Public policy
The principle
By the terms of Article 35 of the Regulation[1]," the application of a provision of the law of a State specified by this Regulation may only be set aside if such application is manifestly incompatible with public policy"
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This public policy exception may also be invoked whenever the application of the foreign law specified by the Regulation produces an outcome that is a manifest breach of the international public policy of the forum.
Legal professionals called upon to settle a succession, notably pursuant to a foreign law (or to provide advice on a choice of law) should therefore assess the compatibility of the content of that law with the international public policy of the forum. This is quite new and is certainly a challenge.
Note :
International public policy is necessarily a fluctuating notion and one that is likely to change, meaning that it is quite impossible to draw up an exhaustive and never-changing list of the foreign legal provisions that would breach the public policy of the forum. However, there can be little doubt that certain principles must clearly be upheld and result in any foreign law that breaches them being set aside.
The principle of non-discrimination
Such is the case of the principle of non-discrimination: any foreign law resulting in discrimination between those eligible to inherit on account of their religion, nationality, gender or birth, will most certainly be set aside.
For example, a foreign law that totally excludes a child born outside wedlock or in adultery from a succession, must be set aside because it breaches the international public policy of a Member State, as the Member States guarantee equality between the children in matters of succession, whatever the child-parent relationship.
Reserved share
A more awkward question is that of the reserved share about which much has been written and which does not exist in all the Member States. While it is certain, in our opinion, that a foreign law that makes different provisions in terms of the proportion or nature of such a share reserved for the descendants should not be regarded as contrary to international public policy, the position is less clear when the application of the foreign law would allow an heir entitled to a reserved share to be excluded purely and simply from the succession.
In the latter case, French international public law in particular would be likely to oppose the application of such a law, at least when the the connections with France are close.
However, if the connections appear to be more distant while being close with the State whose law is applicable, the matter of public policy should not result in the other law being set aside. The question remains open, however.