Tag Archives: Private international law

Jurisdiction, applicable law and a European Certificate in succession matters

Jurisdiction, applicable law and a European Certificate in succession matters

Outline of the Community (European Union) legislation about Jurisdiction, applicable law and a European Certificate in succession matters

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Jurisdiction, applicable law and a European Certificate in succession matters

Document or Iniciative

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

Summary

This regulation applies to the succession to the estates of deceased persons. It is not applicable to revenue, customs or administrative matters.

Jurisdiction

The courts of the EU country in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. Where the habitual residence of the deceased at the time of death is not located in an EU country, the courts of an EU country in which assets of the estate are located shall have jurisdiction to rule on the succession, provided that the deceased had:

  • the nationality of that EU country at the time of death; or
  • his previous habitual residence in that EU country, provided that, at the time the court is seised, no more than 5 years have elapsed since the habitual residence changed.

Where the deceased has made a choice of law in accordance with the Regulation and the law chosen by the deceased is of an EU country, the parties concerned may agree that the courts of that EU country are to have exclusive jurisdiction to rule on any succession matter.

The courts of the EU country in which the deceased had his habitual residence at the time of death can decline the jurisdiction to govern the succession if it considers that the courts of the EU country of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets.

The courts of an EU country whose law had been chosen by the deceased shall have jurisdiction if:

  • under specific conditions laid down in the Regulation, a court previously seised has declined jurisdiction in the same case;
  • the parties to the proceedings have agreed to confer jurisdiction on the courts of that EU country;
  • the parties to the proceedings have expressly accepted the jurisdiction of the court seised.

Applicable law

Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the country in which the deceased had his habitual residence at the time of death.

A person may choose as the law to govern his succession the law of the country whose nationality he possesses at the time of making the choice or at the time of death. A person with multiple nationalities may choose the law of any of the countries whose nationality he possesses.

The law governs in particular:

  • the causes, time and place of the opening of the succession;
  • the determination of the beneficiaries, of their respective shares and of any obligations imposed on them by the beneficiary, and the determination of other succession rights;
  • the capacity to inherit;
  • disinheritance and disqualification by conduct;
  • the transfer to the heirs and, as the case may be, to the legatees of assets, rights and obligations forming part of the estate;
  • the powers of the heirs, the executors of the wills and other administrators of the estate, without prejudice to specific rules on the appointment and powers of an administrator of the estate in certain situations;
  • liability for the debts under the succession;
  • the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death, as well as claims which persons close to the deceased may have against the estate or the heirs;
  • any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries;
  • the sharing-out of the estate.

Recognition and enforceability of decisions

Decisions given in an EU country shall be recognised throughout the EU without any special procedure being required.

Decisions enforceable in the EU country where they have been given shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

Acceptance and enforcement of authentic instruments

Authentic instruments established in an EU country shall have the same evidentiary effects in another EU country as it has in the EU country where they have been established, or the most comparable effects, provided that this is not manifestly contrary to public policy in the EU country concerned.

Authentic instruments enforceable in the EU country where they have been established shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

European Certificate of Succession

This Regulation creates a European Certificate of Succession which is for use by heirs, legatees having direct rights in the succession, and executors of wills or administrators of the estate who, in another EU country, need to invoke their status or to exercise their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. Once issued, the Certificate is effective in all EU countries without any special procedure being required.

Final provisions

This Regulation shall apply to the succession of persons who die on or after the 17 August 2015. Choices of law and dispositions of property upon death made prior to that date are valid under specific conditions laid down in the Regulation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EU) No 650/2012

16.8.2012

OJ L 201 of 27.7.2012

Accession to the Hague Conference on Private International Law

Accession to the Hague Conference on Private International Law

Outline of the Community (European Union) legislation about Accession to the Hague Conference on Private International Law

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Accession to the Hague Conference on Private International Law (HCCH)

Document or Iniciative

Council Decision 2006/719/EC of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law.

Summary

On 5 October 2006, the Council of the European Union (EU) adopted the decision on the accession of the European Community to the Hague Conference on Private International Law (HCC). The purpose of this international intergovernmental organisation is to work for the progressive unification of the rules of private international law in the participating countries. Since 3 April 2007, the European Community has been a participant of the HCCH.

Accession to the Hague Conference on Private International Law (HCCH)

The sole article of the decision stipulates that the Community is to accede to the HCCH by means of the declaration of acceptance of the statute of the conference (Annex I), as soon as the latter has taken the formal decision to admit the Community as a member.

The Community must also deposit a declaration of competence (Annex II) specifying the matters in respect of which competence has been transferred to it by its Member States. These are measures in the field of judicial cooperation in civil matters that have cross-border implications and are necessary for the proper functioning of the internal market. These measures are designed to:

  • improve and simplify the system for cross-border service of judicial and extra-judicial documents, cooperation in the taking of evidence and the recognition and enforcement of decisions in civil and commercial cases, including decisions in extra-judicial cases;
  • promote the compatibility of the rules applicable in Member States concerning the conflict of laws and jurisdiction;
  • eliminate obstacles to the good functioning of civil proceedings.

Furthermore, the Community has external responsibilities that can be subject to conventions of the HCCH, for example in the fields of the internal market and consumer protection. The external competence of the Community has been defined by the Court of Justice of the European Communities (ECJ): the Community may conclude international agreements whenever the internal competence has already been used, in order to adopt measures for implementing common policies or if the international agreement is necessary to obtain one of the Community’s objectives. The Community’s external competence is exclusive to the extent to which an international agreement affects internal Community rules or alters their scope. Where this is the case, it is for the Community to enter into external undertakings with third states or international organisations. An international agreement can fall entirely, or only to some extent, within exclusive Community competence.

In a declaration (Annex III), the Community endeavours to examine whether it is in its interests to join existing Hague Conventions in respect of which there is Community competence.

The statute of the Hague Conference has had to be amended to allow a regional economic integration organisation to accede to it. In June 2005, the Diplomatic Conference of the HCCH adopted the necessary amendments to the statute by consensus (Annex IV).

Background

On 28 November 2002, the Council authorised the Commission to negotiate the conditions and modalities of Community accession to the HCCH. Following the success of its negotiations with the HCCH, the Commission recommended that the Council adopt the present decision on the accession of the European Community. The European Parliament endorsed the Community’s accession on 7 September 2006. The European Community has been a member of the HCCH since 3 April 2007.

An international organisation in the field of private international law

Over 60 countries have acceded to the HCCH, which is an international intergovernmental organisation that prepares multilateral legal instruments satisfying international needs and provides the necessary follow-up. Private international law governs matters of private law (family law, rights of contracts, etc.) of an international nature. Private international law is the counterpart of that part of the national law of Member States that stipulates which law (foreign or national) is to apply in a particular case.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2006/719/EC

5.10.2006

OJ L 297 of 26.10.2006

Related Acts

Council Decision 2009/397/EC of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements [Official Journal L 133 of 29.5.2009].
This decision provides for the signing of the Convention on Choice of Court Agreements by the European Community on behalf of its Member States. The convention was concluded under the Hague Conference on Private International Law on 30 June 2005. While the Member States, with the exception of Denmark, are bound by the convention, the Community nevertheless retains its competence with regard to the related issues.
The convention applies to exclusive choice of court agreements concluded for international civil or commercial matters. It aims to enhance judicial cooperation, in particular by providing uniform rules for the recognition and enforcement of judgments in disputes arising from commercial transactions to which exclusive choice of court agreements apply. The purpose of the convention is to guarantee that the courts chosen by the parties to a transaction will hear the case and that the ensuing judgement is recognised in other countries.

Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children [Official Journal L 48 of 21.2.2003].

Entry of refugees into the EU and enhancing protection for them in the countries of first asylum

Entry of refugees into the EU and enhancing protection for them in the countries of first asylum

Outline of the Community (European Union) legislation about Entry of refugees into the EU and enhancing protection for them in the countries of first asylum

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Entry of refugees into the EU and enhancing protection for them in the countries of first asylum

Document or Iniciative

Communication from the Commission to the Council and the European Parliament of 4 June 2004 on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin: “improving access to durable solutions” [COM(2004)410 final – Not published in the Official Journal]

Summary

In this communication the Commission sets out recommendations for practical measures to implement the Thessaloniki mandate, given that the majority of applications for asylum in the EU do not fulfil the conditions for obtaining international protection. The Commission concludes that there is a need for better management of the entry of refugees into EU territory, looking ahead to a common asylum policy.

In an effort to find lasting solutions to the influx of refugees into the EU, the Commission focuses on three elements of asylum policy: the managed entry of asylum-seekers into the EU, enhanced protection in the regions of origin and the creation of EU regional protection programmes.

Managed entry of refugees into the EU

The Commission believes that the resettlement of refugees, which is often given a lower priority than voluntary repatriation, could play an important part in EU asylum policy. It therefore advocates the introduction of an EU-wide resettlement programme. All Member States would participate, but the scheme would be flexible and non-binding.

The main objective of the resettlement programme would be to provide international protection by facilitating the organised arrival of refugees in the EU. The programme’s watchword would be flexibility and it would be situation-specific. It would target a constant but limited number of refugees and could be adjusted according to the capacity of the Member States to accommodate asylum-seekers. Targets would be set at European level.

Resettlement would primarily affect individuals qualifying for international protection and groups of refugees regarded by the EU as particularly vulnerable. Candidates would be selected on the basis of interviews with the immigration services of the Member States during visits to the region of origin. The selection criteria could be agreed collectively or be specific to the Member States. There could be a role for NGOs in helping candidates to prepare their dossiers.

The logistical arrangements could be modelled on the resettlement programmes currently operating in certain European countries under the auspices of the Office of the UN High Commissioner for Refugees. Transport could be organised by the International Organisation for Migration (IOM). The EU would also provide technical assistance to the Member States for the preparation, referral, and selection of resettlement cases.

Protection of refugees in the regions of origin

The Commission agrees with the UNHCR that the international community should equip the countries of first asylum with the necessary means to be able to guarantee refugees protection that meets international standards. The Commission therefore emphasises the need to help these countries, located in the regions from which refugees originate, to enhance their legal and administrative capacity and to ensure greater respect for human rights and the rule of law.

In practical terms, the Commission advocates more efficient processing of asylum applications and better integration of applicants from third countries in the region of origin. Refugees will then be able to integrate in one of these countries of first asylum if there is no possibility of them returning to their country of origin or being resettled.

In the Commission’s view, the system of protection for refugees should serve two purposes: to assess and enhance the sustainable protection capacity of the host country. In the medium to long term, the aim would be to introduce targeted technical assistance based on the following principles:

  • accession and adherence to refugee instruments and other international humanitarian law treaties;
  • the creation of national legal frameworks consistent with international rules on refugees and asylum;
  • registration of asylum-seekers and refugees and preparation of detailed written documentation on their applications;
  • the establishment of admission and reception conditions for asylum-seekers that comply with the relevant national and international standards;
  • support for economic self-reliance and local integration of refugees and asylum-seekers.

The Commission believes that the ability of a state to offer effective protection to asylum-seekers can be assessed in the light of compliance with certain principles:

  • there is no threat to life and liberty on grounds of race, religion, nationality, membership of a particular social group or political opinion;
  • the principle of non-refoulement is respected;
  • the prohibition on torture and cruel, inhuman or degrading treatment is respected, as is the prohibition on any form of removal that would expose the asylum-seeker to the risk of such treatment;
  • it is possible to apply for refugee status and receive protection under the Geneva Convention;
  • it is possible to live a safe and dignified life.

The Commission proposes using as a reference point the new AENEAS programme for financial and technical assistance to third countries in the area of migration and asylum. This financial instrument would enable Member States, third countries, international organisations and NGOs to set up projects to enhance refugee protection capacity in the countries of their region of origin.

EU regional protection programmes

In order to enhance the protection capacity of third countries and to manage the entry of refugees into European territory more effectively, the Commission was asked to propose EU regional protection programmes, to be devised in partnership with the third countries of the region in question. These multiannual programmes would be accompanied by:

  • a list and an agenda for action
  • projects to be implemented in the area of asylum and migration
  • regional and country strategy papers.

They would also provide the framework for action by the Member States in a given country or region. The UNHCR would play a crucial role in the development and implementation of these programmes.

These EU regional protection programmes would provide a “tool box” of protection measures comprising:

  • action to enhance protection capacity;
  • a biometric registration scheme;
  • an EU-wide resettlement scheme;
  • assistance for improving the local infrastructure;
  • aid to promote local integration of asylum-seekers;
  • cooperation on legal migration;
  • action on migration management;
  • return policy.

Background

The General Affairs and External Relations Council on 19 May 2003 had urged the Commission to examine ways of strengthening the reception capacity of third countries, for example through development cooperation. The analysis was to take into account the financial and institutional capacity of many developing countries and the burden that refugees might place on these structures.

The European Council in Thessaloniki on 19 and 20 June 2003 then asked the Commission to consider ways of improving the management of entry into the EU of refugees requiring international protection and ensuring better protection in their regions of origin.

Finally, in October 2003, at a seminar organised by the Italian EU Presidency in Rome, the Member States defended the idea of an EU-wide resettlement programme. This would be a useful tool that would allow policy-makers to find comprehensive solutions to refugee situations and to combat illegal immigration and human trafficking. The managed arrival of asylum-seekers would also be a way of counteracting racism and xenophobia, because public opinion would probably be more receptive.

Related Acts

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [Official Journal L 304, 30.09.2004]

Communication from the Commission of 3 June 2003 “Towards more accessible, equitable and managed asylum systems” [COM(2003) 315 final – Official Journal C 76/21 of 25.03.2004] 
The Commission notes the failings of the current system of international protection and concludes that a common European asylum system needed to be put in place progressively. It identifies three objectives:

  • managed arrival of asylum-seekers on EU territory;
  • burden- and responsibility sharing within the EU and with the regions of origin;
  • the introduction of efficient procedures resulting in enforceable decisions on asylum and return.

Communication from the Commission of 26 March 2003 on the common asylum policy and the Agenda for protection [COM(2003) 152 final – Official Journal C 76/2 of 25.03.2004]
In this communication, the Commission considers ways of ensuring that the Member States’ human and financial resources were invested more effectively in the reception of asylum-seekers. It identifies three complementary objectives for improving the management of asylum:

  • improving the quality of decisions in the EU;
  • consolidating protection capacity and the processing of protection requests in the region of origin, with a view to sharing responsibilities with the third countries;
  • regulated access to the EU for certain people requiring international protection.

Communication from the Commission of 3 December 2002 “Integrating migration issues in the European Union’s relations with third countries” [COM(2002) 703 final – Not published in the Official Journal]
This communication presents the various measures taken by the Community for refugees, with particular reference to humanitarian aid and development cooperation. The Commission concludes that this assistance is neither sufficient nor adapted to the needs of long-term refugees. It also underlines the importance of initiatives linking emergency aid and rehabilitation to development cooperation and cites Community initiatives such as the European Development Fund (EDF) the MEDA programme and the CARDS programme

Communication from the Commission of 22 November 2000 “Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum” [COM(2000) 755 final – Not published in the Official Journal]
In this communication the Commission suggests that processing asylum applications in the region of origin, combined with a resettlement scheme, could be a way of offering protection to refugees and ensuring that they did not fall victim to gangs engaged in illegal immigration or trafficking. An added advantage would be that asylum-seekers would not have to wait for years to obtain recognition of their status.

 

Dismantling the obstacles to EU citizens’ rights

Dismantling the obstacles to EU citizens’ rights

Outline of the Community (European Union) legislation about Dismantling the obstacles to EU citizens’ rights

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Citizenship of the Union

Dismantling the obstacles to EU citizens’ rights

Document or Iniciative

EU citizenship report 2010 of 27 October 2010 – Dismantling the obstacles to EU citizens’ rights [COM(2010) 603 final – Not published in the Official Journal].

Summary

The report is a strategic initiative of the Commission and presents the main obstacles European Union (EU) citizens continue to face in their daily lives when exercising their EU rights across national borders. It also provides an overview of the measures the Commission intends to take to overcome these obstacles. In parallel with this report, the Commission also adopted the communication “Towards a Single Market Act”, which focuses on the obstacles that consumers, entrepreneurs, workers, etc. face when acting within the single market.

The report identifies the main obstacles that EU citizens may still confront in their private, academic or professional life, when consuming goods and services or in their role as political actors. It proposes concrete solutions to be implemented by the Commission in the next years. A complete list of the 25 legislative actions and other measures aimed at facilitating EU citizens’ daily lives can be found at the end of the report.

Citizens as private individuals

To eliminate the main obstacles EU citizens face in cross-border situations in their private lives, the Commission will propose a series of measures aimed at:

  • making it easier for international couples to know which courts have jurisdiction and which law applies to their property rights;
  • facilitating the free circulation of civil status documents and enabling citizens to easily find multilingual information on justice via the European e-Justice web portal;
  • improving the protection of victims of crime and of persons suspected and accused in criminal proceedings;
  • simplifying the formalities and conditions for the registration of cars previously registered in another EU country and finding solutions to double registration taxes or discriminatory tax treatment of cars;
  • facilitating access to cross-border health care and to eHealth technologies;
  • ensuring that EU citizens whose country of origin does not have a consulate in a non-EU country are effectively assisted by the consulate of any other EU country.

Citizens as consumers

When buying holiday packages or when travelling within the EU as passengers or as tourists, citizens are often not aware of their rights or are confronted with situations where these rights are not sufficiently enforced. Persons with disabilities often face additional difficulties, notably in accessing transportation, information and other goods and services.

EU citizens are still hesitant to purchase goods and services across national borders, mainly because they lack confidence in consumer protection rules (currently, there is no single set of EU-wide consumer protection rules) or are insufficiently aware of the means of redress available to them.

To remove these barriers, the Commission will take a series of initiatives in order to:

  • modernise current rules for the protection of consumers buying package travel;
  • ensure a set of common rights for passengers travelling by any transport mode;
  • propose an EU Disability Strategy 2010-20;
  • increase consumer confidence in tourism products;
  • set out in an understandable way the rights of users of online services;
  • facilitate fast and inexpensive out-of-court resolution of consumer problems (such as Alternative Dispute Resolution mechanisms and mediation).

Citizens as residents, students and professionals

Due to some EU countries’ incorrect application of EU law on EU citizens’ right to free movement within the Union, as well as the cumbersome administrative procedures that they can sometimes impose, citizens are faced with particular difficulties with regard to entry, residence and access to various kinds of benefits. Further obstacles hindering work abroad relate, among others, to EU countries’ divergent social security systems and to complex cooperation between national social security institutions.

To tackle these problems, the Commission will:

  • strictly enforce EU rules on free movement and step up dissemination of information to EU citizens;
  • improve the provision of information to citizens on their social security rights, whilst developing a new system of electronic exchange of data to reduce delays and difficulties in the exchange of social security.

Citizens as political actors

EU citizens participate less and less in European Parliament elections, which is partly attributed to the lack of information on how the EU can impact their lives. Furthermore, the conditions that a few EU countries impose for nationals of other EU countries living in their territory to vote and stand as candidates in these elections or for founding or becoming members of political parties can pose an obstacle to the exercise of citizens’ voting rights.

To eliminate these obstacles, the Commission will ask EU countries to ensure that:

  • EU citizens’ voting rights in their EU country of residence are fully enforced;
  • EU citizens can be members of or found political parties in their EU country of residence;
  • EU citizens are duly informed of their electoral rights.

Information on EU citizens’ rights

Citizens are familiar with the term “citizen of the EU”, but are often not aware of the precise content of the rights that EU citizenship brings them, and are thus prevented from fully making use of these rights. Even though there is already a wealth of EU-level information and problem-solving networks on citizens’ rights, many citizens either are not aware of these networks or are frustrated because information is distributed among multiple sources and therefore hard to find.

To strengthen citizens’ awareness of their rights as EU citizens and the meaning of these rights in their daily lives, the Commission is taking a series of measures with a view to:

  • further developing the Your Europe web portal into an easy to use one-stop-shop information point on the rights of citizens, accessible via the web and a free phone number;
  • streamlining its information networks in EU countries so that citizens easily find the right contact point at national, regional and local level;
  • designating 2013 as the European Year of Citizens;
  • making it simpler for citizens to use the financial support provided by EU level programmes such as “Europe for Citizens (2007-13)” and “Fundamental rights and citizenship (2007-13)”;
  • strengthening independent, professional and high-quality reporting on European affairs.

Related Acts

Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee under Article 25 TFEU of 27 October 2010 on progress towards effective EU Citizenship 2007-2010 [COM(2010) 602 final – Not published in the Official Journal].

Report from the Commission of 27 October on the election of Members of the European Parliament (1976 Act as amended by Decision 2002/772/EC, Euratom) and on the participation of European Union citizens in the elections for the European Parliament in the Member State of residence (Directive 93/109/EC) [COM(2010) 605 final – Not published in the Official Journal].