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Informal Meeting of the Justice and Home Affairs Ministers

Prague, 15 – 16 January 2009

Agenda item: Future of judicial cooperation in the area of family law
and law of succession

Questions relating to the areas of family law and law of succession are
of relevance to each of us. Against the backdrop of the growing mobility
of persons within the European Community, regulation of cross-border
cases has been gaining practical significance. According to the latest
Eurostat release from November 2008, 1.7 million EU citizens changed
habitual residence in 2006. Half of them were younger than 34. Due to
this mobility of European citizens new cross-border social links are
created, frequently resulting in international marriages. The free
movement of persons often involves movement of property which may lead
to cross-border inheritance proceedings on the death of a person.

I

For the time being succession and wills are matters regulated mainly at
national level, as no Community measure has yet been adopted in the
area. Attempts have been made at providing for an international
regulation in the area through the application of multilateral
agreements adopted in the framework of The Hague Conference on Private
International Law, however without great success. Thus, the Hague
Convention of 1 August 1989 on the Law Applicable to Succession to the
Estates of Deceased Persons has never entered into force. Due to this
lack of international regulation in the area of succession every Member
State applies its own conflict of laws rules on successions and wills
and its own rules on jurisdiction and on recognition and enforcement of
foreign decisions and authentic instruments. 

Some Member States make a distinction in matters of succession between
movable and immovable property, whereas other Member States follow a
unitary approach. The prevailing connecting factor for determination of
the law applicable in matters of succession in the Member States is the
nationality of the deceased person at the time of death. However, some
apply the law of last habitual residence of the deceased person or lex
situs. The scope of the applicable law may also differ. In addition to
the general conflict of laws rule on succession the Member States also
apply special conflict of laws rules contained in their private
international law concerning the capacity of the deceased person to
dispose of his or her property upon death and concerning the formal
validity of such dispositions. Furthermore, differences exist between
the Member States concerning the competence of authorities to deal with
the succession of foreign nationals or with the estates of own nationals
abroad.

Cases where parallel succession proceedings are conducted in several
Member States concerning the same estate of the same deceased person are
not exceptional. The application of more than one national law could for
instance lead to different results with regard to the determination of
heirs and their share of the estate. All these circumstances hinder the
effective recognition and enforcement of decisions and often entail a
lack of predictability concerning the law applicable to the estate for
the parties involved in succession proceedings. The adoption of
harmonised rules in this area therefore appears to be desirable.

II

Leaving aside law of succession, considerable progress has been reached
in the area of family law. The basic instrument in this area is the
Brussels IIa Regulation which provides for rules on jurisdiction and on
recognition and enforcement of decisions in matters of parental
responsibility and in matrimonial matters. A new Regulation which
provides for rules on jurisdiction and on recognition and enforcement of
decisions in matters relating to maintenance obligations has just been
adopted and will start applying in the near future. These two
Regulations furthermore both provide for cooperation between Central
Authorities. The Brussels IIa Regulation provides for close cooperation
between the Member States in situations of international child
abduction; in particular, it contains  special rules on the return of a
child based on the 1980 Hague Convention on the Civil Aspects of
International Child Abduction. 

The cross-border character of a given case usually makes proceedings
more complicated and lengthy and also increases the costs of
proceedings. The impossibility to settle family disputes in a reasonable
way and within a reasonable timeframe can have a negative impact on all
parties involved, especially on children. The above mentioned two
Regulations aim at easing such legal complications and at removing
obstacles, in short at simplifying life for “international
families”. The Brussels IIa Regulation has already proven its positive
contribution in this respect. Undoubtedly, the new Regulation on
maintenance obligations will equally considerably simplify the
cross-border enforcement of maintenance decisions in the future. 

Besides the matters covered by the Brussels IIa Regulation and the
recently adopted Regulation on maintenance obligations there are other
areas of family law in which the European Community has not yet adopted
any measures and in which the differing legal regulation between the
Member States makes it complicated for the members of "international
families" to exercise their rights effectively across the borders. 

III

Pursuant to Article 65 and Article 67(5) of the EC Treaty the unanimity
is required in the Council and consultation of the European Parliament
for the adoption of measures in the area of family law. This is very
important since it ensures that no Member State can be outvoted and that
no Member State will have to apply rules contrary to its national
traditions in the area of family law. 

However, the unanimity requirement may lead to a risk that measures
which a majority of Member States considers necessary cannot be adopted
because of the opposition of just one Member State. 

The Presidency finds it necessary to reconsider the future development
of the area of family law within the European Community and reckons with
the possibility that the Member States will not always be able to reach
consensus on new legislative measures.

In principle, there are two solutions to this situation. The first
solution can be found in primary law, i.e. in Articles 11 and 11a of the
EC Treaty and Articles 43 to 45 of the EU Treaty which lay down rules
for the adoption of a new measure by way of enhanced cooperation. If
this solution is not acceptable, the only remaining solution is to
deepen the practical cooperation within the existing legislative
framework. One possibility could be to deepen cooperation within the
European Judicial Network in civil and commercial matters or to
contribute to the further enhancement of the role of international
organisations (such as The Hague Conference on Private International
Law) and of the structures created by them (liaison judges in family
matters).

QUESTIONS FOR DISCUSSION:

1. Do the Ministers agree on the need of adopting a balanced Community
instrument in the area of law of succession providing for rules on
jurisdiction, applicable law and recognition and enforcement in order to
guarantee an effective enforcement of cross-border inheritance claims? 

2. Do the Ministers believe that there are still areas of international
family law in which the adoption of new legislative measures would
contribute to improve cooperation within the European Community?

3. Do the Ministers find it legitimate to seek alternative solutions for
strengthening judicial cooperation in civil matters in areas in which
the unanimity rule applies, when it is not possible to achieve a
consensus among all Member States on the adoption of a new legislative
measure? What alternative solutions could be envisaged? 

 Eurostat, Statistics in Focus, 98/2008 "Recent migration trends:
citizens of EU-27 Member States become ever more mobile while EU remains
attractive to non EU-citizens"

  Succession and wills are explicitly left out of the scope of the
Brussels I, the Brussels IIa, the Rome I and the Rome II Regulations and
equally of the Regulations on small claims, on the European payment
order and on the European enforcement order for uncontested claims.

 See point 19 of the Conclusions of the European Council of 19 and 20
June 2008 (doc. 11018/1/08 REV 1) where the European Council invited the
Commission to submit its proposal on succession and wills before the end
of 2008.

 The basis for the creation of a network of contact judges in family
matters with international aspect was  laid down in 2001 at the Fourth
Meeting of the Special Commission to Review the Operation of the 1980
Hague Convention on the Civil Aspects of International Child Abduction
(see Conclusions and Recommendations - point 5.5). 

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