Overseas Chambers of Peter Harris

66 L'application d'une loi étrangère dans le cadre du Règlement (EU) n° 650/2012: après huit années d'expérience, comment s'y prendre?

April 20th 2022

How is the EU Succession Regulation (EU) n°650/2012 applied in France? Good question.

Ten years after its publication and eight years after its coming into force, the actual application of the EU Succession Regulation can still be uneven in France.

Whilst notaries in the larger centres seem to have the Regulation largely in hand, their colleagues in the country have not always been able to assemble the necessary resources or specific competences required to ensure its correct and coherent application where a succession to French property is made subject to a foreign law under the Regulation. The fact that a large number of second or even first homes are distant from major towns does not help. Certain notaries when faced with a foreign law required by the Regulation even prefer forcing a renvoi (return) to French law in a manner contrary to the Regulations provisions. That places the ensuing succession at risk of legal challenges, particularly where there may be family disagreements.

It is not a simple position for a notary to deal with, particularly when faced with composite foreign states such as the United Kingdom and the British Islands and territories. Each has their own legal system and, for example,  it is not possible to say that Scottish law applies to an English succession. Even more so to attempt to apply English law to a Jersey succession. The Regulation defines the law applicable by reference to habitual residence or by an option for the law of the testator's nationality: "British" can mean many things, but it does not mean that an Englishman is a Scotsman, a Northern Irishman or a Jerseyman. Those distinctions need to  be taken into consideration in the context of the Regulation,

Whilst the application of provisions of foreign law are set out in the Regulation, which is directly applicable in France, the notary cannot be expected to be competent in the foreign law with which he is confronted. The notary however has a duty to advise the heirs on the interaction between the foreign law governing the succession and the extent and the manner of its application under the Regulation in France.

How can this be dealt with?

The simplest is to have a certificate of foreign law drawn up by a lawyer specialised in the Regulation in the foreign law concerned and above all else experienced in dealing  with French succession law. This enables the notary to draw up the necessary actes (deeds) to transfer the assets. Those are: the attestations/certificats d'hérédité et immobilière, without of course lessening the importance of the succession declaration for tax purposes. This enables the notary to cite the foreign law and apply it in their actes as certified by the foreign lawyer, enabling the transfers to take place in France accordance with the foreign law imposed by the Regulation.

So as to permit the citation of the foreign law certificate in the notarial  actes, under the foreign lawyer's responsibility, the certificate should be drawn up in France, where the foreign lawyer is bilingual, or have it formally translated by a French Court registered translator.

Following on from the recent Loi confortant les principes Républicaines and the introduction of the recent prélèvement compensatoire, the notary's duty to advise in international succession issues has been significantly enlarged. It is therefore better for advisors to collaborate on these issues.

I am available to assist French notaries in establishing such certificates of English and Jersey law in the French language when these are required under the mechanics of  the application of the Regulation in France.