With the free movement of people within the European Union (EU), thousands of international successions occur each year, including individuals with assets in different Member States. In these situations, it is often the case that the law governing the succession gives inheritors rights over properties unknown to the legislation of the country in which things are located.
Therefore, it is necessary to make an adaptation, converting property rights in the figures closest to the legal system of the country in which they are located. This is a highly complex operation, as it requires knowing the legal systems of the various Member States of the European Union.
Facilitating adaptation for the authorities that, in each Member State, are responsible for succession (courts, lawyers, notaries, conservatives, solicitors, etc.) is precisely the objective of a European project, led by Afonso Patrão, of the Legal Institute of Faculty of Law of the University of Coimbra (DDF), which has just obtained funding from the European Commission under the “Justice Program – JUST-JCOO-AG-2020”, in the amount of 227 thousand euros.
Succession means the transfer, by death, of the inheritance – rights and obligations of the deceased. These rights can be property but also other powers over things, which are not always equivalent in the legal systems of different countries (usufruct; housing law; surface law; trust).
In the first phase of the project, with the participation of researchers from the universities of Valencia (Spain), Genoa (Italy), Heidelberg (Germany) and Uppsala (Sweden), a survey will be carried out “of the various real rights in real estate that the laws of the Member States assign successively, seeking to describe these rights in a uniform format, in English, explaining the outlines of these rights (powers of the holder; duration; transferability; opposition to third parties; etc.) “, explains the study leader.
From this detailed description, the scientists will then establish correspondences, that is, “try to assist the authorities responsible for the succession to find the closest right, in the Member State of the location of the property, to the one assigned by the law governing the succession, through a computer platform”, says Afonso Patrão.
To understand the complexity of the work that scientists have ahead of them, the DDF professor also uses a practical example: “in the event of the death of an Irish citizen residing in Ireland, it is the Irish law that will regulate the succession, and therefore, it will assign the rights over the deceased’s assets, designating the beneficiaries (children, spouse, etc.) and the rights that apply to those assets. It may happen that this law (in this case, the Irish one) is granting a right over a thing – a land, a house, etc. – who is in another Member State of the European Union where the right is not known”.
«Irish law can state that the child receives a trust on a property that is in Portugal, for example, a house in the Algarve. This is a problem because the law that regulates property rights will be the law of the country where the buildings are located, and that law does not provide for the concept of trust”, he continues.
“It is a problem that is difficult and requires adaptation. The project aims to facilitate this operation, as the title of the project suggests – EU-ADAPT – Adaptation of rights in rem in cross-border successions within EU”, adds the researcher.
In a later phase of the “EU-ADAPT”, which lasts for twenty months, the objective is to create a correspondence system that allows the identification of the law of another Member State that is closest to that assigned by the regulatory law of the succession. Open, there is the possibility of the platform being integrated into the European Commission’s e-justice portal or made available to the current cooperation networks that exist in the EU, so that they can include this functionality.
This tool is inserted precisely in civil judicial cooperation – in the cooperation of the authorities of the Member States – seeking to suggest, in the adaptation of real rights, the closest legal figure of the country where the property is located.
The DDF specialist also indicates that the European Succession Regulation, approved in 2012, offers criteria for adapting real rights, although its difficulty was immediately signaled by the European Union, which warned of the need to use collaboration networks between the Member States in the area of justice for its simplification. “It is to this challenge that we want to respond”, concludes Afonso Patrão.