The six-month German EU Presidency has shown interest in possible European action on this issue.

In doing so, it bases itself on the well-known judgment of its Federal Court of 12 July 2018 (Facebook). This judgment opts for the prevalence of inheritance rules by understanding that it is possible to inherit the contractual position on a social network account and that inheritance law must prevail over telecommunications secrecy regulations and even over data protection legislation.

The Court further held that the general terms and conditions that excluded this contractual relationship from the inheritance were abusive, as they did not pass the control of content provided for in its legislation.

The choice for the digital heritage allows a solution to be found to certain issues within the content of the concept of inheritance or estate in each Member State (Art. 3.1 g), first indent, of Regulation (EU) 650/2012), which can be determined by each national law once the autonomous concept has been respected. succession mortis causa (Judgment of the CJEU of 12 October 2017, in case C-218/16, Kubicka)

Digital inheritance involves both the transfer of intangible digital assets (such as cryptocurrencies or data of economic value) and the defence of the memory or interests of the deceased in contractual positions.

Three standards are relevant from a European perspective.

The first, Regulation (EU) 2016/679 (General Data Protection Regulation), which in its recital 27 highlights its non-application to the protection of personal data of deceased persons, which is a matter for the Member States. In Spain, Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the guarantee of digital rights, art. 3 refers to the data of deceased persons, extending some of its solutions to disabled persons or minors. In essence, persons related to the deceased for family or de facto reasons, as well as their heirs, may request access to the personal data of the deceased and, where appropriate, their rectification or deletion, unless expressly prohibited by the deceased or provided for by law, which shall not affect the right of the heirs to access the data of the deceased's estate. Without prejudice to the express designation and instructions given by the deceased. In the case of minors, these powers may also be exercised by their legal representatives or, within the framework of their powers, by the Public Prosecutor's Office.

(Note that no priority is established, giving rise to a complicated multiple legitimation).

In Spain, moreover, a territorial conflict additionally arose that gave rise to the Constitutional Court's ruling 7/2019 of 17 January 2019. The judgment determined the partial nullity of Law 10/2017, of 27 June, on digital wills and amending the second and fourth books of the Civil Code of Catalonia.

Secondly, relevant for determining the concept of digital heritage is Directive (EU) 2019/770 of 20 May 2019 on certain aspects of contracts for the supply of digital content and services, which in its Recital 53 and Articles 2.13 and 10 delimits the proprietary nature of digital content by reference to the period of time commensurate with the purposes of information through durable media or in relation to third party intellectual property rights.

Once the content of assets (goods, rights and shares) has been determined in this sphere, which includes digital wills in relation to contracts with operators (such as social media activity), Regulation (EU) No 650/2012 on international successions is relevant, especially Art. 63, which is supplemented by Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the forms referred to in the Regulation (especially relevant is Form V Annex VI).

In conclusion, on the basis of European inheritance law, there is nothing to prevent a judgment of law by the national authority in relation to the inclusion in the estate of a digital asset, the legitimation of an executor or the digital will of the deceased contained in a disposition mortis causa, which may be eligible for inclusion in a certificate of succession and enjoy its evidentiary effect in another Member State.

Is European action necessary or possible? It would be necessary to carry out a prior study, resulting in the need for an instrument and its proportionality. Both from the perspective of the patrimonial elements, the powers of the successors or executors, and the instructions given by the testator in a disposition mortis causa, it can be considered that there are sufficient tools for the defence of memory and succession in digital assets to be articulated.

But national competences should not be forgotten, as is clear from the aforementioned recital 27 of Regulation (EU) 2016/679.

Also leading to national jurisdiction are the legal tools that allow the defence of data and standing against employers of a minor or vulnerable adult (Some Member States, currently not Spain, participate in the Hague Convention of 13 January 2000, on the international protection of adults (www.hcch.net ) but this Convention does not offer a material solution).

Therefore, it is considered that a dissemination action would be relevant.

There remain, of course, unresolved actions against the multitude of jurisdictions that may come into play when it comes to dealing with digital inheritance and memory against technology giants or simply against operators in a different non-European jurisdiction to which the digital content or succession leads.

Here action by the European Union will not solve the problems and action in an international forum is needed, perhaps the United Nations will be able to do so.