How to say "No, thanks" in European

Wed 01 November 2023, Philippe Ropenga EU Succession Regulation 650/2012

You know that an heir may renounce a succession under French law¹ and that the European Succession Regulation fosters circulation within the EU.² Do you know how to apply this Regulation in case of a cross-border succession waiver? The Court of Justice of the European Union (EUCJ) has shown how to do it in M. Ya. M.³

The grandson of a Bulgarian national who died in Greece applied to have a waiver of succession issued in Greece entered into a Bulgarian register for it to take effect in Bulgaria. The waiver of succession has been issued by a Greek court at the request of another heir, the husband of the deceased, a Greek national. The grandson produced the waiver along with the European Certificate of Succession. The Bulgarian court has not been able to formally determine whether the deceased had her habitual residency in Greece since this piece of information was only supported by an oral declaration when the Bulgarian court applied to the EUCJ. The Bulgarian court wanted to make sure that it had jurisdiction before deciding where the deceased had her habitual residency and referred the case to the EUCJ for preliminary ruling.

This cautious attitude is sensible since according to Article 4 of the European Succession Regulation that states a general jurisdiction principle:

"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."

The grandson has his habitual residency in Bulgaria. Nevertheless, if one applies Article 4 following the statement of the deceased's husband, it seems that Greek courts have jurisdiction. The Bulgarian Court had therefore to determine whether to apply Article 13 of the European Succession Regulation and wanted to avoid a conflict with the general principle stated by Article 4.

Article 13 states that:

In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court.

The EUCJ stated at 43 that:

"As regards, in the second place, the context of Article 13 of Regulation No 650/2012, it must be borne in mind that that article forms part of Chapter II of that regulation, which governs all the grounds of jurisdiction in matters of succession. Article 13 of Regulation No 650/2012 thus provides for an alternative forum of jurisdiction which aims to enable heirs who do not have their habitual residence in the Member State the courts of which have jurisdiction to rule on the succession, in accordance with the general rules laid down in Articles 4 to 11 of Regulation No 650/2012, to make their declarations concerning the acceptance or waiver of succession before a court of the Member State in which they have their habitual residence (judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 37)."

Article 13 provides a specific jurisdiction rule that does not depend on the result of the application of Article 4 in a given matter. This is not surprising since uniform formalities created by the European Succession Regulation are not designed to help anyone to move from A to B but to remove obstacles that one may find on one's journey.⁴. A court will ultimately decide a matter by applying a domestic law. Borders melt but do not disappear.⁵

The EUCJ restated that a court should set formal requirements aside when they hindered the declaration, exercise, or recognition. Domestic Bulgarian procedure did not allow an heir to apply for the registration of a declaration by another heir.

The EUCJ stated at 39 that:

In that regard, should it prove to be the case that the provisions of Bulgarian law prevent the referring court from examining its jurisdiction to rule on the succession at issue, that court should disregard them. According to the settled case-law of the Court, the national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law, is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 45 and the case-law cited).This case in line with case law regarding formalities.⁶

The EUCJ favours the solution that enables one to apply to courts of one's Member States even if this requires to set parts of domestic law aside. Hence, It is good practice to identify the conflict rule that may provide this solution.

In brief, the most straightforward solution involving conflict rules is often the best.

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