AGORA INTERNATIONAL JOURNAL OF ECONOMICAL SCIENCES,
AIJES, ISSN 2067-3310, E - ISSN 2067 – 7669, VOL 10 (2016)

The need to harmonize the laws of the European Union regarding the

succesion law

Laura-Dumitrana Rath – Boşca
1
, Loredana Mirela Barmoş

2
, Ioana Andreea (Mihale)

Stănescu
3

Abstract:

The inheritance implies a balance between the will of the one who plans the anticipated transmission of his

assets and the ones waiting for it. The creditors are equally put into equation in the transmission of the

succession. The relations between these three categories of interest are regulated differently regarding the laws

of succession of the states that favor either the interests of the interested in planning his succession or trying a

"equilibrium" dampening discretion of the author of the inheritance, trying to protect his close family members

(reserved to).
4

Key words: inheritance, European Union, harmonize, inheritance certificate, Europe

Introduction

In the past decades the technical scientific progress and continuous discovery of modern means of

communication and the more refined information systems led to the rapprochement between people and people,

states and countries, people and states.

The European Union law only regulates certain relations in civil law, family law, inheritance law, labor

law, etc.

The legal relations parties with foreign elements can be state, individuals or legal entities.

The legal relations with one or more foreign elements are related to several legal systems.

The science of law, the foreign element has been defined as "a circumstance in effect of which is legally

tied to several countries, and consequently, several systems of law or laws belonging to different states."

The objects, the content and the subject form the structure of the legal report and foreign element can be

an attribute of each.

For example, in a closed marriage between two people of different nationalities, the question, before the

officer of civil status, will be on the law applied to the conditions of fund and form of the marriage in cause.

In a legal report of the succession law which includes foreign elements we will encounter the same

problem, the law applicability.

1
Faculty of Juridical and Administration Sciences, Social Sciences Department, Coordinating Teacher

Agora University of Oradea, Oradea, Romania,

*Correspondence: Asis.univ.drd Laura-Dumitrana Rath - Boşca, Agora University of Oradea,

8 Piaţa Tineretului St., Oradea, Romania

E-mail: dumitra1970@yahoo.com
2
Faculty of Juridical and Administration Sciences, student,

Agora University of Oradea, Oradea, Romania,

8 Piaţa Tineretului St., Oradea, Romania

E-mail: loredanabarmos@gmail.com
3
Faculty of Juridical and Administration Sciences, student,

Agora University of Oradea, Oradea, Romania,

8 Piaţa Tineretului St., Oradea, Romania

E-mail: ionystanescu@gmail.com
4
Dan Andrei Popescu, Ghid de drept internațional privat în materia succesiunilor, Magic Print Publishing House, Onești,

2014, pag.6

mailto:loredanabarmos@gmail.com

Although some skeptic people see the "New Europe" as an experiment of transnational governing, those

who believe that we are heading towards an impending globalization and believe in the European dream, which

is characterized by a definite diversity in all aspects of social, cultural, economic, legal, etc., give hope to the

generation´s growing interest for global and locally connection.

The European Union in the harmonization of national laws

The European Union was created by several sovereign states that have decided to choose a common

destiny and in order to achieve agreements and joint actions in specific areas. These specific areas are areas

where it is preferable for the Member States to work and decide together not individual for their interest and

common good.

If when the European Community began to be build namely the 1950 the harmonization of civil law

was not among the objectives, the continuous development of relations and rapports between states and between

nationals of the Member States, free movement of people, goods, capital and services show increasingly clear

need for harmonization of civil law in general, and especially in what concerns the inheritance law.

Today the European Union is not technically a uniform system regarding inheritance law. This is a very

difficult thing taking into account the specifics and peculiarities of the historical traditions evolution of each

Member State and their own moral, family and religious rules.

The law of succession is regulated differently in each Member State, from the classes of heirs, surviving

spouse share, reserve succession and other major issues. This is one of the oldest and most conservative parts of

civil law, reflecting the nation's way of being itself. But we will certainly always remember death and its effects,

but it also marks the new beginning for us.

The inheritance law is not confined only to an amount of technical rules, "accounting", aimed to

distribute a heritage that risks of remains without an owner, but its principles designed to establish rules on

transfer, transmission and share of the heritage, coming to legitimize posterity of the dead. This is concerned

with maintaining and enhancing the harmony of this poster, which must mean dropping reasonableness and

family ethics. The inheritance law is therefore closely linked to the idea of fairness and morality. But they are

reported both in the author of the heritage and, equally, to those who make up the family. In addition, both equity

and morality of an attitude are concepts that evolve over time and cannot be dissociated from the spirit of the age

in which the succession is opened.
5

The laws of succession in the Member States are characterized by their diversity. The unification efforts

in this area are as sensitive as it seems insurmountable.

The succession law is an important branch because it reflects the profound traditions of a country and

mark the end of the author´s heritage and a new beginning for those who will inherit. It is an inexhaustible

source of study because the national solutions of the Member States present a great variety.

Until recently, the European Union considered that the succession law is a branch of law that must be

left to Member States for separate regulations, but the events and diversity, multiplicity of legal relations of

inheritance law, and taking into account the free movement of persons, goods, capital and services and all the

problems that arise from this, it is clear the need for cooperation and the development of cross-border relations

between the Member States, to build both bridges between legal systems and possible regulation uniform.

It may be noted that in the current European context, on different levels, efforts are made to modernize

the law of succession.

However, an only juxtaposition between the laws of England and Germany is sufficient to see that the

structures based on other traditions associated with different social, cultural or economic determinants are so far

apart that it is difficult to reach a common and uniform settlement for the succession law within the European

Union.

Despite this, and the position that for a short period of time was believed that the problems of

succession law is outside the competence of the European Union, the vision of a uniform European law in

matters of succession law always seemed tempting. Therefore, legislators irrespective of the possibilities of EU

5
Dan Andrei Popescu, Ghid de drept internațional privat în materia succesiunilor, Magic Print Publishing House, Onești,

2014, pag. 5

legislative and theoretical arguments of recent years have changed the laws concerning the pro-European spirit

of succession law. The European integration has been one of the most important factors shaping the new

regulation.

Although so far there have been no serious efforts to harmonize European succession law, the concept

of Europeanization of this law is still alive.
6

One question that is impossible to predict today would be whether other amendments to the law of

succession should move towards integration, or whether they should be limited to a simple implementation of

national needs. In any case, it should be noted that the possible drafting of a new law in matters of succession

should be based on a deep discussion about the state law.

The influence of tradition stopped the circulation of national models beyond the state and the implicitly

succession law harmonization at EU level. It is premature to talk about a unified European law of succession,

common in all Member States of the European Union.

Although one of the most important objectives of the European Community was, and still is, to promote

a common market, and not to promote the unification laws of succession.
7

It is worth mentioning that there is still no international convention to standardize the law of succession.

Even in Europe, in an era where a lot of discussion about the Europeanization of the private law, there is no

concrete project regarding succession.
8
But it was explicitly mentioned that the initiative does not refer to family

law and succession law.
9

Some harmonization attempts have been made at EU level since 1989, but this request was left aside

considering that there are other more important areas of civil and criminal law to be harmonized.

In 1994 it was raised the issue of harmonization by designing a European Civil Code, but unfortunately

neither this date has been successful. It was not until July 11, 2001 when a first concrete step in the

harmonization of certain civil matters and contracts is realized. The second practical step has been made in the

Action Plan of the European Commission "A coherent European contract law" on 12 February 2003, when the

Commission presented the findings at the earlier positions taken.
10

As can be assumed, the idea of a European Civil Code - at least on a philosophical level - seems fair

and acceptable. While adjusting the succession law principles and concepts in a model is a very difficult process,

such regulation is why the European Union should adopt measures to harmonize legislation in this area.

So in the absence of uniform rules and national disparities persist, they are a source of significant

problems in legal relations with foreign elements, both for people who want to regulate in advance the situation

of succession and potential beneficiaries, as for third parties holders or purchasers of the succession property.
11

The European Council meeting in Brussels adopted the "Hague Program" in 2004
12

, which show the

necessity to adopt of a unification instrument of the law relating to succession law in the European Union, and

the creation of a European Certificate of Succession. This program does not regulate matters of succession law

but the free movement of people within the EU and the opportunity to demonstrate, through the European

Certificate of Succession, which is the heritage status of the deceased.

August 17, 2015, is the date when the European Regulation No 650/2010 regarding jurisdiction,

applicable law, recognition and enforcement of decisions and authentic instruments of acceptance and not least

the creation of a European Certificate of Succession governing this area of EU law came into force.

This regulation introduces some significant changes in harmonizing the rules on succession law in all

EU countries. It sets a new tool for documenting the succession rights of Europeans.
13

6
B. Ancel, Le droit européen des successions. Commentaire du Règlement no 650/2012 du 4 juillet 2012, eds. A. Bonomi, P.

Wautelet, Brussels 2013, pp. 8
7
Walter Pintens, Familia și succesiunea de drept în Uniunea Europeană. - Enciclopedia Internațională de legi. Vol. 1., 1997,

p. 11
8
http://legeaz.net/dictionar-juridic/drept-succesoral-comparat

9
idem

10
idem

11
idem

12
Dan Andrei Popescu, Ghid de drept internațional privat în materia succesiunilor, Magic Print Publishing House, Onești,

2014, pag. 8
13

Eleanor C. Ritaine, National succession laws in comparative perspective, 14 ERA Forum Publishing House, 2013,

pag.131-154.

The purpose of such regulation should be a fair, but above all effective regulation of succession cases

that affect various countries of the European Union.

It replaces the existing national regulations under international law of succession, which is a major

achievement of EU legislation in this area. This act has caused a lot of controversy even before it entered into

force. It questioned the competence of the European Union to harmonize legislation in this area. Another

controversy is the application field of the regulation and its legal implications.

As a result of increasing migration within the EU and, more growth by acquisition of European assets

outside their country of origin, were the starting points in the standardization of rules that apply to cross-border

successions. Therefore, Regulation No 650/2012 is a response to the idea of unifying the succession law in

Europe.

The divergences in national laws of countries belonging to the EU accounted for a long time a

significant problem. To determine the law (the law of the countries) applicable to a succession or body should

resolve the dispute but it is not always an easy task. This issue has become an increasing challenge for both law

enforcement authorities and for doctrine.

In the European Union there are increasing cross-border succession cases. For this reason, it has been

recognized that the rules of succession law could be the subject of many questions.

The unification of succession law rules took place so far primarily to the international conventions

(international treaties), but this was not enough. As the EU has set itself the objective to ensure the free

movement of people (art. 3 Par. 2 TEU), it was necessary to adopt some actions in the private law area, with

cross-border implications.
14

The regulation is therefore a comprehensive legal instrument governing international succession law of

the European Union.

The European Certificate of Succession is the uniform document which may be issued by notaries or

other competent authorities in successions with foreign elements and is governed by Article 62, art. 63 and (67)

of Regulation (EU) no. 650/2012.

If the heirs apply for a legacy with foreign elements, so the clerk may issue a certificate of inheritance

under Law no. 36/1995 and a European Certificate of Succession under Regulation (EU) no. 650/2012.
15

The European legislature adopted an extensive conception notion of succession, which should include

in its scope "all aspects of civil law relating to assets of a deceased person", that means "all forms of transfer of

assets, rights and obligations of the concerned death, be it a voluntary transfer under a disposition of property

upon death or a transfer form intestate succession.” So the scope of the Regulation is expanded to include all

matters that traditionally the law of the states circumscribes the scope of succession.
16

The recital (67) of Regulation (EU) no. 650/2012 shows that: "For a succession of foreign elements into

the Union to be resolved in a quick, simple and effective way, the heirs, legatees, executors or administrators of

the estate should be able to prove easily the status and / or rights and powers in another Member State, for

instance in a Member State where the property of the succession is located. To enable this, this Regulation

should introduce a uniform certificate, the European Certificate of Succession (hereinafter referred to as "the

Certificate") to be issued for use in another Member State. To respect the principle of subsidiarity, the Certificate

should not substitute internal documents which may exist for similar purposes in the Member States. "

Article 62 of Regulation (EU) no. 650/2012 provides:

"The creation of a European Certificate of Succession

(1) This Regulation creates a European Certificate of Succession (hereinafter referred to as

"certificate"), which is issued for use in another Member State and shall produce the effects listed in Article 69.

(2) Use the certificate is not mandatory.

Jonathan Harris, «The Proposed EU Regulation on Succession and Wills: Prospects and Challenges», 22 Trust Law

International (2008), pp. 181-188
15

Laura Dumitrana Rath-Boşca, Certificat european de moştenitor – vol. Studii şi cercetări juridice europene, Universul

Juridic Publishing House, Bucharest, 2016, pg.35
16

Op.cit. Dan Andrei Popescu pag. 9

(3) The certificate does not replace the internal documents used for similar purposes in the Member

States. However, a certificate issued for use in another Member State produces effects listed in Article 69 in the

Member State whose authorities have issued it in accordance with this Chapter.

Article 63 of Regulation (EU) no. 650/2012 states that:

The purpose of the certificate

(1) Certificate is for use by heirs, the legatees having direct rights to the inheritance and the executors or

administrators of the estate who must prove in another Member State status or to exercise that right of

inheritance or legatee and / or duties of an executor or administrator of the estate.

(2) The certificate can be used, in particular, to demonstrate one or more of the following:

(a) status and / or rights of each heir or, where applicable, each legatee mentioned in the certificate and

respective shares of the estate;

(b) the attribution of a specific asset or specific assets forming part of the estate heir / heirs, as

appropriate, legatee mentioned (legatees mentioned) in the certificate;

From the foregoing it appears that "the certificate of inheritance is issued in inheritance proceedings in

which the heirs, legatees having direct rights for the succession, executors and administrators of the estate must

prove their status or to exercise their corresponding rights in another state member.”
17

When the last habitual residence of the inheritance author or some goods that make up the estate are

located in another state a European Certificate of Succession is issued.

We can also encounter a situation where the element of foreignness to appear after the opening of

succession proceedings, unless it has not been known that the deceased has assets in another European state, it

leads to the issuing of a European Certificate of death after initially it had been issued a national certificate of

death.

The general rule in this jurisdiction is written in art. 4 of the Regulation. According to the article, the

courts "in the Member State in which the deceased was habitually resident at the time of death shall have

jurisdiction to rule on the succession as a whole."
18

Conclusion

"The succession institution is an important component in the economic development and strengthens

family relationships, society as a whole. Beginning with the object, passing over the incipient and empirical rules

and regulations, continuing with a developed and refined European or national law system, the "heritage" or

"succession" has undergone various approaches both in terminology, and in philosophy, determined elements of

economic development, legislative or policy that company ”
19

Currently, it is possible to identify some general areas in which practical solutions in many European

countries do not differ from each other because they are based on the guiding ideas that any potential legislative

divergence is not a reason to consider uniform law impossible in the future.

Given that the core values and principles divergent legislative concepts are the same, finding common

principles (denominators) should allow, in the future, making a detailed discussion on specific solutions and

unified law of successions in the European Union.

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18

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19

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http://legeaz.net/dictionar-juridic/drept-succesoral-comparat