Brussels 1 and 4?  Adaptation, adaptation, adaptation ...

The CJEU is increasingly involved in the pan -European analysis of property rights in different member states and will become more so now the Succession Regulation n° 650/2012 is in force. That Regulation includes a set of adaptation provisions to address cases where one law in play does not recognise or even contemplate a property right of the nature envisaged by another.

This legal system is evidently superior to Member States' own property laws, and the remainder of their internal laws stemming from these such as taxation of property rights and capital in other Member States.

There is no nascent EU common law or ius civile, as such.   I stress here the need to distinguish the notion of ius civile from the parallel assertons of a ius gentium, and that of a ius naturale.  Ther is some ironby in the fact cthat eh Ropman law devleoped fomr a law of citizenry, applicabel only to Rman citizens, and others. We are only just at the start of a concept of a European citizen and what rights they have within the EU legal order of private intra-union law in relation to mere "gentes" from elsewhere on the globe!

However the interaction between the Regulations and the primary EU freedoms and rights in the internal legal market under the Stockholm and similar Council initiatives is giving a similar potential effect.  Most of  what we currently describe as Roman Law emerged as a result of forms of procedure, then praetorian interpretation, leading on to the creation of civil property rights out of these and other foundries of legal thinking. If you couple the Stockholm initiatives leading to the Brussels 1-4 Regulations with the freedom of movement of capital for example, it is then clear that this is where we are now. Not merely where we may be headed. It is clear that no Member State's tax administration can now requalify foreign EU property rights into a different domestic right of their own with the aim of taxing it as such, without creating an obstacle to the freedom of movement of capital. See the article concerning the wider context of article 345 TFEU when taken in the context of the parallel freedom of movement of capital.

Hence the interest of Case C‑605/14 Komu v Komu , a Brussels 1 preliminary ruling from a Finnish Court described in detail in Peters posting.

This does however raise one increasingly irritating issue of administrative incomprehension and crasse incompetence.  How is such a sophisticated set of property rules to function within the context of the freedom of movement of capital, which includes successions, when one tax administration's historical position and practice is diametrically opposed to it in succession matters.

Rarely in civil service history has a tax administration managed to sink to the depths achieved by HMRC over the correct legal treatment of foreign property rights.  Even the French DGFIP do not attempt to treat trusts as usufruits.  Even without any element of succession or a contingency needed to create a deemed settlement under s 43 (2) ITA,  HMRC has managed to fool English professionals into "believing" through the term "administration" that foreign property rights in rem can be turned into trusts / settlements  at the click of an administrative finger, or now mouse.

The French usufruit and the Spanish usufructo are but two examples of how HMRC do not follow the English Court's historical practice and analysis which consists of respecting  a foreign property right and giving effect to it, rather than changing it into something more taxable. Memec and its associated cases do not actually override the English Court's prior procedure and practice in relation to foreign property rights and institutions.

The CJEU in Komu v Komu may have set HMRC's last attempt to bury its head in sand in quick drying cement. Possibly why HMRC Trusts and Estates might pray for a Brexit!  However, even were Brexit to occur,  the old English Court's methodology of analysing a foreign property right for what it is rather than  what it is not, will not enable HMRC simply cite Memec, as it has done in its manuals as if that were some sort of incantation taking them outside the Court's overall power to adjudicate the nature of a foreign property right. Sorry, HMRC,  there is no escape from legal reality:  a French usufruit dismemberment is not an entity!

See Peter's article on the subject