Christoph A. Kern, Daniela Glücker
Das neue Europäische Erbstatut und seine Aufnahme in der deutschen Literatur
Volume 78 (2014) / Issue 2, pp. 294-314 (21)
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The New European Conflicts Rule on Succession and its Reception by German Legal Literature On 16 August 2012, Regulation (EU) No. 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession was finally adopted. The Regulation's basic conflicts rule is that, in the absence of a choice of law, the applicable law is the law of the State in which the deceased had his or her habitual residence at the time of death. An »escape clause« allows for the application of the law of the State with which the deceased was manifestly more closely connected. This new European conflicts rule departs considerably from the traditional approach in Germany and various other countries, according to which the applicable law was the law of the deceased person's nationality. The paper describes and criticises the overwhelmingly positive reaction of German legal literature regarding the Regulation and its conflicts rule. It emphasizes that the new approach not only neglects the expectations of the deceased person in a number of situations, but also raises concerns with regard to the principle of democracy, for under the new approach a law is called to govern succession matters which typically has not been enacted by a legislature elected by the deceased. The authors then explain why the argument that the new approach promotes integration is at the very least doubtful, and suggest that the new approach might rather be the result of fashion and overzeal to construe a uniform system than an adequate solution to transnational succession cases.