| Abstract [eng] |
Growing mobility, social changes in modern societies make influence on succession law too. First steps in harmonization of private international law of succession were made by the Hague conventions resolving some issues of conflict of law. But they were regulating only very specific questions or were ratified by very small number of states. However the need of common conflict rules was growing, especially in the EU. That is why the regulation No 650/2012 was approved. It is the first EU document which covers all the main questions of private international law and also issues some material legal norms concerning European succession certificate. The goal of this article is to review the changes of conflict of law rules and what efect they make for the interested parties. First of all, there are presented the national private law rules on applicable law in international succession cases. As it is shown, there are big differences between countries applying different connecting factors and having dualistic or unitarian succession systems. That poses a lot of problems if de cujus lived not in the state of origin or had goods in different states. Unity of succession was one of the biggest novelties proposed by the regulation No 650/2012 which had to ensure the faster, cheaper and more comfortable international succession procedure. Unity of succession is applied horizontally, that means for all the estate of the de cujus, and vertically, that means for all the succession procedure till the heritage is shared between the heirs. Secondly, it is important to determine the teritory where the conflict of law rules established by the regulation No 650/2012 may be applied. The situation of three EU member states – Denmark, UK and Ireland which are not parties to the regulation is still not clear. As the member state to which regulation should be applied is not described by the regulation it is doubtful if these three states could be regarded as third states with all the related consequences, as, for example, the application of renvoi. Further the content of the applicable law is overviewed, analyzing the Article 23 and 1 of the regulation No 650/2012 and taking into account the first rulings of the CJEU. Also the coherence of different related matters, such as matrimonial property regime, status of natural person, family relationships and international succession is questioned. Habitual residence, as connecting factor for the applicable law to international succession, does not surprise anyone, because this connecting factor is applied in most European cases. However, the lack of the definition and its new feature – family ties with country of origin makes this connecting factor less stable and unpredictable. The regulation No 650/2012 gives opportunity to testator to choose applicable law what shows some kind of contractualisation of succession law. But the choice is limited only to the nationality of the testator. Despite the principal of party autonomy, which finds its place in most recent EU regulations, it does not help to find one applicable law for various related questions, such as international family relations, matrimonial regime and succession. However, it permits for testator to apply different legal institutes in the state of his habitual residence that poses some challenges for the states, because they are obliged to recognise the mechanisms which they do not know, for example, agreement as to succession. Nevertheless regulation No 650/2012 is very important step in harmonizing international succession law, letting us to believe that it sets up only the “rails” in which the material succession law between member states may develop. |
