ABOUT THE AUTHOR: Richard Frimston TEP is a
partner and head of the private client team at russell-cooke llp,
and chair of the step eu committee
Yes, it really is here now.
One should stop referring to Brussels IV and allow Regulation
(EU) No 650/2012 to trip lightly off the tongue. (EU) No 650/2012
entered into force on 17 August 2012 and will apply fully from 17
August 2015.
A baby elephant has a gestation period of only 24 months at
most. It is ten years since the initial Dörner and Lagarde report
on wills and succession was published. We still have three years
before Regulation (EU) No 650/2012 applies fully and therefore some
time to become fully acquainted with its nuances and the secrets of
its newly numbered recitals and articles.
The completion of a long project often carries with it a sense
of loss, melancholia and tristesse. The arrival of the
butterfly sees the end of the caterpillar and the chrysalis.
‘I feel that there is much to be said for the Celtic belief that
the souls of those whom we have lost are held captive in some
inferior being, in an animal, in a plant, in some inanimate object…
And so it is with our own past,’ wrote Proust, one of the 20th
century’s greatest unread novelists, in the first book of his
Remembrance of Things Past. The souls of many, together
with much of my own past ten years, are certainly held captive in
Regulation (EU) No 650/2012.
As one publisher who rejected Proust’s work said: ‘I may be as
thick as two short planks, but I fail to understand why a chap
should require 30 pages to describe how he tosses and turns in bed
before falling asleep.’
Regulation (EU) No 650/2012 includes nine and a half initial
pages of 83 separate recitals. Some of the recitals are somewhat
Proustian and do not always add to clarity. They might, however,
prevent tossing and turning in bed before falling asleep.
Regulation (EU) No 650/2012, in the same manner as other EU
Regulations, divides its newly numbered Articles into chapters
dealing with separate topics of private international law:
- Chapter I (Arts 1 to 3) covers scope and definitions.
- Chapter II (Arts 4 to 19) deals with jurisdiction, which is
given to the state of the last habitual residence.
- Chapter III (Arts 20 to 38) relates to applicable law, which is
to be that of the state of the last habitual residence, but with
the ability to choose the law of nationality in its place. Renvoi
is partially abolished. The chapter also deals with questions of
capacity and formal and material validity of wills and succession
agreements (known as dispositions of property upon death).
- Chapter IV (Arts 39 to 58) deals with recognition,
enforceability and enforcement.
- Chapter V (Arts 59 to 61) affects authentic instruments.
- Chapter VI (Arts 62 to 73) concerns the European certificate of
succession.
- Chapter VII (Arts 74 to 84) deals with general and final
provisions.
We will all have to understand its workings.
The UK (together with Ireland) has turned its back on Proust and
declined to opt into Regulation (EU) No 650/2012. Denmark always
keeps clear of these things, too.
The failure of the UK to persuade other EU member states to
amend Regulation (EU) No 650/2012 sufficiently to enable the UK to
opt in is not only a missed opportunity, but also a demonstration
of the current inability of the UK to lobby effectively in the EU,
something that, in contrast, STEP is definitely getting better
at.
Perhaps the UK equivalent of À la recherche du temps
perdu is Anthony Powell’s series of novels making up A
Dance to the Music of Time. Snobbish, claustrophobic and
harking back to an earlier age, for those of us who like that sort
of thing they are a tour de force of English society from the 1920s
to the 1960s – a great read with many a memorable character,
including Widmerpool.
Each year the Anthony Powell Society gives its annual Widmerpool
Award. According to the society: ‘Widmerpool is variously pompous;
self-obsessed and self-important; obsequious to those in authority
and a bully to those below him. He is ambitious and pushy;
ruthless; humourless; blind to the feelings of others; and has a
complete lack of self-knowledge.’
Derry Irvine, Max Hastings and Karl Rove have each received the
Widmerpool Award prize – ‘the wrong kind of overcoat’ – but it may
have missed a recipient more recently.
In the EU tussle between the two sides of La Manche, there are
no winners. Who should get the Widmerpool Award?