Regulation EU No. 650/2012

Report
Bucharest, 19- 20 September 2013
Family Law and Successions in Light of the EU Law
Europe for notaries, notaries for Europe
Regulation EU No. 650/2012
Applicable Law
Article 22 – Choice of Law
Speaker: Tsertsigianni Elena – Greek Notariat
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
 A client asks for your help when drafting his Will
 He has dual nationality
 He owns real estate properties in different
counties than the country of his habitual
residence
Can he choose which countries’
law will govern his succession?
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
 EU regulation 650/2012 about
succession addresses, among various
matters of succession, such cases, which
are more and more common due to the
increasing mobility of citizens inside and
outside the E.U. and gives to the person
the possibility to organize
his succession in advance by choosing the
law applicable, under the relevant
provisions.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
According to the transitional provisions of Article 83:
1.This Regulation shall apply to the succession of
persons who die on or after 17 August 2015.
2. Where the deceased had chosen the law applicable
to his succession prior to 17 August 2015, that choice
shall be valid if it meets the conditions laid down in
Chapter III or if it is valid in application of the rules of
private international law which were in force, at the time
the choice was made, in the State in which the deceased
had his habitual residence or in any of the States whose
nationality he possessed.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Applicable law
 The Regulation has universal application, any
law specified by the Regulation shall be applied
whether or not it is the law of a Member State
(Article 20). So a person can choose as the
applicable law for his succession the law of a third
State.
 The general rule set by article 21 is that the law
of the State in which the deceased had his habitual
residence at the time of death is the law applicable
to the succession as a whole.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Applicable law
 As an exception, article 21, paragraph
2 provides that if it is evident from all the
circumstances of a specific case that, at
the time of death the deceased was
manifestly more closely connected with
a State other than the State where he
had his habitual residence at the time of
death, the law applicable to the
succession shall be the law of that other
State.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Article 22 -Choice of law
• 1. A person may choose as the law to govern
his succession as a whole the law of the State
whose nationality he possesses at the time of
making the choice or at the time of death.
• A person possessing multiple nationalities
may choose the law of any of the States
whose nationality he possesses at the time of
making the choice or at the time of death.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
• 2. The choice shall be made expressly in a
declaration in the form of a disposition of
property upon death or shall be demonstrated
by the terms of such a disposition.
• 3. The substantive validity of the act whereby
the choice of law was made shall be governed
by the chosen law.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
• 4. Any modification or revocation of the
choice of law shall meet the requirements as
to form for the modification or revocation of a
disposition of property upon death.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 1
 A person can choose as the law to rule his
succession as a whole the law of the State whose
nationality he possesses either at the time of
making the choice or at the time of death.
 If someone possesses multiple nationalities, he
can choose the law of any of the States whose
nationality he possesses either at the time of
making the choice or at the time of death.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 1
 So, instead of the general rule of article 21 where the
habitual residence at the time of death defines the law
applicable to the succession, by article 22 the person
can choose as applicable to his succession as a whole
the law of the State whose nationality he possesses.
The choice is limited by the Regulation though to the
law of a State of (one of) his nationality (-ies) in order
to ensure a connection between the deceased and the
law chosen and to avoid a law being chosen with the
intention of depriving the legitimate rights from
persons entitled to a reserved share.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 2
 In order for the choice of the person to be
applied, there is a specific form to be followed. It
has to be made expressly and not in any kind of
document, even authentic, but in a declaration in
the form of a disposition of property upon death
or it has to be demonstrated by the terms of such
a disposition and not in any other form or
manner.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 2
 The choice of law could be regarded as
demonstrated by a disposition of property
upon death where, for instance, the deceased
had referred in his disposition to specific
provisions of the law of the State of his
nationality or where he had otherwise
mentioned that law.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 3
The choice of law also defines the substantive
validity of the act of choice. All matters that
have to do with the substantive validity of the
act with which the choice of law was made,
shall be ruled by the chosen law.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 4
• In order to proceed to any modifications or
revocations of the choice of law, this cannot
be done in an informal manner but again a
specific form must be used. Modifications or
revocations must meet all the requirements
in form for the modification or revocation of a
disposition of property upon death.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Case studies for the application of article 22 (death on or
after 17/8/2015)
• Mrs. Sergiu of romanian nationality, habitual resident of
Athens Greece, dies having real estate property in
Romania, Bulgaria, Hungary and Greece.
She leaves a will choosing the romanian law to be
applied to her property. Is this valid?
Yes, the romanian law will be applicable to her
succession as a whole.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
• Mr. Brown, of english and belgian nationality,
habitual resident of Bath England, dies leaving
movable and immovable property in England,
Spain and Italy. In his will he chooses english
law to be applied to his succession. Is this
valid?
Yes, english law will be applicable to his
succession as a whole.
Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
• Mr. Garcia, of mexican and french
nationality, habitual resident of Barcelona
Spain, dies leaving movable and
immovable property in France, Mexico
and Portugal. In his will he chooses
mexican law to be applied to his
succession. Is this valid?
Yes, mexican law will be applicable to his
succession as a whole.
Bucharest, 19-20 September 2013
Family Law and Successions in Light of the EU Law
Europe for notaries, notaries for Europe
Regulation EU No. 650/2012
Applicable Law
Article 22 – Choice of Law
Thank you for your attention!

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