A jurisdictional engine

Fri 22 July 2022, Philippe Ropenga EU Succession Regulation 650/2012

As you know this blog has taken the view that the EU Succession Regulation 650/2012¹ was a vehicle designed to deepen market integration by improving circulation across the EU. It has been written here in 2020 that courts played a great role in powering it by applying local solutions.² This impression has been caused by Re Mahnkopf that had been analysed on this blog in 2018.³. Four years after the 2018 case, this impression has been confirmed by the EUCJ in VA and ZA v. TP⁴.

"XA, a French national, died on 3 September 2015, in France. Since 1981, he had been resident in the United Kingdom, where he had married TP in 1996. Having fallen ill, he had returned to France in order to live with one of his children as from August 2012, in a flat acquired two months earlier through a real estate company in which he was a partner.

XA was survived by a wife, TP, a United Kingdom national, and three children from his first marriage, YA and the appellants in the main proceedings. YA having died in the meantime, the appellants in the main proceedings have stated that they also act as successors in title to their brother. XA’s estate includes assets located in France."⁵

Article 4 of the Succession regulation reads as follows:

"The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole."

This case reminds that the question of habitual residency is the first to be solved by a court applying the Regulation since the answer to it determines what court has jurisdiction and what law should be applied.⁶

What is the habitual residency of a French national who married a British national, lived with her for around twenty-four years in the UK and has returned to France, knowing that he was ill, to live there with one of his children in an immovable property owned by a company in which he was a partner? The jurisdiction of first instance found that the habitual residency was located in France while the Court of Appeal upheld the decision to rule that it was in the UK.⁷ No choice of law has been made according to Article 22 in this case. Hence, one could not rely on Article 7 to decide that courts of the State that had been designated under Article 22 have jurisdiction. In substance, a court has been seized under article 4 and it has found that the deceased habitual residency at the time of his death was not located in a Member State. What provision can a court rely on to answer the question of jurisdiction when no choice of law has been made? EUCJ has found that a court should apply Article 10, §1(a) of its own motion. It reads as follows :

"1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:

(a) the deceased had the nationality of that Member State at the time of death…"

This solution is obvious only when one admits that nationality should be considered in cases where no choice of law has been made. The solution is justified by market integration and freedom of circulation. The EUCJ highlights that:

"In that regard, it must be noted that the use of the term ‘nevertheless’ in Article 10(1) of Regulation No 650/2012 suggests that that provision refers to a rule of jurisdiction that is equivalent and supplementary to the rule of general jurisdiction established in Article 4 of that regulation, with the result that, where that latter article is inapplicable, it is appropriate to ascertain whether the jurisdictional criteria referred to in Article 10 of that regulation are met.

That interpretation is, moreover, supported by the objective pursued by Regulation No 650/2012, as is apparent from recital 7 thereof, consisting in facilitating the proper functioning of the internal market by removing the obstacles to the free movement of persons who wish to assert their rights arising from a cross-border succession, in particular, by ensuring that, in the European area of justice, the rights of heirs and legatees, of other persons close to the deceased and of creditors of an estate are effectively guaranteed (see, to that effect, judgment of 1 March 2018, Mahnkopf, C‑558/16, EU:C:2018:138, paragraph 35)."⁸

A court appears to be the engine that powers market integration in a succession matter.

In brief, it is better not to downplay the significance of nationality in a succession context under the assumption that it always hinders market integration while it may power it.

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