Study carried out by the Max Planck Institute for Comparative and International Private Law, Hamburg: comments on the European Commission

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Study carried out by the Max Planck Institute
for Comparative and International Private Law,
Hamburg comments on the European Commissions
Proposal for a Regulation of the European
Parliament and of the Council on jurisdiction,
applicable law, recognition and enforcement of
decisions and authentic instruments in matters of
successions and the creation of a European
Certificate of Succession, COM(2009)154final
http//www.mpipriv.de/shared/data/pdf/mpi_comments
_succession_proposal.pdf
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Text of Article 36 Creation of a European
Certificate of Succession

• This Regulation introduces a European Certificate
  of Succession, which shall constitute proof of
  the capacity of heir or legatee and of the powers
  of the executors of wills or third-party
  administrators. This certificate shall be issued
  by the competent authority pursuant to this
  Chapter, in accordance with the law applicable to
  succession pursuant to Chapter III of this
  Regulation.
• The use of the European Certificate of Succession
  shall not be obligatory. The certificate shall
  not be a substitute for internal procedures.
  However, the effects of the certificate shall
  also be recognised in the Member State whose
  authorities have issued it in accordance with
  this Chapter.

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Comments on Article 36

• In practice need for heirs to prove their
  position
• Certificate of succession as an advantage
  (context banks)
• Cross-border-cases in the European Union
• Most national certificates of succession are not
  recognised in other Member States
• Reference to the German Erbschein Art. 2353
  German Civil Code, the heir who is displayed in
  the Erbschein, is presumed to be the true heir
  bona fides effects like in the German Land
  Register
• Therefore, the idea of introducing a European
  Certificate of Successions having the same
  content(!) and the same effects, is highly
  welcomed the European Certificate of Succession
  will be accepted without further formalites
• The European Certificate of Succession should
  serve as proof of the status of the heir in all
  Member States in additon to that, it establishes
  a rebuttable presumption that the content of the
  Certificate is accurate
• However, the relationship between the European
  Certificate of Succession and national
  certificates are not mentioned in Article 36- it
  is only mentioned that the use of the European
  Certificate of Successsion shall not be
  obligatory, Art. 36 (2) as a result, the MPI
  (Max Planck Institute) suggests to approve the
  optional character of the European Certificate of
  Succession
• MPI also suggests certificates instead of
  procedures in Art. 36 (2) 2

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Text of Article 37 Competence to issue the
certificate

• The certificate shall be issued upon application
  by any person obliged to provide proof of the
  capacity of heir or legatee and of the powers of
  the executors of wills or third-party
  administrators.
• The certificate shall be drawn up by the the
  competent court in the Member State whose courts
  are competent to Articles 4, 5 and 6.

ELRA Madrid 2010
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Comments on Article 37

• - Art. 37 (1) displays some inaccuracies
  regarding the definition of potential applicants
• for a European Certificate of Succession
• To avert misinterpretation, the MPI applies for
  making it very clear that any heir,
• beneficiary, devisee legatee, executor or
  third-party is entitled to apply for a
• Certificate
• furthermore, Art. 37 (1) seems to suggest that
  the applicant is under some obligation
• towards third parties to prove his succession
  right in fact, this is not the purpose of
• the application procedure the MPI suggests
  claiming to be an heir instead of
• obliged to provide proof of the capacity
  these persons are simply obliged to
• provide proof of their respective capacity
  before the competent court
• In Art. 37 (2) it is mentioned that the
  certificate shall be drawn up in fact, the
• certificate must be issued (!) by the competent
  court

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Text of Article 38 (only 1) Content of the
application

• Any person applying for the issue of a
  certificate of succession shall provide, via the
  form of a mode of which is provided in Annex I,
  where such information is in their possession
• a) information concerning the
  deceased
• b) the claimants details surname,
  forename
• c) the elements of fact or law which
  justify their right to succession
• d) if they are replacing others heirs
  or legattes.
• e) whether the deceased has stipulated
  a marriage contract
• f) if they are aware that the
  succession rights are being contested

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Comments on Article 38

• Art. 38 defines requirements of an application
  for a European Certificate of
• Succession it determines the standard of proof
  for the accuracy of data
• The applicant has to provide the competent court
  with all relevant facts
• However, the terminology in Art. 38 (1) is quite
  unclear claimants details,
• because Art. 38 refers to an application, not a
  claim
• In the current version the applicant is allowed
  to attach just a simple copy of
• the testament the MPI proposes that the
  applicant should attach the
• original of the disposition in any other case,
  the applicant should be obliged to
• provide the competent court with all information
  regarding the whereabouts
• of the disposition

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Text of Article 39Partial certificate

• A partial certificate may be applied for and
  issued to attest to
• a) the rights of each heir or legatee,
  and their share
• b) the devolution of a specific item
  of property, where this is allowed
• under the law applicable to the
  succession
• c) administration of the succession.

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Comments on Article 39

• Art. 39 gives the applicant the opportunity to
  limit the scope of a European Certificate of
• Succession to certain information such as
• the rights of each heir or legatee
• devolution of a specific item of property,
  where this is allowed under the law
• applicable to the succession
• administration of the succession.
• The MPI proposes to clarify that the partial
  certificate has the same effects as a
• regular certificate in the current situation,
  the status of the partial certificate is not
  clear
• MPI suggests The competent court shall issue
  a partial certificate having the same effects
• as the regular certificate (Article 42)

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Text of Article 40 (only 1-3)Issue of the
certificate

• The certificate shall be issued only if the
  competent court considers that the
• facts which are presented as the
  grounds for the application are
• established. The competent court
  shall issue the certificate promptly.
• 2. The competent court shall carry out, of its
  own accord and on the basis
• of the applicants declarations and the
  instruments and other means of
• proof provided by them, the enquiries
  necessary to verify the facts and to
• search for any further proof that seems
  necessary.
• 3. For the purpose of this Chapter, the Member
  States shall grant access to the
• competent courts in other Member States, in
  particular to the civil status
• registers, to registers recording acts and
  facts relating to the succession or to
• the matrimonial regime of the family of the
  deceased and to the land registers.

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Comments on Article 40

• Art. 40 defines the requirements of the issue of
  the certificate
• It stipulates the courts obligation to conduct
  an official enquiry
• In addition to that, it also stipulates that the
  competent court shall be given
• access to the registers of the Member States
• Art. 40 (3) opens also the land registers for
  enquiries carried out by the
• competent court as a result, the Land Register
  Law is also involved
• from the German point of view, this special
  access would be in accordance with
• Art. 12 Grundbuchordnung, because it can be
  considered as a legitimate
• interest the European Judicial Network must be
  asked for help and support?
• MPI was not aware of ELRA and the European Land
  Registry Network (ELRN)
• I think that this enquiries should be made by
  ELRA/ELRN, because as legal practitioners we know
  best how to make this researches!

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Text of Article 41 (1, 2)Content of the
certificate

• The European Certificate of Succession shall be
  issued using the standard
• form in Annex II.
• 2. The European Certificate of Succession shall
  contain the following information
• a) the issuing court
• b) information concerning the deceased
• c) any marriage contracts
• .i) the list of assets or rights for legatees in
  accordance with the law applicable to
• the succession

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Comments on Article 41

• MPI suggests to reduce the content of the
  certificate to the essential information to prove
• a persons entitlement to a succession
• As a result, the standard form in Annex II of the
  Regulation should be revised, too
• According to the MPI study, the standardised
  form fails to serve this function when the
• Certificate contains additional and specific
  information (p. 131)
• According to the MPI study, the current situation
  about the content of the Certificate will
• only result in confusion and raise questions
  regarding the scope and the effects of the
• Certificate
• The Institute, therefore, recommends excluding
  any such information from the Certificate
• itself (p. 132)
• To secure clarity in legal relations, must have
  priority
• especially Art. 41 (2) (i), the list of assets
  or rights for legatees in accordance with the
• law applicable to the succession, may be
  misunderstood as a partition certificate, which
  is
• in contrast to the property law in some Member
  States, where a transaction, recorded by a
• notary, is needed for the partition of the
  assets. According to the German property law,
• a legatee is only a right personam against the
  heir, not a right in rem (p. 134)
• MPI states The proposed list of assets or
  rights in Art. 41 (2) (i) raises the same
  concerns as
• illustrated above and should therefore be
  deleted. (p. 134).

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Text Article 42, 43The effects of the European
Certificate of SuccessionRectification,
suspension or cancellation of the European
Certificate of Succession

• In Art. 42 (1) it is laid down, that the European
  Certificate of Succession shall be
• recognised automatically in all the Member
  States
• The content of the certificate shall be presumed
  to be accurate until the contrary
• is proven (Art. 42(2))
• However, the relationship between the European
  Certificate of Succession and
• national certificates are not regulated the
  same is true for the relationship
• of several European Certificates among each
  other. (MPI study p. 139).

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Exit Annex II European Certificate of
succession referred to in Article 41

• See
• http//ec.europa.eu/justice_home/news/summary/docs
  /com_2009_0157_en.pdf