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On the division between the scope of applicable laws to the rights in rem and to the succession

Summary/Abstract: The European Commission presented a proposal of the Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM 2009/154). Article 1 paragraph 3 letter j) of the proposed Regulation states that the nature of rights in rem relating to property and publicising these rights is excluded from the scope of the Regulation. Additionaly recital 10 of the proposed Regulation states that the Regulation should cover the method of acquiring a right in rem in respect of tangible or intangible property as provided for in the law governing the succession, the exhaustive list (“numerus clausus” ) of rights in rem which may exist under the national law of the Member States, which is, in principle, governed by the lex rei sitae, should be included in the national rules governing conflict of laws. However the publication of these rights and effects of entry or failure to make an entry into the register should be governed by the law of the Mamber State where the subject of property is located. This provision tries to make a distinction between the scope of application of the laws governing the rights in rem and the succession. The proposed Regulation is based on the assumtion that the law governing the succession would be applicable also to the acquisition of the rights in rem. The problem aries if the law of the Mamber State where this right should be enter into the register does not know such right in rem. The Belgien Presidency proposed that in such a case the Member State should not be obliged to recognise such right in rem but this right might be transformed into another, adequate right in rem that is known to the national law of this Member State. The proposal is analysed in the article. The author gives some examples which show that mentioned transformation of the right in rem into another one is not always easy and possible. Other question is that the proposed Regulation shell regulate which law is decisive if the effect of entry into the register is different in the law of the Member State which governs the succession and the law of the Member State where the subject of property is located. The European Parliament proposed to solve this problem by adding a new Article 20a into the proposed Regulation. According to Article 20a the law of the Member State where the subject of property is located should be decisive if the entry into the register is constitutive. This proposal might not be however sufficient in order to solve mentioned problem.

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