Following several EU initiatives in relation to the internal market, not limited to Stockholm, the area known as private law is now partially within an effective extension of the old EC treaties and network of principles to a more widely circumscribed area. It does remain circumscribed, not infinite.

It was very noticeable on the Trusts Discussion Forum in issues concerning the interrelation between the various EU Regulations and their implementation  that they are designed and can only function by reference to the national laws of property within the Member States, and makes no effort to override these.  I would refer to the absolute interdict on Union law affecting the 'system of property ownership' which includes property law within the EU at article 345:

Article 345

ex Article 295 TEC)

"The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership."

Whilst the French Mitterand Government attempted to limit that to nationalisation issues in 1981 by reference to the Monnet statement, it is clear that that statement was only applicable to the ECSC Treaty and was overtaken by subsequent extensions through the EC Treaty of Rome.

The tendency of most commentators on Regulation n° 650/2012 was to find the easiest solution by going for the most obvious hook on which to hang an argument, which fatefully and inevitably turned into a butcher's hook.  The various issues raised on renvoi in bye context of relationships between the United Kingdom and France and adaptation rules show that clearly.

What was less evidenced was the prior need to  refer to the operative article of the Regulation, and check specifically  what it was able or unable to influence.  Article 23 2. (g)  merely refers to transfers of property, it does not state or infer  that the property rights themselves are covered by Regulation n° 650/2012.  That means that the scope of the adaptation article is in fact curtailed to what is strictly necessary and not to the creation of a trust right under LPA 1925 etc. over a French immovable where frankly there is no equivalent  to enable adapted "in rem".  Unfortunately for the English novice attempting to invoke adaptation, the Hague Convention of 1984 which has become a form of reference point was negotiated upon the principle of the doctrine of conversion of rights in rem into in personam rights:  the adaptation article 31 is limited to rights in rem.   However, and this is the important point, the preamble to the Regulation  does not exclude other forms of adaptation:

(17) "The adaptation of unknown rights in rem as explicitly provided for by this Regulation should not preclude other forms of adaptation in the context of the application of this Regulation."

I remain to be convinced that the abolition of the doctrine of conversion in TLATA 1997 is sufficient for that purpose, although it is very good for trouncing the DGFIP in a game of real as distinguished from lawn tennis: la pelouse y est interdite en matière fiscale.

What then became clear was that those with a limited exposure to English land law, perhaps owing to conversion courses based solely on the 1925 legislation rather than a broader historical view of the English common law were simply not able to see the opportunities for efficient succession left available under English property law and which Regulation n° 650/2012 did not smother at all.

Perhaps I can encourage those who are tempted to skate across the ice of Private International Law and simply use the procedural methodologies in an arbitrary manner, that they reflect upon whether and to what extent the national property laws involved do not actually provide a simpler methodology to be applied in a cross border succession without running for renvoi, which is no more than a deliberate catch all article designed to facilitate the change from a scissionist to a unitary régime in relation to all other "third states".  The Regulation's conceptualisation of Renvoi only applies where the national law in question as applied under article 23 does not address the transfer of foreign property under its own domestic principles.  English law as to foreign land effectively does enable a direct transfer without the need for any aid from an executorship.

The principle of the liberalisation of legal services should not be extended as an excuse to avoid the law and its application in this particular area.  There lye dragons.

If you don't "know" - given the responses to the fundamental principle of English land and property legislation which was raised, I suspect that many practitioners who have converted to the practice of law with a non-law first degree may not have the fullest awareness of the English laws of property in question -  then perhaps it might be an idea to refer the matter to a practitioner who does.  A physics degree is no substitute for an LLB in that area.

Filling in and plastering over the cracks is one thing, attempting to paper over an available and open doorway to a client's legal serenity is entirely another.

 

Peter Harris