) 2016/1003 and 2016/1104, Regulations (EU) 2016/1003 and 2016/1104, Regulations (EU) 2016/1003 and 2016/1104. Couples, in relation to the economics of marriages and registered partnerships, as these instruments have been approved through the enhanced cooperation procedure, creating a variable geometry in their succession application.

It will be difficult in the future for the European Union to adopt an instrument of the same scope as Regulation (EU) 650/2012.

Ten years later, its practice shows that further implementation measures are still required, especially with regard to the security of certificates of inheritance and their publicity, as well as the proper interconnection of registers of dispositions. mortis causa, that include and deepen digital wills. It could be that the Spanish Presidency in the second half of 2013, eleven years later, will once again provide a service to European citizens by deepening the correct application of the Regulation.

en_GB