Verbatim report of proceedings

Wednesday, 15 November 2006 - Strasbourg

19. Succession and wills (debate)

  President. The next item is the report (A6-0359/2006) by Mr Gargani, on behalf of the Committee on Legal Affairs, with recommendations to the Commission on succession and wills (2005/2148 (INI)).

  Giuseppe Gargani (PPE-DE), rapporteur. – (IT) Madam President, ladies and gentlemen, let me say straight away that, in relation to the measure before us, there are in the European Union between 50 000 and 100 000 cases of succession due to death, and this is a measure that is likely to become the reference in issues of international law.

Transnational succession is an extremely wide-ranging phenomenon, and it comes up against an increasing number of difficulties stemming from profound differences between the system of private international law and the substantive law systems of the Member States. That often results in obstacles to the freedom of movement and the enjoyment of the right to own property. The Committee on Legal Affairs, which I have the honour of chairing, has therefore decided to take the initiative to make successions in Europe simpler by using the power granted to it by Article 192 of the EC Treaty, and to call on the Commission to adopt a legislative proposal.

Since we, ladies and gentlemen, unfortunately do not yet have the power to initiate legislation like all our counterparts in the national parliaments – that is an observation that I always make – I turn to you, Commissioner Frattini, and, with the strong backing that I am sure the qualified majority vote will give me, I call on you to carry forward an important request of ours in the interests of Europe’s citizens.

You are aware that, for beneficiaries to take possession of an estate, they currently have to start proceedings in all the countries where the property is located. This is not only a costly and laborious process, but, since the transmission of property by inheritance is a special way of transferring ownership, it is associated with emotional and personal aspects – highly complex interpersonal relationships that even transcend legal arguments. I should like to mention a very personal recollection from my youth, when I was at university: Professor Cariota-Ferrara, who had done his thesis on inheritance law, used to say that inheritance law was a law about emotions, a law that often involved suffering. Hence, Madam President, ladies and gentlemen, I am convinced that our proposal will make a real contribution to creating a Europe of the citizens.

I am grateful to the committee, which debated this issue at length and thoroughly examined all aspects of it. I truly believe that what we are putting before Parliament is a very important proposal that represents a step forwards for both political Europe and the citizens’ Europe. I therefore call on you to adopt this report, and I also ask Commissioner Frattini to do so on behalf of the citizens of Europe.

The report we are proposing includes measures aimed at ensuring that there is one applicable law and one competent court. Applicable law and competent court should generally coincide, and the criterion for establishing them is also objective: the habitual place of residence of the deceased at the time of death. Individual freedom of choice is not ruled out, however: people making a will may choose which law should govern the whole succession, either the law of their own nationality or the law of the country in which they are habitually resident at the time the choice is made. Similarly, should disputes arise, the parties may choose the applicable law and the competent courts.

I should like to say a few words on a key point that I consider the cornerstone of our proposal. The report proposes the introduction of a legally binding European certificate of inheritance, which will set out the law applicable to the succession, the beneficiaries of the estate, the persons responsible for administering the estate and their powers, and the property comprising the estate. The certificate will be drawn up according to a standard model and will allow the property inherited to be recorded in the public registers of the Member State in which the property is located.

Mrs Berger has carried out a more thorough investigation than the others precisely on this proposal and has tabled five amendments. In this respect, I must say that I am particularly concerned that the certificate should be compulsory, consistent and legally certain. Indeed, if that is not established, I think the whole structure of the provision will be adversely affected, and it will become less effective and rather less of a reference. Not all the countries in the EU may take it into account, and it will end up being a consultative measure rather than a mandatory one. In any event, that is likely to diminish its force, which should lie precisely in its legal certainty and its ability to reach all citizens, so that they can have a real chance of receiving their inheritance by means of these instruments.

In my opinion, the other amendments should be rejected, and in that respect I should like to appeal particularly to Mrs Berger to think again and perhaps to withdraw or recast her amendment in order to make this proposal more incisive.

  Franco Frattini, Vice-President of the Commission. (IT) Madam President, Mr Gargani, ladies and gentlemen, firstly, I would like to sincerely congratulate Chairman Gargani and the Committee on Legal Affairs for having drawn up a proposal which, if it is approved by this House – as I hope it will be – I will not hesitate to transform into a legislative proposal.

I too would like to begin with an observation. We have worked for a long time to gauge the opinions of legal operators, of experts in the field, and, above all, of the citizens of the European Union, on the possibility of having an instrument clearly identifying the applicable law and therefore making it easier to create a real European area in the sector of succession and wills.

Well, from the results of a survey conducted by Eurobarometer in July 2006 on the various aspects of family law in Europe, it has emerged that, on average, 80% of Europeans believe that recognition of succession and wills within the whole European area is necessary. There are, obviously, countries in which the consensus on this matter is even stronger: in Germany, for example, one of the great founding countries, and in Latvia, a smaller country, 92% consensus was recorded in favour of this kind of legislation; in my own country, Italy, the figure was 88%, as in Hungary. There has therefore been a wide response, showing that, on average, four fifths of Europeans are in favour of facilitating European regulation on succession and wills.

In March 2005, the Commission published a Green Paper on the subject, which has enabled us to gather hundreds of responses of great interest from academics, the legal profession and operators in the field. We have also gathered many good ideas from the hearing on transnational successions, which Parliament had the excellent idea of organising. Among other things, I can inform you that the Commission has, in turn, organised a public hearing on the same topic, to be held on 30 November. It will give us an opportunity to collect further ideas, which, I believe, together with Mr Gargani's report, will enable us to submit a legislative proposal in the near future.

The last subject on which I would like to comment briefly is that already touched on by Chairman Gargani, namely that of a European Certificate of Inheritance. I share the rapporteur’s view that, if we want a truly effective European instrument in this area, it must have binding effect within European territory. In this regard, many of you will remember other instruments of private international law on which we have reached an agreement. If a certain instrument, once adopted in one Member State, could be called into question every time in the other Member States in which it is to be applied – if it is not binding on them, in other words – one of the foundations of the area of free movement of decisions would be jeopardised.

Obviously, the objection could be made that a certificate of inheritance, as such, is always binding, since otherwise it would not be able to certify situations. However, I believe that in this case it would be appropriate to emphasise its binding nature, as we are creating, perhaps for the first time, a useful instrument for resolving the problem of movement among European citizens that is also shown through the recognition of wills, that is the problem of succession and wills. Allow me therefore to say in advance that I agree entirely with Mr Gargani.

  Manuel Medina Ortega, on behalf of the PSE Group. – (ES) Madam President, Mr Gargani has presented us with a report that expresses the Committee on Legal Affairs’ desire for the European institutions to take action in the field of succession law.

Commissioner Frattini has stressed that 80% of European citizens believe that succession law must be regulated and recognised in a harmonised fashion throughout the European Union. We are not talking about theories, but about the realities affecting people who live in different countries or who have families in different countries and who, when succession takes place, find themselves in an absolutely desperate situation.

Unfortunately, the European Union’s Treaties do not provide for the possibility of harmonising the substantive law on succession. This is something that will probably have to be put right in the future, since it makes very little sense that the consequences, the legal system and the rights of inheritors should change entirely as a result of moving a few kilometres and depending on whether a person is established in one country or another.

For the time being, the Committee on Legal Affairs, by means of the report by Mr Gargani, is restricting itself to telling the Commission that it is necessary to begin to propose actions of a legislative nature. Commissioner Frattini has indicated that the Commission is in favour of doing so. We will probably not be able to go much further at the moment.

We in the Committee on Legal Affairs have discussed the merits and the content of the proposals that Mr Frattini includes in the annex; there are certain amendments tabled by my Socialist colleague, Mrs Berger, which are intended to correct some of the defects noted in that annex, but the most important thing of all is that the Commission is prepared to make practical proposals, as Mr Frattini has indicated in this House. We cannot improvise on this issue, since we must work on the basis of our experience.

Anybody who has had to deal with an international succession issue within the European Union will have found themselves faced with huge difficulties, above all in terms of jurisdiction.

We should probably begin to deal with the issue from the point of view of jurisdiction, the competences of courts and the recognition and effectiveness of decisions, removing the exequatur procedure, as Mr Gargani recommends, which makes no sense in the European Union.

I therefore hope that Mr Gargani’s efforts and Mr Frattini’s contribution will make it possible for us soon to have practical proposals on the table for the development of Community law in this field.

  Diana Wallis, on behalf of the ALDE Group. – Madam President, on behalf of my Group, I would like to welcome the Green Paper, and thank Mr Gargani very much for his report and all the work that has been done on it in terms of consultation. It really is welcome.

This is clearly an issue that affects an increasing number of our citizens and that we have to address, but it is not a simple issue. When one thinks about how terrible it is for any individual to have to deal with bereavement and then adds to that the difficulties of dealing with some sort of transnational legal situation, it is clearly an area that we have to try to tackle in order to make life easier for our citizens, having encouraged them to be mobile in the way that we have.

But the legal problems that this raises touch on subsidiarity. They touch the culture of our different legal systems very deeply. But it is clear that if we are to tackle the problem, we need, as Mr Gargani has said – and I think my group would also underline – to move towards a binding European certificate of inheritance. That has to be our first goal, to have free circulation of such a binding certificate, in the same way as we have free circulation of ordinary judgments. It is going to be difficult though because, as I have said, it touches matters of public policy within our various countries. It touches matters of taxation law. But I commend the report and hope that the Commissioner will be able to take it forward to a legislative instrument.

  Maria Berger (PSE). – (DE) Madam President, the rapporteur – and chairman of our committee – deserves thanks for his report and also for having been willing to take on board a number of my amendments following the debates in committee.

I think today is a good day for a subject that is not exactly fun: death and inheritance. Having adopted the services directive at second reading, thank heaven there was no derogation for funeral services, which is what many had wanted. Tonight we are discussing European initiatives in the field of inheritance law.

Right at the outset, I would like to clear up a misunderstanding, since it is evident that a technical error has cropped up. I am not seeking to make the certificate of inheritance anything less than binding, but only to delete the words ‘unless and until proven otherwise’; on the contrary, indeed, far from wishing to do away with the certificate of inheritance’s binding effect, I want to reinforce it. Since I shall be clarifying this with the House services, it might perhaps be possible, under these circumstances, for the other groups to vote in favour too.

I hope that Amendment 3 is now acceptable. We are proposing as a starting point a residence period of at least two years, for people should not suffer unexpected legal consequences as a result of short-term relocation, while we do not want to make it easy for someone to evade his own country’s inheritance law, to the detriment of his family members, simply by moving elsewhere.

I would now like to put the case for my other amendments, which provide for the certification of conformity. Since Recommendation 1 testifies to our desire not to interfere in Member States’ procedural law, I see this examination of conformity as going against the principle of non-interference not only in the Member States' material law, but also in their procedural law.

I trust that these explanations will help the other groups to support our amendments after all.

  President. The debate is closed.

The vote will take place tomorrow.