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Summary

TORT LAW: AN AREA WITH MANY BORDERLINES

This book is the third in a new series inaugurated in 2016 entitled ‘Principles of European Tort Law’. As in the two previous books, it aims to reflect on certain aspects that were not subject to specific and detailed treatment throughout the 10 volumes that served as the basis for the elaboration of the ‘Principles of European Tort Law (PETL)’ in 2005. Together with the already existing volumes, as well as the volumes to come, it should contribute to a revised edition of the PETL which, if time and energy permit, should see the light of day within the next decade.

By contrast to other soft law projects, the PETL strive to delimit the area of extracontractual liability, but make no specific effort to trace its borderlines with other branches of the law of obligations – such as contractual liability, unjust enrichment or negotiorum gestio – or with other branches of the law, either public (for instance, in some countries, the liability of public authorities) or private (notably, also in some countries, liability for damage arising in the context of family relationships).

A first caveat to this book is that it does not deal with all the possible borderlines of tort law, but only with its interaction with contract law. When the Group first met in Graz in April 2013 to discuss the borderlines issue, the original proposal embraced most of the abovementioned borderlines in a single Project. However, the vast majority of the members of the Group rightly pointed out that, although the project was very attractive, it was hardly feasible as a single Project, and that it was better to concentrate first on an area where border frictions were: more common, i.e. happened in most of the countries under survey; important, i.e. had a greater complexity and practical importance; and that were also more frequent. The obvious candidate was then the borderlines between contract and tort and a new draft questionnaire was presented in October 2013 in Girona and submitted to discussion by the Group.

I must confess that at first I was quite reluctant to confine the object of analysis to the border area between tort and contract, since I thought it was not as unexplored as some other areas.

Summary

INTRODUCTION

Since the 19th century, Switzerland has established a net of bilateral treaties dealing with a number of private international law issues, with both European and non-European countries. Several of these instruments also cover international succession matters.

To begin with, a number of Swiss bilateral treaties regulate the reciprocal recognition and enforcement of decisions among the Contracting States. While an 1869 treaty with France was denounced in 1992 after the ratification of the 1988 Lugano Convention, similar instruments are still applicable in the relationships with several other Member States of the EU. Although these treaties also cover decisions rendered in succession matters, they do not interfere with the European Succession Regulation (SR), which governs only the mutual recognition and enforcement of decisions among the Member States.

Another group of bilateral instruments impose only some limited cooperation duties on a Contracting State's authorities whenever a citizen of the other Contracting State dies within their territory, such as the duties to inform the authorities of the national State or to take conservation measures to protect the estate's assets. As in the previous case, the European Regulation is not affected by these narrow cooperation mechanisms.

The only bilateral conventions that do interfere with the Succession Regulation are those that contain common rules on jurisdiction and/or the applicable law. While two treaties within this category are in force with third States (Iran and the United States of America), two of them are applicable in relationships with Member States of the EU bound by the Succession Regulation, i.e. Greece (Treaty 23) and Italy (Treaty 20).

First in time and practical importance, the Convention between Italy and Switzerland of 22 July 1868 includes in its Article 17 rules specifically regulating the jurisdiction over disputes concerning the estate of a citizen of one Contracting State with a last domicile in the other Contracting State. These jurisdictional rules, based on the nationality of the deceased, have been interpreted by the courts of both countries as also implicitly including a choice-of-law rule.

By contrast, Article 10(3) of the Convention between Greece and Switzerland of 1 December 1927 contains only a choice-of-law rule, also based on the last nationality of the deceased.

Summary

INTRODUCTION

Among the third-State cases, the cases related to Turkey are of paramount importance for European private international law by virtue of the substantial number of Turkish nationals resident in the Union. According to the numbers provided by the official statistical office of the European Union (Eurostat) in 2011, Turkish citizens constitute the second largest group of third-country nationals living in the Union, with approximately 2.1 million citizens. It seems that this number has not changed much in recent years. The practical significance of the Turkey-related cases is even bigger for the European Succession Regulation (hereinafter ‘the Regulation’), in which treaties between Member States and Turkey covering issues of succession enjoy priority of application as a consequence of the so-called ‘Achilles’ heel’ of the Regulation (Article 75). Turkey has such treaties with Germany (Turkish-German Consular Treaty of 1929 Treaty 19), Italy (Turkish-Italian Consular Treaty of 1929 Treaty 21) and Hungary (Turkish-Hungarian Consular Treaty of 1938 Treaty 24). Whereas the numbers of Turkish nationals residing in Italy and in Hungary 10 are not very high, roughly 1.5 million Turkish nationals are resident in Germany. This means that a significant number of the thirdcountry- related succession cases would fall outside the system provided by the Regulation. These treaties were signed almost a century ago and, hence, reflect the legal and political atmosphere of those times. In this sense, they are incompatible with the rules of the Regulation and thus vitiate the desired harmonization through it.

Their impact on Turkish practice, however, does not seem to be as considerable as in the European Union. In the first place, the potential number of cases they might be applicable to is not many. According to the statistics provided by Turkish Statistical Institute (TurkStat), there were only around 75,000 German and 3,000 Italian residents in Turkey in the year 2016. The number of Hungarian residents was not even presented in the statistics, probably because of the fact that it is under 500. Furthermore, treaties seem to have been forgotten by the Turkish courts in many cases, unlike the courts of contracting Member States actually applying them.

Summary

In the last decade, the European Union (EU) has unified large segments of private international law for its Member States. The enacted Regulations take precedence over national private international law rules and also over international treaties concluded between the Member States, as far as EU law does not provide otherwise. However, existing bilateral and multilateral treaties concluded by Member States with third States enjoy priority over European private international law rules. This priority rule, which can be found in most of the private international law Regulations adopted so far, has been described as the ‘Achilles heel’ of the European conflict-of-law system. It hampers the uniform application of EU law and creates friction with harmonized procedural rules. In addition, the legal relationships for a considerable number of third State citizens and – as far as the treaties are universally applicable – even all covered relationships are not governed by EU private international law but by rules laid down in international treaties, which in part date back to the beginning of the 20th century.

The implications of this pluralism on the functioning of the rather new European private international law rules have not yet been explored in depth. The various international treaties or conventions concluded by the current Member States have neither been comprehensively collected nor has their content been analyzed in a systematic manner. This book, which is the fruit of an international working group set up by the Universities of Augsburg and Munich in 2017, aims to partly fill this gap by starting with a kind of ‘test drilling’ in the area of succession upon death. Reporters from various EU Member States loosely representing the ‘four corners of the EU’ analyze the scope and effect of treaties and conventions concluded by their countries with third States in the area of succession law and analyze their impact on the functioning of the European Succession Regulation (Regulation No. 650/2012, hereafter: SR). As in other EU instruments, Article 75(1)1 SR provides that its rules do not affect bilateral treaties concluded with third States before the Regulation was enacted. The reports contained in this book cover Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Italy and Sweden. The comparative report at the end of this book also takes into account treaties concluded by Estonia and (without claiming completeness) by Greece.

Summary

INTRODUCTION

This contribution presents the private international law rules applicable in Belgium in matters of succession following the entry into force of Regulation (EU) 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 on the creation of a European Certificate of Succession. In Belgium, the European Succession Regulation currently governs all matters related to succession.

The research project aims at identifying ‘frictions’ between international conventions (often bilateral conventions) concluded between Member States and third States in the field covered by the European Succession Regulation. Indeed, as underlined in the research project description, existing international conventions between Member States and third States will take precedence over the Regulation as far as they concern matters covered by the Regulation (Article 75(1) SR).

In respect of succession, only two bilateral conventions have been concluded between Belgium and third States: the Convention of 2 May 1934 between Belgium and the United Kingdom for the reciprocal enforcement of judgments and the Convention of 29 April 1959 between Belgium and Switzerland on recognition and enforcement of judicial decisions and arbitral awards. These conventions solely concern the matter of recognition and enforcement of a decision and not international jurisdiction and the applicable law in matters of succession. Their influence on the European Succession Regulation is thus minor, and these conventions apply in rare circumstances.

In the first part of the report, the two bilateral conventions signed between Belgium and third States (i.e. every State that is not bound by the European Succession Regulation) will be presented (below, section 2). In the second part of the report, the provisions of the Belgian Private International Law Code in matters of succession will be discussed (below, section 3). Finally, the last part of this report will illustrate some of the problems that arise due to the lack of bilateral conventions or treaties concluded with third States (below, section 4).

Because of the specific Belgian context, this report analyzes more specifically the consequences for the European Succession Regulation resulting from the absence of bilateral and multilateral treaties or conventions concluded between Member States and third States in matters of succession.

Several Member States of the European Union have concluded treaties and conventions with Third States dealing with questions of succession law in cross-border matters. Some of these treaties originate from the beginning of the 20th century and are outdated. The European legislator, however, cannot supersede these treaties and conventions unilaterally with its regulations, in fact they enjoy priority over the European Succession Regulation. The harmonizing effect of European private international law is hence endangered, the more so, as these treaties and conventions often cover large groups of third State nationals in the respective Member State. This book analyzes the background, scope and practical impact of bilateral treaties and multilateral conventions concluded by selected Member States of the European Union with third States, both from the European and the third State perspective. It evaluates the impact of these treaties and conventions on the functioning of the European Succession Regulation and the possibilities to facilitate the interplay between these instruments and European private international law. Anatol Dutta holds a Chair of Private Law, Private International Law and Comparative Law at the Ludwig Maximilians University Munich. Wolfgang Wurmnest holds the Chair of Private Law, Commercial Law, Private International and Comparative Law at the University of Augsburg.

Summary

INTRODUCTION

Austria is bound by the Hague Convention of 5 October 1961 on the Conf icts of Laws Relating to the Form of Testamentary Dispositions and is party to several treaties regarding matters of succession such as legal assistance, consular rights, applicable law, jurisdiction and mutual recognition and enforcement of decisions. Treaties with Member States remain applicable to the extent that they concern matters that do not fall under the scope of the European Succession Regulation (Article 75(2)), e.g. obligations of notification and consular rights of participation. Treaties with third States (within the meaning of the Succession Regulation), on the other hand, take precedence over the Succession Regulation, as is provided by Article 75(1) SR. However, to the extent that treaties with third States covers matters which do not relate to the subjects of the Succession Regulation, e.g. the recognition and enforcement of decisions given in third States, there is no conflict in application triggering the provisions of Article 75(1) SR.

OVERVIEW

The following treaties between Austria and third States take precedence over the Succession Regulation:

Summary

INTRODUCTION

The final contribution of this book will first provide an overview of the treaty law and its historical background, topics discussed in great detail in the various country reports (section 2). It then analyzes the impact of the treaty law on the functioning of the Succession Regulation (section 3). As the treaty law affects the functioning of the Succession Regulation in various ways, this contribution will examine the question of whether there are any compelling reasons for those EU Member States that do not plan to terminate or adapt the treaties concluded with third States, to keep the rules on jurisdiction and/or applicable law as enshrined in the treaties (section 4). As these rules are – at least from the perspective of the European Union as opposed to that of (most) third States – based on outdated concepts of private international law which create frictions with the Succession Regulation, various policy options are discussed to improve the law and the working of this Regulation (section 5). A summary concludes this contribution (section 6).

INSTRUMENTS TAKING PRECEDENCE OVER THE SUCCESSION REGULATION: A SURVEY

MAPPING THE LAW

The country reports have revealed that not all EU Member States scrutinized in this book have concluded bilateral agreements or multilateral conventions that take precedence over the EU Succession Regulation. As a rule of thumb, the further east one looks, the more agreements one finds between EU Member States and third States covering succession issues, at least partly.

Starting in the west, Belgium is not party to a single agreement that could be in conflict with the Succession Regulation. There are only two general instruments on the recognition and enforcement of judgments with Switzerland and the United Kingdom. However, neither of these instruments affects the respective rules in the Succession Regulation as they concern the recognition and enforcement of Belgian judgments in Switzerland and in the United Kingdom and vice versa, an issue which is not covered by the Succession Regulation. This Regulation deals exclusively with the free movement of decisions in succession matters amongst the participating Member States.

Summary

THE INTERESTS OF THE EUROPEAN UNION

The country reports in this book show that the private international law treaties of the Member States with third States cannot be seen as being in the interest of the European Union (EU). These bilateral or regional conventions diminish the harmonizing effects of European private international law, especially of the common rules on jurisdiction and applicable law, as based on Article 81(2)(c) of the Treaty on the Functioning of the European Union (TFEU). Only the recognition and enforcement provisions of the European Regulations are unaffected, at least as far as the Member State's conventions are restricted to the recognition of third State decisions in the Member States or Member States‘ decisions in third States: the private international law Regulations of the EU deal with the cross-border effects of European decisions only and leave the circulation of judgments between Member States and third States to the national law of the Member States, including their treaties. Third State treaties on recognition and enforcement might even be – as Stéphanie Francq and Julie Mary have stressed in the Belgian report – in the interest of the EU, at least as far as the jurisdictional concepts of the Regulations are in fact transported to third States by reviewing the indirect jurisdiction of the third State under the European jurisdictional standards.

The fact that the treaties of the Member States limit the harmonizing effects of EU law is, as such, already not ideal. However, the interference with the harmonized choice-of-law rules in the area of the Succession Regulation is particularly damaging. Here the European legislature has introduced an instrument whose functioning is in fact dependent on European decisional harmony: the European Certificate of Succession can operate effectively only if the certified position as an heir, as a legatee having direct rights in the succession, as an executor of wills or as an administrator of the estate (cf. Article 63(1) SR) is assessed in all Member States on the basis of the same applicable law.

Summary

INTRODUCTION

The Czech Republic is party to a number of bilateral treaties on legal assistance that contain provisions on succession law. A number of these bilateral treaties deal not only with legal assistance in civil matters but also with legal assistance in criminal matters. Apart from national law and the law of the European Union, they represent another source of private international law in the Czech Republic. Pursuant to Article 10 of the Czech Constitution, promulgated treaties, to whose ratification the Parliament of the Czech Republic has given its consent and by which the Czech Republic is bound, form a part of the Czech legal order and take precedence over conflicting national rules. The relationship between international treaties and national law is also explicitly stipulated in Section 2 of the Czech Act on Private International Law (hereinafter ‘Czech PILA’). According to this provision, the statute is applied when an international treaty by which the Czech Republic is bound does not provide otherwise. Bilateral treaties thus take priority, provided the respective issue is regulated differently than in national law, irrespective of which rule was adopted earlier. The same scheme applies also to multilateral treaties. From the perspective of the Czech Republic the relevance of multilateral treaties in the field of succession is minimal. The Czech Republic is not bound by the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. The only multilateral treaty in the field of succession law to which the Czech Republic is a party is the 1973 Hague Convention Concerning the International Administration of the Estates of Deceased Persons. The material scope of this Convention is not in conflict with the scope of the Succession Regulation. Therefore, this Convention is not considered as relevant within this contribution.

The majority of bilateral treaties on legal assistance were concluded before 1993, the year when the former Czechoslovakia split into two independent States: the Czech Republic and the Slovak Republic. Therefore, in the majority of the bilateral treaties the contracting party is either the Czechoslovak Republic, the Czechoslovak Socialist Republic or the Czech and Slovak Federative Republic, depending on the date of their signature and respective changes in the political arrangement of the Czechoslovak State.

Summary

The contributors were equipped with the following questionnaire in order to structure their reports.

INTRODUCTION

Each report should address the following points. The questionnaire should, however, not be regarded as exhaustive. If in a certain jurisdiction or region other problems or challenges arise, those issues should be discussed as well. The draft structure outlined below might be a possible framework, but variations might be necessary for some jurisdictions.

TREATIES AND CONVENTIONS TAKING PRECEDENCE OVER THE EUROPEAN SUCCESSION REGULATION

– Has your jurisdiction ratified one or more bilateral treaty/ies or multilateral convention(s) (hereafter: ‘treaty’ or ‘treaties’) that take precedence over the rules of the European Succession Regulation (hereafter: ‘SR’) pursuant to Article 75 SR?

– If so, please provide a comprehensive list of those treaties, describe their (historical, social and/or economic) background and provide an official source (Official Journal or the like).

– Describe for each treaty its scope of application (ratione materiae, ratione personae). The following issues might in particular be of interest:

Summary

INTRODUCTION

The Treaty of Amsterdam, which gave the EU competence in private international law, entered into force in 1999. Before that many States had for more than a century satisfied their needs in this area by entering into multilateral or bilateral treaties with other States.

When the EU very diligently started to exercise its new competence, the question of the destiny of earlier treaties and conventions arose. Such treaties may have considerable regional or bilateral importance for the State parties. Would the EU tolerate the divergence that follows from the continued application of such treaties? And if so, in what way do the treaties affect the unity that was purported by concluding the EU instrument in question?

In the next section, the treaties which Finland and Sweden have concluded within the sphere of the European Succession Regulation (SR) are examined. After an enumeration and a short description of these treaties, the focus is on the Nordic Inheritance Convention (NIC) (Treaty 14), which from the point of view of the theme of this book is by far the most important and most interesting. The historical background of the NIC is outlined first, in order to elucidate its importance for the Nordic States. There after the contents of the NIC are described in order to answer two questions: (1) In what way does the NIC affect the application of the Succession Regulation in Finland and Sweden; and (2) How does the Regulation affect the application of the NIC and the fulfilment of the needs and interests that are behind the conclusion of it?

TREATIES AND CONVENTIONS TAKING PRECEDENCE OVER THE EUROPEAN SUCCESSION REGULATION

Finland is a party to three and Sweden to two treaties within the scope of the European Succession Regulation. Both States have ratified the Hague Convention of 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. They ratified it without any reservations and, in accordance with Article 75(1) SR, apply it instead of the Regulation. This means that Finland and Sweden are a little bit more liberal as regards the acceptable form of a will than the Member States that apply Article 27 SR. The content of the Hague Convention of 1961 is so well known that it is unnecessary to describe it here.

Summary

INTRODUCTION

In the 1950s and 1960s, former Yugoslavia entered into bilateral treaties on legal assistance with Austria (Treaty 3), Bulgaria (Treaty 22), Czechoslovakia (Treaty 13), Hungary (Treaty 25), Poland (Treaty 26) and Romania (Treaty 27). Today these treaties are in force between the four successor countries of Yugoslavia – i.e. Serbia, Bosnia and Herzegovina (henceforth: B&H), North Macedonia (henceforth: Macedonia) and Montenegro – and all the abovementioned European countries, which in the meantime have become EU Member States (in the case of Czechoslovakia, the Czech Republic and Slovakia as its successors). Each of these bilateral treaties contains the conflict-of-laws rules and procedural rules on succession that take precedence over, respectively, the rules of the Succession Regulation (Article 75(1)) in the contracting parties that are now EU Member States and the national private international law (PIL) rules in the four successor countries of former Yugoslavia that are not EU members. As these rules are based on the principle of nationality and the principle of the location of the estate, they are completely incompatible with the rules of the Succession Regulation and are, therefore, undesirable in the EU Member States. From the perspective of the successor countries of former Yugoslavia, a general assessment of the rules on succession contained in bilateral treaties cannot be given, mainly because international succession law is not consistently regulated in the successor countries: the rules of Serbian, B&H and Macedonian international succession law are based on traditional principles that correspond to those of the bilateral treaties, while the rules of Montenegrin international succession law follow the principles contained in the Succession Regulation. In order to make a proper assessment, it is first necessary to make a few remarks on the conflict-of-laws and procedural rules on succession in Serbia, B&H, Macedonia and Montenegro and then to look into the conflict-of-laws regimes and the procedural rules of the bilateral treaties in detail.

A FEW REMARKS ON NATIONAL PRIVATE INTERNATIONAL LAW RULES IN SUCCESSION MATTERS

SERBIA AND BOSNIA AND HERZEGOVINA

The main legal source of private international law in Serbia and B&H is the Act on Resolution of Conflict of Laws with Regulations of Other Countries (henceforth: PIL Act), which was enacted in 1982 in the former Socialist Federal Republic of Yugoslavia (henceforth: SFRY) and is, with minor amendments, still in force today in both countries.

Summary

The members of the working group have discovered various agreements between Member States and third States that touch upon the areas harmonized by the Succession Regulation. The treaties and conventions are listed below under the name of the EU Member State that has concluded it. As many countries have concluded more than one agreement, all agreements of one country are reproduced in alphabetical order following the common name (as opposed to the official name) of the contracting state and not in chronological order, even though some country reports analyze the respective instruments in the order of their conclusion. The texts are reprinted in (one of) the language(s) of the EU Member State that concluded it and in an (unofficial) English translation. If the authentic language is a language other than the language of the EU Member State that has concluded it, the text is reproduced in the agreement's authentic language together with an English translation. Treaties concluded by third States with EU Member States that are not covered by country reports in this book (‘other EU Member States’) are reproduced in the language of the third State together with an (unofficial) English translation. The treaties are referred to throughout the volume by their number.

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Frontmatter

Introduction

Summary

Switzerland

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About the Editors

PART I - THE PERSPECTIVE OF EU MEMBER STATES

Turkey

Summary

Introduction

Summary

Belgium

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European Private International Law and Member State Treaties with Third States

Austria

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Comparative Report and Policy Perspectives

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The Perspective of the European Union

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Czech Republic

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Questionnaire

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Finland and Sweden

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Bosnia and Herzegovina, Serbia, North Macedonia and Montenegro

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Annex

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PART III - THE PERSPECTIVE OF THE EUROPEAN UNION AND A COMPARATIVE OUTLOOK

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List of Abbreviations

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European Private International Law and Member State Treaties with Third States

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