The contents of this publication represent the views of its authors and not those of the CNUE.
The implementation of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, the recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession, and on the creation of a European Certificate of Succession (hereinafter: the Regulation) was the subject of the research, discussion and education among legal professionals (notaries, judges, lawyers), judicial institutions, chambers of notaries, bar associations and the academic communities of both countries), applying the Regulation in Croatia and Slovenia in the last 20 months.
Within the scope of the project “Enhancing Judicial Cooperation on the Implementation of the Succession Regulation in Croatia and Slovenia (CISUR)” (hereinafter: the Project) „The Recommendations on the Application of the Succession Regulation” (hereinafter: the Recommendations) and „A Guide to the Implementation of the Succession Regulation (EU) No 650/2012“ (hereinafter: Guide) were developed, as a contribution to a better understanding of the main challenges and problems in the practice while applying the Regulation, but also to propose an answer to the recognized challenges, and to raise awareness of the necessity to continue to educate legal practitioners and to inform EU citizens; leading to the application of the Regulation in accordance with its main purpose – to make it easier for the EU citizens to exercise their rights in the cases of cross-border succession.
The Project was run by the Croatian Law Centre (a civil society organisation from Croatia), in partnership with the Ministry of Justice of the Republic of Croatia, the Croatian Notaries Chamber, the Peace Institute (a civil society organisation from Slovenia) and the Chamber of Notaries of Slovenia, and in association with the Supreme Court of the Republic of Croatia. The Project is co-funded by the European Union’s Justice Programme (2014-2020). A special role in the project, to control and evaluate the project implementation, was entrusted to the Project Board consisting of the representatives of the project partners and associated institutions: CLC (Vesna Grubić, Director), Ministry of Justice of the Republic of Croatia (Ivan Crnčec, Assistant Minister for the European Union and International Cooperation, European Union and International Cooperation Directorate), Croatian Notaries Chamber (Ljiljana Vodopija Čengić, a notary), Peace Institute (Katarina Vučko, a legal expert), The Chamber of Notaries of Slovenia (Sonja Kralj, President of the Chamber of Notaries of Slovenia), the Supreme Court of the RoC (Damir Kontrec, a judge and the President of the Civil Department of the Supreme Court) and the key expert in the Project, Emeritus Professor of Law Mihajlo Dika.
The basis for the Recommendations was a research on the regulatory and institutional framework for the implementation of the Regulation, and on the current state of play in Croatia and Slovenia, conducted in the first phase of the Project. The research included the drafting of a „Desk Research Report on the Regulatory and Institutional Framework for the Implementation of the Regulation in Croatia and Slovenia“ and the empirical field research developed through semi-structured interviews and focus groups consisting of public notaries, judges and lawyers. The research was completed by the development of the „Final Report on the Conducted Research on the Implementation of the Succession Regulation in Croatia and Slovenia“.
The main challenges in the practice while applying the Regulation, recognized in the Recommendations were connected with the following aspects:
• the assessment of the “cross-border element” in succession matters;
• determining the habitual residence of the deceased at the time of death, as the connecting factor for the determination of general jurisdiction and the applicable law to be applied to the succession as a whole;
• the necessity to raise the awareness of EU citizens regarding the existence of the possibility to regulate the matters of succession in advance, by choosing the applicable law and by making the choice-of-court agreement;
• the necessity to take into account the nature and the scope of an authentic instrument in the Member State of origin when establishing its evidentiary effects in another Member State (and an alternative reference to the “most comparable effect”);
• the European Certificate of Succession: how to proceed in cases when the contents of a decision on succession and of a Certificate are contradictory; persons authorised to seek its issuance; the complexity of the form for the issuance of the Certificate; the costs of the translation of the Certificate; the situations of the so-called defective certificates (the cases where the immovables are not described in the way required by lex fori; a limited period of validity of a certified copy of the Certificate and the respective costs.
Some of the recommendations are as follows:
• to think about the simplification of the form for the issuance of the European Certificate of Succession;
• to establish a special register at the level of the EU, as well as to establish national registers, where the time for the institution of succession proceedings would be registered, as well as the course of the proceedings, the application, the issuance of a European Certificate of Succession and all other circumstances related to a Certificate (its rectification, modification, withdrawal and temporary suspension of its effects);
• to organise educational activities and training programmes not only for notaries, judges and practicing lawyers but also for other interested parties (lawyers working in banks, pension insurance institutions, and the like).
The research results and the Recommendations were presented and discussed at the expert meeting held in Ljubljana, on 3rd December 2019, organised for the stakeholders applying the Regulation in Croatia and Slovenia. The meeting was an opportunity for representatives of the judiciary, the notaries, the attorneys, the Ministry of Justice and the academic communities of the two countries to exchange their knowledge and experience, and to draw some conclusions mainly corresponding to the Recommendations, with a special focus on the following topics: the cases of cross-border succession and the determination of the habitual residence, the choice of applicable law, the idea of establishing a special EU register of succession proceedings and of the European Certificates of Succession.
In the second phase of the Project, a special Guide was developed, to facilitate the overall implementation of the Regulation, and to integrate the project results into professional practices and understanding of the Regulation among the members of the relevant professional groups (judges, notaries and lawyers). The Guide and the educational materials including the lectures and case studies on the practical application of the Regulation, prepared by the educational expert team in each state, were the bases for the subsequent education. The pilot training was conducted on 15th and 16th May 2020 in Croatia, and on 11th and 12th June 2020 in Slovenia. After the pilot training, in each state online training courses were programmed and conducted in each country using the same educational materials, which remain available to judges, notaries and lawyers in the respective states.
Furthermore, the „Information for citizens of EU Member States in the cases of cross-border succession“ was drafted, providing information and instructions for EU citizens, potential heirs in the cases of cross-border succession.
The final project event – an international colloquium - held online on 3rd July 2020, was an opportunity for the key stakeholders applying the Regulation to discuss the most important recommendations and to present their opinions regarding future policy actions, in two panel discussions: I. Establishment of a special Register at the EU level and the Succession Regulation (EU) No 650/2012 and II. Changes to the national implementing legislation and the uniform application of the Succession Regulation (EU) No 650/2012 - Croatian and Slovenian perspectives. At the same time, this event provided a connection for further cooperation between legal experts and public authorities in the area of the implementation of the Regulation in both Croatia and Slovenia. The international colloquium ended with the adoption of the Conclusions regarding possible legislative changes and a uniform application of the Succession Regulation. The Representatives of CNUE and EJN have also participated in the colloquium and have significantly contributed to its success.
For more about the Project visit: https://www.hpc.hr/wp-content/uploads/2019/02/Information-kit-EN.pdf