What the Regulation says [European Regulation in matters of international successions]

What the Regulation says

Admission of a renvoi is subject to certain conditions

The rules of conflict of the State whose law has been specified pursuant to the Regulation must make a renvoi either:

to the law of a Member State.
to the law of a third State which will then apply its own law.

Renvoi to the law of a Member State.

The first hypothesis must not be reduced to that of a renvoi in the first degree.

The law specified in this way may be that of the State of the forum or that of another Member State.

Admitting the renvoi here will facilitate the task of the authority that has been seised. In the one case, its role will be to apply its own law while in the other, it will be that of a Member State, for which we can hope that information will be more easily accessible.

Example :

A German who was a resident in Japan died leaving immovable property in France. The French courts were seised pursuant to Article 10^[1] of the Regulation.

Pursuant to Article 21^[2], Japanese law is applicable to the succession.

But Japanese law makes a renvoi to the law of the nationality of the deceased. The French courts must admit the renvoi in favour of the law of a Member State.

Renvoi to the law of a third State which will then apply its own law.

The second hypothesis is that of a renvoi that results in specifying the law of a third State that accepts to apply.

This is a renvoi of the second degree.

However, if the law of the third State refuses to apply, the renvoi must not be admitted.

Example :

A Japanese national died in Morocco leaving immovable property in Belgium. The Belgian courts have jurisdiction pursuant to Article 10^[1].

Article 21^[2] of the Regulation specifies the application of Moroccan law as the last residence of the deceased. The Moroccan rules of conflict make a renvoi to Japanese law as the nationality of the deceased.

The Japanese rules of conflict also give jurisdiction to the national law of the deceased. The French judges will therefore apply Japanese law.

Method : Admission of the renvoi

Article 21 of the Regulation^[2]	Law of the last residence	Moroccan law
Moroccan rule of conflict	The law of the nationality	Japanese law
Japanese rule of conflict	The law of the nationality	Japanese law

Example :

A Brazilian died in Morocco leaving immovable property in Belgium. The Belgian courts have jurisdiction pursuant to Article 10^[1].

Article 21^[2] of the Regulation specifies the application of Moroccan law as the last residence of the deceased. The Moroccan rules of conflict make a renvoi to Brazilian law as the nationality of the deceased.

The Brazilian rules of conflict, meanwhile, give jurisdiction to the Moroccan law of the last domicile of the deceased. The French judges will apply Moroccan law.

Method : Renvoi set aside

Article 21 of the Regulation^[2]	Law of the last residence	Moroccan law
Moroccan rule of conflict	The law of the nationality	Brazilian law
Japanese rule of conflict	Law of the last domicile	Moroccan law

Notes

Article 10
Subsidiary jurisdiction
1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:
  - a) the deceased had the nationality of that Member State at the time of death; or, failing that,
  - b) | the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed.
2. Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.
Article 21
General rule
1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.
2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.