National news, 17 July 2020
CISUR Project – Recommendations on the application of the EU Succession Regulation
> The contents of this publication represent the views of the authors and not of CNUE.
The implementation of 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 the creation of a European Certificate of Succession (hereinafter: the Regulation) has been the subject of research, discussion and training among legal professionals (notaries, judges, lawyers), judicial institutions, chambers of notaries, bar associations and academic communities in both countries) applying the Regulation in Croatia and Slovenia over the past 20 months.
In the framework of the project “Strengthening Judicial Cooperation on the Implementation of the Succession Regulation in Croatia and Slovenia (CISUR)” (hereinafter: the project), “Recommendations on the Implementation of the Succession Regulation” (hereinafter: the recommendations) and “A Guide for the Implementation of the Succession Regulation (EU) No 650/2012” (hereinafter: the guide : Guide) were developed to contribute to a better understanding of the main challenges and problems encountered in practice when applying the Regulation, but also to propose a response to the recognised challenges, and to raise awareness of the need to continue to educate legal practitioners and inform EU citizens; leading to the application of the Regulation in line with its main objective – to facilitate the exercise of EU citizens’ rights in cases of cross-border succession.
The project was carried out by the Croatian Legal Centre (a civil society organisation from Croatia), in partnership with the Ministry of Justice of the Republic of Croatia, the Chamber of Croatian Notaries, the Peace Institute (a civil society organisation from Slovenia) and the Chamber of Notaries of Slovenia, and in association with the Supreme Court of the Republic of Croatia. The project is co-financed by the European Union’s Justice Programme (2014-2020). A special role in the project, consisting of monitoring and evaluating the implementation of the project, has been assigned to the Project Board, consisting of representatives of the project partners and associated institutions: CLC (Vesna Grubić, Director), Ministry of Justice of the Republic of Croatia (Ivan Crnčec, Deputy Minister for the European Union and International Cooperation, Directorate for the European Union and International Cooperation), Croatian Chamber of Notaries (Ljiljana Vodopija Čengić, Notary), Peace Institute (Katarina Vučko, a legal expert), the Chamber of Notaries of Slovenia (Sonja Kralj, President of the Chamber of Notaries of Slovenia), the Supreme Court of the RoC (Damir Kontrec, Judge and President of the Civil Department of the Supreme Court) and the key expert of the project, Professor Emeritus of Law Mihajlo Dika.
The recommendations were based on research on the regulatory and institutional framework for the implementation of the Regulation, and on the current state of play in Croatia and Slovenia, conducted in the first phase of the project. The research included the drafting of a “Desk Research Report on the Regulatory and Institutional Framework for the Implementation of the Regulation in Croatia and Slovenia” and empirical field research developed through semi-structured interviews and focus groups with notaries, judges and lawyers. The research was completed by the elaboration of the “Final report on the research conducted on the implementation of the Succession Regulation in Croatia and Slovenia”.
The main challenges in practice when applying the Regulation, recognised in the recommendations, were related to the following aspects
– the assessment of the “cross-border element” in succession matters ;
– the determination of the habitual residence of the deceased at the time of death as a connecting factor for the determination of the general jurisdiction and the law applicable to the succession as a whole
– the need to make EU citizens aware of the existence of the possibility to settle succession issues in advance, by choosing the applicable law and concluding a choice of court agreement;
– the need to take into account the nature and scope of an authentic instrument in the Member State of origin when establishing its evidential effects in another Member State (and a further reference to “the most comparable effect”);
– the European Certificate of Succession: how to proceed in cases where the content of a decision on succession and that of a certificate are contradictory; the persons authorised to request its issue; the complexity of the form for issuing the certificate; the costs of translating the certificate; the situations of so-called defective certificates (cases where the
Some of the recommendations include
– to consider simplifying the form for issuing the European Certificate of Succession;
– to establish a special register at EU level, as well as national registers, where the time of the introduction of the succession procedure, as well as the course of the procedure, the application, the issue of a European Certificate of Succession and all other circumstances related to a certificate (its rectification, modification, withdrawal and temporary suspension of its effects) would be recorded;
– organise educational activities and training programmes not only for practising notaries, judges and lawyers, but also for other interested parties (lawyers working in banks, pension insurance institutions, etc.).
The research results and recommendations were presented and discussed at the expert meeting held in Ljubljana on 3 December 2019, organised for stakeholders applying the Regulation in Croatia and Slovenia. The meeting was an opportunity for representatives of the judiciary, notaries, lawyers, the Ministry of Justice and academic communities from both countries to exchange their knowledge and experience, and to draw some conclusions mainly corresponding to the recommendations, with a particular focus on the following topics: cross-border succession cases and determination of habitual residence, choice of law, the idea of establishing a special European register of succession procedures and European certificates of succession.
In the second phase of the project, a special guide was developed to facilitate the overall implementation of the Regulation and to integrate the results of the project into professional practice and understanding of the Regulation among members of the relevant professional groups (judges, notaries and lawyers). The guide and teaching materials, including lectures and case studies on the practical application of the Regulation, prepared by the team of education experts in each state, served as the basis for the subsequent training. The pilot training took place on 15-16 May 2020 in Croatia, and on 11-12 June 2020 in Slovenia. After the pilot training, online training courses were scheduled and delivered in each state using the same teaching materials, which remain available to judges, notaries and lawyers in the respective states.
In addition, the document “Information for citizens of EU Member States in case of cross-border succession” was drafted, providing information and instructions to EU citizens, potential heirs in cases of cross-border succession.
The final event of the project – an international colloquium – held online on 3 July 2020, provided an opportunity for the main stakeholders applying the Regulation to discuss the most important recommendations and present their views on future policy actions, in two round tables: I. The creation of a special register at EU level and the Succession Regulation (EU) No 650/2012 and II. Amendments to national implementing legislation and uniform application of the Succession Regulation (EU) No 650/2012 – Croatian and Slovenian perspectives. At the same time, this event provided a link for further cooperation between legal experts and public authorities in the field of implementation of the Regulation, both in Croatia and Slovenia. The international colloquium ended with the adoption of conclusions concerning possible legislative amendments and uniform application of the Regulation on succession. Representatives of the CNUE and the EJN also participated in the colloquium and contributed significantly to its success.