6. Despre forum şi formă în contextul exercitării opţiunii succesorale – clarificări jurisprudenţiale ale Curţii de Justiţie a Uniunii Europene
6. On forum and form in the exercise of the succession option: Jurisprudential clarifications by the Court of Justice of the European Union

Summary/Abstract: Regulation (EU) No 650/2012 (hereinafter, the Regulation) outlines a complex normative architecture for international successions, in which the determination of the competent forum and the form of declarations of the succession option are carefully coordinated to serve the overarching aim of facilitating heirs’ cross border exercise of rights. The case law of the Court of Justice of the European Union reflects a nuanced reading of the concept of “forum,” which varies with the applicable procedure and the powers of the authorities involved and at times departs from its strictly institutional meaning. Thus, authorities such as notaries or court registries are, in certain contexts, classified as “courts,” on the basis of criteria calibrated to the purpose of the rule under analysis. Article 13 of the Regulation establishes an alternative competence limited exclusively to the formal receipt of the declaration of succession option, which does not entail the transfer of institutions or procedural remedies from the law of the heir’s state of residence. Intervention by the receiving judicial authority in the merits of the succession is therefore excluded. In parallel, Article 28 enshrines the principle of in favorem validitatis, allowing the form of the declaration of succession option to be governed, in the alternative, by the law of the declarant’s state of habitual residence, where this differs from the requirements of the lex successionis. This formal flexibility does not preclude procedural verification of the existence and reality of the habitual residence of the person making the declaration, nor of compliance with the relevant substantive rules regarding formal requirements. Unlike the limited prerogatives of the alternative forum under Article 13, the court competent to rule on the succession as a whole will determine the law applicable to the succession and will assess both fulfilment of the substantive conditions of the declaration of succession option and the admissibility of its revocation, retraction, or unilateral challenge. This perspective underscores that a person’s status in matters of succession cannot be dissociated from the other components of their legal identity and must manifest uniformly, regardless of the competent authorities called upon to act.

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