Jurisdiction under the EU Succession Regulation and Relationships with Third Countries

In the legislative acts adopted by the EU in the field of private international law different approaches are present as concerns the spatial applicability of the rules addressing, respectively, issues of jurisdiction and of applicable law. Whereas the latter rules tend to apply universally or erga omnes, that is, also in the event in which they designate the law of a third country, the former rules usually apply purely inter partes, in such terms as to address only the jurisdiction of Member States' courts. The tension between these two approaches is particularly evident within Regulation (EU) No. 650/2012 (the European Succession Regulation), which provides within a single text a comprehensive set of rules addressing the various private international law issues concerning succession. Also within this Regulation, in fact, different approaches are adopted concerning the spatial aplicability of its rules. As concerns the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country, by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Nonetheless, the rules contained in the Regulation as concerns choice of forum, as well as lis alibi pendens and related actions, apply purely inter partes. This causes on the one hand the impossibility of re-establishing a correspondence between forum and ius in case the deceased made a professio iuris in favour of the law of a third country, and, on the other hand, does not ensure a satisfactory coordination with parallel proceedings pending before third country courts. The subsidiary jurisdiction rules may in turn cause an excessive enlargement of the scope of the jurisdiction of Member States’ courts, and could also bring attempt to unity of the succession. The latter concern is likely to arise also in respect of the mechanism embodied in Article 12, para. 1, of the Regulation, which achieves a rather incomplete coordination with the jurisdiction exercised by third country courts.