Recognition of decisions given in another participating State [European Regulation in matters of international successions]

The principles governing recognition of decisions given in another participating State

The purpose of the Regulation is to facilitate the circulation and recognition of decisions handed down in matters of succession on the territory of all the participating Member States (Article 39^[1]).
In principle, the substance of the decision handed down in another State must not be reviewed ^[2](Article 41^[2])

The court seised with an application for the recognition of a decision given by a court of another participating State simply grants or refuses the requested authorisation, and must not review the substance of the case.

The decision that is handed down may only be a recognition or a refusal of recognition.

However, Article 55^[3] allows partial recognition of enforceability of some of the matters in the application, when enforceability cannot be given for the judgement as a whole.

Example : Full recognition of a foreign judgement

Sofia, who resided in Germany, died on 20 August 2015. She owned a holiday home in Spain. A German judgement has been given on the sharing-out of this succession.

José, Sofia’s son, makes an application to a Spanish court for the recognition of the German judgement, accompanied by Form [doc] I [doc], for the purpose of proceeding with the sharing-out of the holiday home located in Spain.

The Spanish court that is seised may not modify the German judgement, but only recognise its validity and allow its compulsory enforcement in Spain, where appropriate.

Example : Partial enforcement

Sofia, who resided in Germany, died on 20 August 2015. She was married to Anton, a German national, and was the owner of a holiday home in Spain. A German decision has been given on the matrimonial regime applicable to the marriage between Sofia and Anton, and on the sharing-out of Sofia’s succession.

José, Sofia and Anton’s son, makes an application to a Spanish court for the recognition of the German judgement, accompanied by Form I [doc], for the purpose of proceeding with the sharing-out of the holiday home located in Spain. He limits this application solely to those provisions pertaining to Sofia’s succession, excluding those relating to his parents’ matrimonial regime.

The Spanish court that is seised may recognise the partial validity, in Spain, only of that part of the judgement pertaining to Sofia’s succession.

Several grounds of non-recognition: Article 40.

Several grounds of non-recognition are presented in Article 40^[4]:

If the decision for which enforcement has been sought is manifestly contrary to public policy in the Member State in which recognition is sought because it creates discrimination according to the line of parentage of the heirs / recognises the succession rights of a spouse of the same sex as the deceased / refuses succession rights to a spouse of the same sex as the deceased.
The decision for which recognition is sought was given in default of appearance and the defendant was unable to exercise their rights or arrange for their defence in front of the court.
When examining the foreign decision, particular attention should be paid to the procedure that was followed, to see why the defendant was not present or represented, whether they were informed of the summons or not, whether they were informed of the decision handed down against them, whether they had the possibility of appeal or not.
The decision for which recognition is sought is irreconcilable with another decision given in the Member State in which recognition is sought

Notes

Article 39
Recognition
1. A decision given in a Member State shall be recognised in the other Member States without any special procedure being required.
2. Any interested party who raises the recognition of a decision as the principal issue in a dispute may, in accordance with the procedure provided for in Articles 45 to 58, apply for that decision to be recognised.
3. If the outcome of the proceedings in a court of a Member State depends on the determination of an incidental question of recognition, that court shall have jurisdiction over that question.
Article 41
No review as to the substance
Under no circumstances may a decision given in a Member State be reviewed as to its substance.
Article 55
Partial enforceability
1. Where a decision has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.
2. An applicant may request a declaration of enforceability limited to parts of a decision.
Article 40
Grounds of non-recognition
A decision shall not be recognised:
- a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought;
- b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;
- c) if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;
- d) if it is irreconcilable with an earlier decision given in another Member State or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.