The regulation whose time has finally come

  • Author : Richard Frimston
  • Date : October 2012
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?


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