What the Regulation does not say [European Regulation in matters of international successions]

What the Regulation does not say

The Regulation says nothing about the hypothesis in which the conflict rule of a third State might make the movable and immovable property subject to different rules of conflict.

According to the assets of the deceased, we might find ourselves in a situation where the rule of conflict of the third State makes a partial renvoi.

Accepting such a renvoi will result in the different assets that make up the estate of the deceased being subject to two different laws, thereby abandoning the principle of unity that is one of the foundations of the Regulation.

Example :

An Austrian died in the United Kingdom, leaving behind immovable property in Austria. Article 21^[1] of the Regulation specifies English law. English private international law tends to make a distinction between movable and immovable property.

The former is subject to the law of the last domicile of the deceased. The latter is subject to the law of its location. English law therefore accepts that it applies to the movable property, but specifies that Austrian law must apply as the location of the immovable property.

Neither the letter of Article 34,^[2] nor the terms of the Preamble can set aside the renvoi in this case. The majority of the doctrine argues in favour of it being accepted.

Notes

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.
Article 35
Renvoi
1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi:
  a) to the law of a Member State; or
  b) to the law of another third State which would apply its own law
2. No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22, Article 27, point (b) of Article 28 and Article 30.