On Friday 11 December, the European Council adopted the Stockholm programme, which sets the priorities of the work of the European Union for the next five years in the field of Justice, Freedom and Security. The Notaries of Europe note with satisfaction that the Stockholm programme expressly states that the ‘EU should consider abolishing all formalities for the legalisation of authentic documents between Member States’ and that ‘thought should be given to the possibility of creating, in the long term, European authentic instruments’. They are also pleased with the privileged attention paid by the programme to matters affecting the lives of families. They support the creation of Community instruments which enable the clarification of rules applicable in this field and insist on the need to ensure the coherence of various Community instruments. From this point of view, they stress that the harmonisation of rules of laws should be prioritised, as it brings further legal certainty to European citizens.
In the context of their activities, the notaries inform European families of the laws governing their daily lives. These laws can vary depending on the Member States and can often appear complex. The notaries are there to bring, with a requirement of legal certainty, responses to questions on legal and taxation issues which families can ask as regards their assets: marriage contracts, registered partnerships, donations, wills, inheritance regulations, etc.
It is for this reason that the Notaries of Europe welcome the Commission’s proposal for a regulation on international successions. They endorse the principle of ‘controlled autonomy’, which stipulates that the law applicable to successions is that of the deceased’s habitual place of residence, and the opportunity afforded to citizens to plan their succession by choosing the law of their nationality. The creation of a European certificate of succession is also supported. It will serve as proof of the capacity as heir in all Member States and will facilitate efforts of beneficiaries.
Furthermore and in order to respect the last wishes of the deceased, the Notaries of Europe insist on the importance of the registers of wills and their integration in a network, as practiced by the European Network of the Registers of Wills Association (ENRWA). Indeed, searching for wills, in particular when they have been drawn up abroad, can present complications which are sometimes unsolvable for heirs or for the professionals responsible for the regulation of these successions. And yet, the ENRWA allows a notary to examine a foreign register via his or her national register and thus facilitates the search for a will drawn up by a deceased person and in any Member State.
The Notaries of Europe also support the draft legislative proposal on matrimonial property regimes for 2010 and call for further work in order to reach an agreement on the draft regulation on divorce (Rome III). The adoption of uniform conflict of laws for all the Member States would be a major advancement, which would enable the precise determination of the legislation applicable to matrimonial property regimes, to legal cohabitation, to separations and to divorces, and to know the judicial bodies called on to act in disputes arising from such legal situations. There also, broad autonomy should be granted to European citizens.
Noting that particular attention will be paid to vulnerable elderly people as regards the Stockholm programme, the Notaries of Europe support the initiatives taken in favour of the elderly, who are becoming more and more numerous. Also, they feel that there is a need to upgrade the recognition of measures or decisions taken with a view to organising their protection, regarding incapacity orders in particular. They suggest promoting the establishment of centralised public registers under state responsibility to record such measures and decisions, and their interconnection at European level. The Notaries of Europe count on the future Spanish Presidency of the European Council to take all necessary steps in this direction and are ready to make their expertise in the field available.
Lastly, the Notaries of Europe stress with great interest the Council’s wish to facilitate the life of families by guaranteeing them easier access to justice, in particular with the help of the e-Justice portal. The Notaries of Europe are ready to participate in this process and are already working with the support of the European Commission on drafting multilingual factsheets explaining the procedure of regulating a succession in various Member States. The Notaries of Europe also implemented a European notarial atlas which enables citizens to find, anywhere in Europe, a notary who speaks their language.