Activities of Klaus-Heiner LEHNE related to 2009/0157(COD)
Plenary speeches (1)
Succession and the European Certificate of Succession (debate)
Legal basis opinions (0)
Amendments (24)
Amendment 125 #
Proposal for a regulation
Recital 9
Recital 9
(9) The validity and effects of gifts are covered by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)18 . They should therefore be excluded from the scope of this Regulation in the same way as other rights and assets created or transferred other than by succession. However, it is the law on succession determined pursuant to this Regulation which should specify if this gift or other form of provisions made inter vivos giving rise to an immediate right in rem can lead to any obligation to restore or account for gifts when determining the shares of heirs or legatees in accordance with the law on succession.
Amendment 127 #
Proposal for a regulation
Recital 10
Recital 10
(10) While this Regulation should cover the method of acquiring a right in rem in respect of tangible or intangible property as provided for in the law governing the succession, tThe exhaustive list (‘numerus clausus’) of rights in rem which may exist under the national law of the Member States, which is, in principle, governed by the lex rei sitae, should be included in the national rules governing conflict of laws. The publication of these rights, in particular the funcre should be adaptation ing of the land registry and the effects of entry or failure to make an entry into the register, which is also governed by local law, should also be excluded accordance with the recognised principles of international private law.
Amendment 128 #
Proposal for a regulation
Recital 12
Recital 12
(12) In view of the increasing mobility of European citizens and in order to encourage good administration of justice within the European Union and to ensure that a genuine connecting factor exists between the succession and the Member State exercising jurisdiction, this Regulation should provide for the competence of the courts of the Member State of the last habitual residence of the deceased for the whole of the succession in both adversarial and non-adversarial proceedings. For the same reasons, it should allow the competent court, by way of exception and under certain conditions, to transfer the case to the jurisdiction wherecompetent authority of the Member State of which the deceased had nationality if the latterat authority is better placed to hear the case.
Amendment 130 #
Proposal for a regulation
Recital 12 a (new)
Recital 12 a (new)
(12a) The term ‘court’ should cover all authorities which exercise judicial functions, such as, in certain legal systems, notaries acting as court commissioners or persons appointed by a court to distribute the estate. Such authorities should therefore be subject to jurisdiction rules and their decisions should be deemed for the purposes of this Regulation to constitute court decisions.
Amendment 137 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to facilitate recognition of succession rights acquirAgreements as to succession which are valid under the law designated by this Regulation, and the rights deriving from such agreements, should be recognised in athe Member State, the conflict-of-lawss. Special rules should favour the validity of the agreements as to succession by accepting alternative connecting factors. The legitimate expectations of third parties should be preservedbe laid down concerning the law applicable to the substantive validity and binding effect of, and the other legal issues specifically relating to, agreements as to succession. Where relevant, those rules should apply mutatis mutandis to joint wills.
Amendment 142 #
Proposal for a regulation
Recital 24
Recital 24
(24) Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of foreign law in a given case where this would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard the law of another Member State or to refuse to recognise or enforce a decision, an authentic instrument, a legal transactioncourt settlement or a European Certificate of Succession drawn up in another Member State when thisif doing so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21, which prohibits all forms of discrimination. As a rule, minor differences in law on indefeasible interests should not be cited as grounds for disregarding application of the law of another Member State.
Amendment 145 #
Proposal for a regulation
Recital 27
Recital 27
(27) An accelerated, manageable and efficient settlement of international successions within the European Union implies the possibility for the heir, legatee, executor of the will or administrator to prove easily on an out-of-court basis their capacity in the Member States in which the property involved in the succession is located. In order to facilitate free movementcirculation of this proof within the European Union, this Regulation should introduce, for cross-border cases, a uniform model for the European Certificate of Succession and appoint the authority competent to issue it. That authority may be a court as defined in this Regulation or another authority, such as a notary. The competent authority should be appointed by the Member State whose courts have competence under this Regulation. In order to respect the principle of subsidiarity, this certificate should not replace the internal procedures of the Member States. The Regulation should specify the linkage with these procedures.
Amendment 149 #
Proposal for a regulation
Article 1 – paragraph 3 – point f
Article 1 – paragraph 3 – point f
(f) rights and assets created or transferred other than by succession to the estate of deceased persons, including gifts, such as in joint ownership with right of survivalorship, pension plans, insurance contracts and or arrangements of a similar nature, notwithstandingout prejudice to Article 19(2)(j);
Amendment 150 #
Proposal for a regulation
Article 1 – paragraph 3 – point h
Article 1 – paragraph 3 – point h
(h) the dissolving, closureution, extinction and merginger of enterprises, associations and legal personscompanies and other bodies, corporate or unincorporated;
Amendment 152 #
Proposal for a regulation
Article 1 – paragraph 3 – point i
Article 1 – paragraph 3 – point i
(i) the constitution, functioning and dissolving of trustsreation, administration and dissolution of trusts, with the exception of trusts constituted through a disposition of property upon death or a legal transfer of property as a result of death;
Amendment 155 #
Proposal for a regulation
Article 2 – point b
Article 2 – point b
Amendment 158 #
Proposal for a regulation
Article 2 – point c
Article 2 – point c
(c) “agreement as to succession”: an agreement created in writing or resulting from mutual wills which confers, modifies or withdraws, with or without consideration, rights to the future succession of one or more persons who are party to the agreement;
Amendment 159 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) ‘joint wills’: wills drawn up by two or more persons in the samone instrument for the benefit of a third party and/or on the basis of a reciprocal and mutual disposition;
Amendment 160 #
Proposal for a regulation
Article 2 – point e
Article 2 – point e
(e) ‘home Member State of origin’: the Member State in which, depending on the case, the decision has been given, the legal transactioncourt settlement approved or concluded and the authentic instrument drawn up;
Amendment 163 #
Proposal for a regulation
Article 2 – point g
Article 2 – point g
(g) ‘decision’: any decision givenadopted in a matter of succession to the estate of a deceased person by a court of a Member State, whatever the decision may be called, including a decree, order, ordinance, measure or writ of execution, as well as the determination of costs or expenses by an officer of the court;
Amendment 165 #
Proposal for a regulation
Article 2 – point i
Article 2 – point i
(i) ‘European Certificate of Succession’: the certificate issued by the competent court or authority pursuant to Chapter VI of this Regulation.
Amendment 169 #
Proposal for a regulation
Article 4
Article 4
Notwithstanding the provisions of this Regulation the courts of the Member State on whose territory the deceased had his or her habitual residence at the time of their death shall be competenthave jurisdiction to rule ion matters ofconcerning successions to the deceased's estate as a whole.
Amendment 171 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Where the law of a Member State was chosen by the deceased to govern this or heir succession in accordance with Article 17, the court seised in accordance with Article 4 may, at the request of one of the parties and if it considers that the courts of the Member State whose law has been chosen are better placed to rule on the succession, stay proceedings and invite the parties to seise the courts in that Member State with the application.
Amendment 172 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The competent court seised in accordance with Article 4 shall set the parties a deadline by which the courts of the Member State whose law has been chosen must be seised in accordance with paragraph 1. If the courts are not seised by that deadline, the court seised in accordance with Article 4 shall continue to exercise its jurisdiction.
Amendment 173 #
Proposal for a regulation
Article 5 a (new)
Article 5 a (new)
Article 5a Choice of court Notwithstanding Article 5, where the law of a Member State was chosen by the deceased to govern succession to his or her estate in accordance with Article 17, the parties may agree that the court or courts of that Member State shall have jurisdiction to rule on the succession to the deceased's estate.
Amendment 174 #
Proposal for a regulation
Article 5 b (new)
Article 5 b (new)
Article 5b Declining jurisdiction If the courts of the Member State on whose territory the deceased had his or her habitual residence at the time of death are seised ex officio of the succession proceedings and if the parties agree to seise the courts of the Member State whose law was chosen by the deceased in accordance with Article 5a or to bring the succession proceedings before any other competent authority in that Member State, the courts seised ex officio shall decline jurisdiction.
Amendment 175 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
In the cases referred to in points (a) to (c) of the first paragraph, competence shall cover the succession as a whole.
Amendment 192 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
2. The law applicable to the succession must be expressly determined and included in a declaration inchoice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be unequivocally demonstrated by the foterms of a disposition of property upon death.
Amendment 195 #
Proposal for a regulation
Article 18 a (new)
Article 18 a (new)
Article 18a Formal validity of dispositions of property upon death 1. A disposition of property upon death shall be valid as regards form if its form complies with the internal law: (a) of the State where the testator made it, or (b) of a State whose nationality the testator possessed, either at the time when he or she made the disposition, or at the time of death, or (c) of a State in which the testator had his or her domicile, either at the time when he or she made the disposition or at the time of death, or (d) of the State in which the testator had his or her habitual residence, either at the time when he or she made the disposition or at the time of death, or (e) in so far as immoveable property is concerned, of the State in which that property is located. 2. Paragraph 1 shall also apply to testamentary dispositions revoking an earlier testamentary disposition. The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the testamentary disposition that has been revoked was valid. 3. For the purposes of this Article, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal circumstances of the testator shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that witnesses must possess in order for a testamentary disposition to be valid.