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Journal of Private International Law Volume 8, 2012 - Issue 2
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Original Articles

“Recognition”, Acceptance and Enforcement of Authentic Instruments in the Succession Regulation

Jonathan Fitchen
Pages 323-358 | Published online: 07 May 2015

  • Regulation (EU) 650/2012 of the European Parliament and of The Council on Jurisdiction. Applicable Law, Recognition and Enforcement of Decisions and Acceptance and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession OJ L2012/107 JUSTCIV 94 CODEC 712 (hereinafter, final text) available from http://register.consilium.europa.eu/pdf/en/12/pe00/pe00014.enl2.pdf (accessed 7 June 2012). It was preceded by Proposal for a Regulation of the European Parliament and of the Council 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, Brussels, 14 October 2009 COM(2009) 154 final. The provisions of the proposed regulation concerning authentic instruments are mentioned by, inter alios, P Terner. “Perspectives of a European Law of Succession” (2007) 14 Maastricht Journal of International and Comparative Law 147, 167; J Harris, “The Proposed EU Regulation On Succession and Wills: Prospects and Challenges” [2008] Trusts Law International 1, 30; Max Planck Institute, “Comments on the European Commission's Proposal for a Regulation of the European Parliament and of the European Council 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” [2010] Rob els Zeitschrift 522, 669–71 (hereinafter, MPI). The succession proposal is critically considered with particular reference to the proposed “recognition” of authentic instruments by M Kohler and M Buschbaum, T)ie “Anerkennung” offentlicher Urkunden? - Kritische Gedanken tiber einen zweifelhaften Ansatz in der EU-Kollisionsrechts-verienheitlichung” [2010] Praxis des Internationalen Privat- und Verfahrensrechts 313, the same article has been published in French, “La ‘Reconnaissance’ des actes authentiques? - reflexions critiques sur une approche douteuse entamee dans l'harmonisation des regies de conflits de lois” [2010] Revue critique de droit international prive 629.
  • J Fitchen, “Authentic Instruments and European Private International Law in Civil and Commercial Matters: Is Now the Time to Break New Ground?” (2011) 7 Journal of Private International Law 33.
  • See proposals for two new regulations respectively concerning Registered Partnerships and International Couples: Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships (COM(2011) 127 final): Art 28. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0127:FIN:EN:PDF (accessed 1 July 2011). Communication from The Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions: Bringing legal clarity to property rights for international couples (COM (2011) 125 final): Arts 32 and 33. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0125:FIN:EN:PDF (accessed 1 July 2011). For perceptive and critical comments see M Buschbaum and U Simon, “Les propositions de la Commission europeenne relatives a 1′harmonisation des regies de confHt de lois sur les biens patrimoniaux des couples maries et des partenariats enregistres” [2011] Revue critique de droit international prive 801. Also see the European Commission's Green Paper on free movement of public documents and recognition of civil status records. Green Paper Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records, COM(2010) 747 final http://eur-lex.europa.eu/LexUriServ/LexUriServdo?uri=COM:2010:0747:FIN:EN:PDF (accessed 20 March 2011).
  • 4 Eg Conseil des Notariats de l'Union Europeenne (CNUE), a private organisation which attempts to represent civilian notaries from 21 of the EU's 27 Member States. The CNUE does not necessarily speak with one voice: minority views and reservations are possible under its constitution.
  • See D Bureau and H Muir Watt, Droit International Prive I (PUF, 2nd edn, 2010), vol 1, part III, ch 2; M Niboyet, Droit International Prive (LGDJ, 2nd edn, 2009), 579; P Calle, Lacte public en droit international prive (Economica, 2004) and P Galle, “L'acte authentique etabli a l'etranger validite et execution en France” (2005) 94 Revue critique de droit international prive 377. J Kropholler and J von Hein, Europaisches Zivilprozefirecht (Verlag Recht und Wirtschaft, 9th edn, 2011), 680. R Geimer and R Schtitze, Europaisches Zivilverfahrensrecht (Beck, 3rd edn, 2010), 829; T Rauscher. Europaisches Zivilprozfiss- und Kollisionsrecht EuZPR/EuIPR (Sellier, 2010).
  • The UK, Eire and Denmark are not participating. The UK decision to opt out was taken on 16 December 2009, see the Ministry of Justice's Response to the Public Consultation on the European Commission's Proposal on Succession and Wills, p 8, available from http://justice.gov.uk (accessed 20 April 2011). The Presidency Note, “General Agreement on the text of the Articles” of 12 December 2011 JUSTCIV 356 CODEC 2397, available from http://register.consilium.europa.eu/pdf/en/1l/stl8475.enll.pdf (accessed 22 December 2011), notes at para 2 the opt out by the UK and Ireland and Recital 82 of the final text, supra n 1, confirms this. Recital 83, final text, confirms that Denmark has not opted in.
  • Authentic instruments in succession matters may be used, inter alia, to provide formal evidence of the existence of a Will; to prove the contents of the Will; to identify heirs; to confirm the status of heir; to create an inventory; to record acceptance or rejection of a succession; and also to record any agreed division of the estate between heirs. See para 4 of the EU Presidency Note, Les actes authentiques en matiere de successions, 13510/10, JUSTGIV 156 CODEC 805 pdf_fr_20101012060141–86-l: accessed via http://www.cnue.eu/ on 20 April 2011.
  • See Fitchen, supra n % n 93 concerning successful enforcement of a Danish Gaeldsbrev as an authentic instrument prior to Case C-260/97 UnibankA/S v Flemming G. Christensen [1999] ECR 1–3715. See also the ruling of the Supreme Court of Lithuania No 3K-3–347/2008 30 July 2008 considered by M Krasnickas, “Recognition and Enforcement of Foreign Judicial Decisions in the Republic of Lithuania” [2008] Yearbook Of Private International Law 493, 502–04.
  • At the time of writing many of the working documents concerning the negotiation and drafting of the Succession Regulation are “restricted”: some information has been officially released by the EU, other information has been unofficially released by stakeholders and by the Italian Parliament. Full access to the information is promised once the text of the Regulation has been published in the Official Journal, see post by G Buono 7 June 2012 on conflictoflaws.net (accessed 7 June 2012).
  • 10 This article only considers authentic instruments created by notaries in the 21 EU Member States which allow such creation.
  • For more on this important distinction see Fitchen, supra n 2, 41–45.
  • See Calle (2004), supra n 5, 267 and Fitchen, ibid, 82–89.
  • The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents allows foreign authentic instruments (or other documents it defines as “public documents”) to demonstrate (a) their authentic documentary status, and (b) the national status of their creator, by the public authority in the state of creation affixing an apos-tille to the authentic instrument. The apostille does not concern the probative or executory force of the foreign authentic instrument in the receiving legal system. Neither an apostille nor any other form of legalisation is required for the authentic instruments which fall within European private international law regulations.
  • See Fitchen, supra n 2, 39–54 for an overview of the domestic differences between French and German legal systems in this sense.
  • 15 As do particular meanings of phrases such as “probative force” and “executory force”.
  • See Fitchen, supra n 2, 55.
  • See Abkommen zwischen der Bundesrepublik Deutschland und der Franzosischen Republik iiber die Befreiung 6′ffentlicher Urkunden von der Legalisation vom 13 September 1971 Bun-desgesetzblatt BGB1. 1974 II S. 1075. The agreement abolished the need for an apostille or for further authentication concerning, inter alia, authentic instruments which move between France and Germany
  • Despite the Commission raising the possibility of including a recognition stage for Brussels I, as mentioned in the Green Paper, a wave of hostile comment induced the Commission to accept the orthodoxy: the recast Brussels I proposal makes no mention of recognition for authentic instruments. See discussion in Fitchen, supra n 2, 82.
  • There have been calls for a European Authentic Act, see the “own initiative” report on the establishment of a European authentic instrument by Manuel Medina Ortega of the Committee on Legal Affairs of 19 September 2008. The Draft Report was overwhelmingly adopted on 18 December 2008 by the European Parliament. Despite an EU Action Plan promising a Green Paper by the end of 2010 no Green Paper has appeared. See Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, 23.
  • Art 3(1) of the final text, supra n 1, 41 states, ‘”authentic instrument' means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin”. This mostly follows the earlier definition in draft Art 2(h) which endured without significant alteration to the 2010 Presidency Text, see JUSTGIV 238 CODEC 1560 EJUSTICE 139 Nota della Presidenza e Presidenza Ungherese entrante al Gruppo per le question! di dritto civile (Successione) of 22 December 2010 at p 6, www.parlamento.it/web/docuorc2004.nsf/de2f62b6b54c2757cl2576900058cad3/c78087efbd274569cl2576550037555e/$FILE/18096–10_Lim_IT.PDF (accessed 20 April 2011), (hereinafter: 2010 Presidency Text). The European Parliament, in amendment 39 of the Draft Report of 23 February 2011 successfully proposed adding ‘in a matter of succession’, www.europarl.europa.eu/activities/committees/draftReportsCom/comparlDossier.do?dossier=JURI%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
  • [1990] OJ C189/57 Jenard-Moller Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters Done at Lugano on 16 September 1988. see para 72.
  • Case C-260/97 Unibank A/S v Flemming G Christensen [1999] ECR 1–3715. See Casenote by G Droz (2000) 89 Revue critique de droit international prive 250, also Calle (2005), supra n 5. 398–99.
  • 23 See Art 3(a) of Regulation 805/2004, Art 2(1)(3) of Regulation 4/2009 and Art 2(e) of the recast Brussels I Regulation.
  • See Calle (2005), supra n 5, 409, 411 who considers a case by the Gour d'Appel de Paris where an authentic instrument combining a declaration of paternity (outwith the Brussels Convention) and a maintenance obligation (within the Brussels Convention) was held to require two different exequatur procedures. Paris 22 fevrier 1990, D 1990 IR, 108.
  • It may be that Recital 62 of the final text, supra n 1, reflects a tacit admission of this issue. Recital 62 asserts that, “The ‘authenticity’ of an authentic instrument should be an autonomous concept” and then, before relating all such matters to the law of the Member State of origin, includes within this autonomous concept: the genuineness of the instrument; the formal prerequisites of the instrument; the powers of the drafting authority and the procedure under which the instrument is drawn up.
  • See Fitchen, supra n 2, 44–47, 51–52 and 94–95. Recital 61 of the Succession Regulation makes it plain that the drafters intend that the Regulation will transmit the evidentiary effects or most comparable effects of an authentic instrument from the Member State of origin into the legal system of the receiving state, see final text, supra n 1, 26, also discussed infra.
  • See Recital 66 final text, ibid, 28.
  • 28 Ibid.
  • 29 Ibid.
  • 30 There are 83 Recitals in the final Succession Regulation.
  • 3l See Art 57 of the Brussels I Regulation discussed in Fitchen, supra n 2, 61–64.
  • 32 Original English Art 35 was unclear on whether its reference to an appeal referred to Regulation 44/2001 or to the subsequent provisions of the succession regulation proposal.
  • See Art 35 of the 2010 Presidency Text, supra n 20.
  • See para 31 of JUSTGIV 152 CODEC 968 Note from the Presidency to the Council concerning Political Guidelines for future work of 6 June 2011 (hereinafter June 2011 Political Guidelines). http://register.consilium.europa.eu/pdf/en/ll/stll/stll067.enll.pdf (accessed 2 July 2011).
  • Referring to Attestation Form II, see 6–9 of JUSTCIV 198 CODEC 1399 Note on Draft Forms from the Presidency to the Working Party on Civil Law Matters (Succession) of 12 June 2012 (hereinafter Draft Forms) available from http://register.consilium.europa.eu/pdf/en/12/stl0/stl0252.enl2.pdf (accessed 13 June 2012).
  • See Art 60 final text, supra n 1, 79.
  • See 2010 Presidency Text, supra n 20, 36. Also see Art 53, final text, supra n 1, 75.
  • In the context of draft Art 34 (final Art 59), the Compromise Package stated at para 29 that a domestic challenge to an authentic instrument would deprive it of the possibility of producing cross-border legal effects. Recital 65, final text, ibid, 28 appears to embody aspects of this statement providing, inter alia, that an authentic instrument subject to challenge in the Member State of origin should not produce any evidentiary effects outwith its Member State of origin for the duration of the challenge and thereafter if successful. It is possible but far from clear that Recital 65, which also appears to be most closely connected with Art 59, could be relevant to the interpretation of the stay provisions of the Succession Regulation concerning authentic instruments.
  • See Fitchen, supra n 2, 44–7.
  • For details concerning the difficulty in the context of the Brussels I regime, see Fitchen, ibid, 66–69.
  • The textual development of draft Art 34 into final Art 59 is discussed, infra, in Section E.
  • See Draft Form II, supra n 35, point 4, p 8 (”Evidentiary effects of the authentic instrument in the Member State of origin (to be filled in only if acceptance is sought)”) and point 6, p 9 (“Enforceability of the authentic instrument (to be filled in only if enforcement is sought)”) (emphasis added).
  • See discussion and references in Fitchen, supra n 2, 82–89, also Niboyet, supra n 5, 191–98.
  • The proposed deletion did not necessarily extend to the deletion of the concept of “recognition”. See amendment 78 suggesting the deletion of “Recognition of…” from the title of Art 34 in the European Parliament's Draft Report of 23 February 2011, www.europarl.europa.eu/activities/committees/draftReportsGom/comparlDossier.do?dossier=JURI%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
  • See amendment 16 in the European Parliament's Draft Report of 23 February 2011 which would substitute “free movement” for “recognition” in Recital 26 of the proposed regulation. The same substitution is made in amendment 22 in the European Parliament's Amendments of 13 May 2011, www.europarl.europa.eu/activities/committees/draftReportsGom/comparl-Dossier.do?dossier=JURI%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
  • See comments of Kurt Lechner (the European Parliament's Rapporteur on the succession proposal) at p 62 of the European Parliament's Draft Report of 23 February 2011.
  • See amendment 23 to Recital 26 and amendment 103 concerning Art 34 contained in the European Parliament's Amendments of 13 May 2011, www.europarl.europa.eu/activities/com-mittees/draftReportsGom/comparlDossier.do?dossier=JURI%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
  • See para 25 of June 2011 Political Guidelines, supra n 34, ‘Authentic instruments in succession matters drawn up in a Member State will be accepted in other Member States under the future Regulation unless such acceptance is manifestly contrary to the public policy (ordre public) of those Member States.” ‘Acceptance” was also used in preference to “recognition” in an earlier Note from the Presidency, p 4 dated 11 April 2011, JUSTGIV 78 CODEC 539, www.parla-mento.it/web/docuorc2004.nsf/de2f62b6b54c2757cl2576900058cad3/c78087efbd274569cl2576550037555e/$FILE/08448-ll_Lim_IT.PDF (accessed 10 May 2011).
  • 49 The possibility that Art 59 is present to accommodate a Member State which lacks the judicial administration of succession is, given the Succession Regulation's expansion of the definition of that which may be regarded as a ‘court’ to include a notary unconvincing, see Recital 20 and Art 3(2).
  • See Commission Green Paper on the Review of Regulation 44/2001, 21 April 2009 GOM(2009; 175 final Q8.3. The suggestion did not proceed to the Commission's recast proposal concerning the Brussels I Regulation, 14 December 2010 COM(2010) 748/3 final. See Fitchen, supra n 2, 82–89.
  • 51 Art 46 of Brussels Ha replaces Art 13 (3) of the Brussels II Convention.
  • See Borras Report, [1998] OJ C221/27.
  • 53 Reasons of space and relevance prevent coverage of other enforceable agreements which benefit from “recognition and enforcement” under Brussels Ha.
  • See Borras Report, supra n 52, paras 62 and 64.
  • See Rauscher, supra n 5, Rn 3, p 349. An authentic instrument is classified as a public document as a consequence of the involvement of the public office holder by which it is created.
  • See Borras Report, supra n 52, para 61.
  • Ibid, para 62.
  • The idea is mentioned, albeit with little enthusiasm, by Rauscher in his commentary upon Art 46 of Brussels Ha [supra n 5 at Rn 2, p 348) where he refers to B Ancel and H Muir Watt. “La Desunion Europeene: le reglement dit ‘Bruxelles IF” (2001) 90 Revue critique de droit international prive 403 which at 441 raises the possibility of matters concerning authentic instruments being entirely removed from the supervision of private international law by the operation of the Brussels II Regulation. Geimer in Geimer and Schtitze, supra n 5, at Rn 5, p 1026 has criticised Rauscher's comment as inconsistent with Rauscher's later observations on Art 46. He also notes that Paraschas and also Dornbltith (neither of whom is cited by Rauscher on this point) each appear to favour a similar conclusion concerning the effect of Art 46, albeit by reason of arguments constructed upon policy and upon the equation of decisions with other enforceable agreements by the Articles and Recitals of the subsequent Regulations. Geimer and Schtitze argue that both arguments are incorrect, see Geimer and Schtitze, supra n 5, 1026. With respect, it is not clear to the author that Dornbltith's brief coverage actually warrants the argument which it is said to advance concerning authentic instruments (as opposed to certain judicial settlements), see S Dornbltith, Die Europaische Regelung der Anerkennung und Vollstreckbarerk-larung von Eke- und Kinds chaftsentscheidungen (Mohr Siebeck, 2003), 62–64. Paraschas suggests that for policy reasons it should not be necessary for a domestically valid Brussels Ha authentic instrument to be “enforceable”, in the sense of requiring that it contain enforceable obligations, before it could be “recognised” and made effective in another Member State (see Paraschas in Geimer and Schtitze, Internationaler Rechtsverkehr (Nr 545) Art 46 EuEhe VO Rz 4, 10).
  • It may be significant that Andrae's practice focused commentary on Art 46 of Brussels Ha is silent upon both aspects of the issue, see M Andrae, in B Dauner-Iieb, T Heidel and G Ring Anwaltkommentar BGB Band 1 Allgemeiner Teil mit EGBGB (DeutscherAnwaltVerlag, 2005), 1970- 71.
  • See Rauscher, supra n 5, Rn 10, p 350, who points out that though Art 21(3) allows an interested party faced with an enforceable authentic instrument to apply for or to oppose its recognition, the potential for immediate enforceability in the Member State of its creation is a condition precedent to such a “recognition” under Brussels Ha: Rauscher convincingly argues that this is to ensure that there is no possibility for the “isolated recognition” of an authentic instrument relating to either a “private divorce” or any other private attempt to assert the existence of a marriage so as to avoid or pre-empt the consequences of an enforceable divorce.
  • See FP Pereira, “La Cooperation Judiciaire en Matiere Civile dans L'Union Europeenne: Bilan et Perspectives” (2010) 99 Revue critique de droit international prive 1, 16 who suggests that some find Brussels Ha cumbersome and lacking in fluidity in the context of recognition and enforcement. He also notes, at 17, that this Regulation is shortly due for review
  • See Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance of 23 November 2007 www.hcch.net/index_en.php?act=conventions. text&cid=131 (accessed 20 June 2011) and the 2009 Explanatory Report upon the Convention by A Borras and J Degeling, www.hcch.net/index_en.phppact-publications.details&pid=4909 (accessed 20 June 2011). P Beaumont, “International Family Law in Europe—The Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity” [2009] Rabels Zeitschrift 509, 536–39 concerning recognition and enforcement.
  • The UK and Denmark are the only EU Member States not to be parties to the 2007 Hague Protocol, see Hague Protocol on the Law Applicable to Maintenance Obligations 2007, www.hcch.net/index_en.php?act—conventions.text&cid-133 (accessed 20June 2011) and the explanatory report by A Bonomi, www.hcch.net/index_en.phppact-publications.details&pid=4898 (accessed 20 June 2011).
  • The recast Commission proposal on Brussels I deletes maintenance claims from the recast regulation. The use of the European enforcement order in a maintenance claim remains possible but does present problems given the need for a particular form of uncontested claim under that provision, see Ancel and Muir-Watt, supra n 58, 469.
  • Art 48 of Regulation 4/2009 infra.
  • See 2007 Hague Convention: Art 3(e), defines “maintenance arrangement” to include private agreements and authentic instruments, and Art 30 sets out the recognition and enforcement procedures concerning such authentic instruments.
  • See Borras and Degeling report, supra n 52, concerning Chapter V at para 429 where such “recognition” is distinguished from recognition and enforcement which is said to refer to, “the intermediate formalities to which recognition and enforcement of a foreign decision are subject”.
  • 68 Art 30(3).
  • See Borras and Degeling report, supra n 52, para 473, where the need to show either a quality of res judicata or legal force is noted as having been decided as the minimum required to allow the “recognition” of a decision.
  • 70 See Art 30 (4)(a)-(c).
  • 71 Art 48(2) applies the provisions of the Regulation, “as necessary”, to court settlements and to authentic instruments. Art 48(3) requires the competent authority of the Member State of origin to provide any interested party with an extract from either type of instrument using the forms in the annexes of the Regulation.
  • The alternative process in Arts 23–38 is broadly in line with “traditional” EU recognition and enforcement procedures and is conditional upon there being a foreign exequatur stage, see Beaumont, supra n 62, 543, fn 66. For critical discussion of the drafting of these provisions concerning authentic instruments see, Andrae in Rauscher, supra n 5, Rn 8, p 675.
  • See Art 22 and Recital 25: the need for the duplication is presumably that Art 22 is located in Chap TV, s 1 and not in s 2. Recital 21 also seeks to contain and control the scope of the Regulation.
  • See Andrae in Rauscher, supra n 5, Rn 7, p 675. Despite Art 17, Art 19 makes limited provision for a review of the decision within the Member State of origin. Art 21 provides the enforcement court with a range of options, including refusing or suspending the requested enforcement, which are additional to any such grounds as may exist under its national law. See also Andrae, ibid, Rn 9, p 676, concerning the possibility of the enforcement court responding to changed circumstances concerning incoming judicial settlements or authentic instruments by varying their provisions. Andrae suggests that authentic instruments and judicial settlements are not necessarily subject to the jurisdictional bar represented by Art 8 of the Regulation as she suggests that this provision only relates to judicial decisions.
  • See Andrae in Rauscher, ibid, Rn 6, p 675.
  • Ibid.
  • See Borras and Degeling report, supra n 62, para 429.
  • Art 60 was discussed in Section G supra.
  • Art 34 (November 2009), ‘Authentic instruments formally drawn up or registered in a Member State shall be recognised in the other Member States, except where the validity of these instruments is contested in accordance with the procedures provided for in the home Member State and provided that such recognition is not [manifestly] contrary to public policy in the Member State addressed”, 14 October 2009 GOM(2009) 154 final.
  • Civil and commercial authentic instruments enjoy free movement within the EU under, inter alia, Art 57 of Brussels I despite the absence of any “recognition”.
  • 81 Explanatory Memorandum, 7.
  • 82 The French and German texts each confirm this impression.
  • For the distinction between instrumentum and negotium, see Section B supra.
  • Recital 26 of the 2009 proposal stated, “In order to take into account the different methods of settling the issues regarding successions in the Member States, this Regulation should guarantee the recognition and enforcement of authentic instruments. Nevertheless, the authentic instruments cannot be treated as court decisions with regard to their recognition. The recognition of authentic instruments means that they enjoy the same evidentiary effect with regard to their contents and the same effects as in their country of origin, as well as a presumption of validity which can be eliminated if they are contested. This validity will therefore always be contestable before a court in the Member State of origin of the authentic instrument, in accordance with the procedural conditions defined by the Member State.”
  • The contemplated validity challenge was originally only possible in the Member State of origin, for subsequent developments see Section E.5 infra.
  • The French and German text of the 2009 Recital 26 appear to support this construction.
  • See Art 59 final text, supra n 1, 78 and June 2011 Compromise Package, at 12, para 26, discussed infra in Section E.6.
  • Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fur Branntwein [1979] EGR 649.
  • See inter alios, LG Radicati Di Brozolo, “L'Influence sur les conflits de lois des principes de droit communautaire en matiere de liberte de circulation” [1993] Revue critique de droit international prive 401; M Fallon and J Meeusen, “Private International Law in the European Union and the Exception of Mutual Recognition” [2002] Yearbook of Private International Law 37; P Lagarde. “Developpements futurs du droit international prive dans une Europe en vole d'unification: quelques conjectures” [2004] Rabels Zeitschrift 225; H Mansel, ‘Anerkennung als Grundprin-zip Des Europaischen Rechtsraums” [2006] Rabels Zeitschrift 651; GP Romano, “La bilateralite eclipsee par l'autorite developpements recents en matiere d'etat des personnes” [2006] Revue critique de droit international prive 457; S Bollee, “L'Extension du domaine de la methode de reconnaissance unilaterale” [2007] Revue critique de droit international prive 307; R Baratta, “Problematic Elements of an Implicit Rule Providing for Mutual Recognition of Personal and Family Status in the EG” [2007] Praxis des Internationalen Privat- und Verfahrensrechts 4; G Pamboukis, “La renaissance-metamorphose de la methode de reconnaissance” [2008] Revue critique de droit international prive 513; G Kohler, “Le droit de l'Union europeenne face a la diversite culturelle: tensions et solutions” [2009] Revue Hellenique de Droit International 473; B Hess, Europaisches Zivilprozessrecht (GF Mliller Verlag, 2010), 92 H Mansel, K Thorn and R Wagner, “Europaisches Kollisionsrecht 2010: Verstarkte Zusammenarbeit als Motor der Vereinheitlichung”? [2011] Praxis des Interna-tionalen Privat- und Verfahrensrechts 1.
  • Hess, ibid, 94, Rn 22 suggests that the Cassis/mutual recognition principle can be read into the developmental stages of the exequatur procedure in European private international law concerning judgments from the Brussels Convention of 1968, via the Brussels I Regulation of 2001, into Regulation 805/2004 (the European Enforcement Order (EEO)). He, however, notes, at Rn 23. the enduring problem of the absence of a minimum harmonisation of national procedural laws and, at Rn 25, that abandonment of the foreign exequatur stage is potentially problematic given different procedural cultures and different “efficiencies” in the judicial systems in the Member States. Hess also notes, at Rn 27, the existence of as yet empirically unsubstantiated concerns that the practical application of the European regulations which have dispensed with the foreign exequatur, eg the EEO, may not in practice fully protect procedural rights. For criticism of the EEO and the proposed exequatur free Brussels I in the context of authentic instruments see Fitchen, supra n 2, 90–98.
  • See also the discussion of Gases G-168/91 Konstantinidis [1993] EGR 1-1991, G-148/02 Garcia Avello v Belgium [2003] EGR 1–11631, and G-353/06 Grunkin and Paul [2008] EGR 1–7639 in Bureau and Muir Watt, supra n 5, tome I, 621–27 and by Niboyet, supra n 5, 198–204.
  • Bollee, supra n 5, notes the use of a foreign exequatur for, inter alia, an authentic instrument but distinguishes the authentic instrument from those situations which feature a constitutive act by a foreign “organ”: she argues that the latter situations might benefit from a unilateral method of recognition, see paras 35–36. Pamboukis, supra n 89, would radically extend full recognition to authentic instruments on a unilateral basis, treating the involvement of the public official, ie a civil law notary as equivalent to the constitutive judicial involvement in the creation of a judgment, see paras 55–56. Mansel, Thorn and Wagner, supra n 91, fn 16 point out that Pam-boukis does not fully elaborate a functioning recognition concept. Pamboukis' earlier attempts to equate foreign actes publics with foreign judgments were forcefully and convincingly criticised by Calle (see Calle (2004), supra n 5, 180–96 and the summary provided by Bureau and Muir Watt, supra n 5, 655). Pamboukis' current argument seems to proceed upon the assumption that there is one version of what a notary “does” when creating an authentic instrument: with respect, what a notary does (and does not do) when creating an authentic instrument according to the law of his own legal system is likely to be different to what an “equivalent” notary would do (or not do) when creating an authentic instrument in, and according to the laws of, a different legal system. That bakers throughout the EU all bake bread does not prevent there being differences between the creation and subsequent properties of French, German and Greek bread.
  • Hess; supra n 89, does not argue that the mutual recognition principle itself should be used to remove procedural differences concerning the enforcement of foreign titles.
  • The Commission's delay in producing the Green Paper concerning a European authentic instrument (see Action Plan Implementing the Stockholm Programme, GOM(2010) 171 final. 23) may suggest that it privately shares concerns relating to either its competence and or to the feasibility of attempting this reform. The post-Lisbon competence concerning particular civil procedure rules is found in Art 81(2) TFEU which allows the adoption of “measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:…(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States”, see [2010] OJ G83/78. It is though doubtful that the scale of the reforms required really fit Art 81(2) TFEU: can it be said that the legal systems which do not possess authentic instruments need them? Creating an optional European authentic instrument seems to argue against Art 81(2)'s criterion of necessity but there are also problems in creating a mandatory European Instrument–quite apart from the six Member States who do not possess the institution–as authentic instruments are also sent outside the EU.
  • See M Wilderspin and X Lewis, “Les relations entre le droit communautaire et les regies de conflits de lois des etats membres” [2002] Revue critique de droit international prive, which at 31 places private law generally within the ambit of the exception to Cassis represented by Gases C-267/91 and G-268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR 1–6907.
  • See P Pasqualis, “The Movement of Notarial Instruments in the European Legal Area” (2010) available from www.europarl.europa.eu/studies (accessed 20 April 2011). With respect, Pasqua-Hs's argument seems to undervalue this point by assuming a greater acquis concerning authentic instruments than actually exists, p 14.
  • Via point 4, draft form II, Draft Forms, supra n 35, p 8.
  • Art 59(2), final text, supra n 1, 78 directs all challenges concerning instrumentum (or “authenticity” as explained by Recital 62) to the courts of the Member State of origin; Article 59(3) directs challenges to negotium (or ‘legal acts or legal relationships’ as explained by Recital 63) to courts with jurisdiction under the Succession Regulation.
  • See JUSTGIV 156 CODEC 805, supra n 7, Note de la Presidence au groupe “Questions de droit civil” (Successions) of 1 October 2010. Paras 1–4 set out what is an authentic instrument, para 5 refers to existing examples of authentic instruments in EU law: the perceived need to set out basic issues and distinctions in plain non-technical language nearly a year after the publication of the proposal is suggestive of uncertainty concerning the meaning or implications of the draft provisions.
  • Ibid, draft Art 35 was covered by paras 9 and 10, but draft Article 34 required paras 11–17. The Presidency suggested in para 16 that further debate upon the issue of the probative force and effects of succession authentic instruments might, in light of the variations between the civil procedure laws of the Member States, be opportune.
  • Ibid, para 16, the suggestion was qualified by the need to ensure that the incoming authentic instrument would not thereby receive “local” benefits additional to those allowed to it in the legal system in which it was created.
  • Ibid, para 17.
  • See JUSTGIV 176 CODEC 1100 Nota della Presidenza al Gruppo per le question! di dritto civile (Successione) of 28 October 2010, www.parlamento.it/web/docuorc2004.nsf/a4f26d6d511195fficl2576900058cac9/c78087efbd274569cl2576550037555e/$FILE/15246-l0_Lim_IT.PDF (accessed 20 April 2011). Paras 1–4 essentially repeat the introduction to the earlier document but para 5 bases the idea of free circulation of authentic instruments upon the definition in draft Art 2 (l)(h) of the 2009 proposal and upon the ECJ's Unibank jurisprudence. Paras 6, 13 and 17 emphasise the importance of limiting the authentic instruments which may benefit from the proposed regulation to those falling within its definition clause.
  • Ibid, para 10.
  • Ibid, paras 11 and 13.
  • Ibid, para 14. The non-mandatory Draft Form II which, inter alia, indicates such matters is discussed infra.
  • Ibid, para 8: “[U]n atto pubblico sia riconosciuto a condizione che la sua validita non sia con-testata conformemente alia legge applicable o che 11 riconoscimento non sia manifestamente contrario all'ordine pubblico dello Stato membro dell'escuzione”. See also para 12 which supposes that the challenge to validity is now subject to an applicable law rather than tied to the Member State of creation–see also discussion of the 2010 Presidency text, supra n 20.
  • Art 34, riconoscimento degli atti public!: Un atto pubblico…redatto in uno Stato membro e riconosciuto in un altro Stato membro a condizione: (a) che la sua validita non sia contestata conformemente alia legge applicabile a norma del capo III…, o (b) che 11 riconoscimento non sia manifestamente contrario all'ordine pubblico (ordre public) dello Stato membro in cui e richiesto il riconoscimento. Italian version of 2010 Presidency Text, ibid, 39 (bold text present in the original and indicating new text).
  • A notary is subject to domestic law and domestic professional rules which may impose territorial controls upon the location of his actions. A foreign notary may however be instructed to act as an agent outwith a given jurisdiction. Concerning the implications of an absence of international jurisdiction concerning authentic instruments, see Fitchen, supra n 2, 53. See also the clarification offered by Recitals 22 and 36, final text, supra n 1, 9 and 15.
  • Quite apart from the delay and costs involved, some legal systems may punish those who unsuccessfully challenge an authentic instrument for abuse of law. See Fitchen, supra n 2 45.
  • See Bureau and Muir Watt, supra n 5, and Fitchen, supra n 2 64–65. It is worrying that despite the explanation of the instrumentum and negotium in the first Presidency Note considered above, the 2010 Presidency Text initially blurred the distinction.
  • CNUE, supra n 4, Part A is a private organisation not an EU organisation.
  • See Presidency Text, supra n 20, at p 39, fn 1.
  • “The GNUE hopes this information will be useful, although it is surprised that these questions are only being put at this stage of the adoption procedure for the draft Regulation on ‘succession’.” p 7. JUSTGIV 21 CODEC 214 Contribution from the Council of the Notariats of the European Union, available from http://register.consilium.europa.eu/pdf/en/ll/st06/st06421.enll.pdf (accessed 20 July 2011).
  • See paras 10–18, JUSTCIV 78 CODEC 539 Atti pubblici in materia di succession!, supra n 48.
  • JUSTGIV 152 CODEC 968 June 2011 Political Guidelines, supra n 34. Draft Art 34 occupied six of the seven paragraphs in s G which concerned authentic instruments.
  • See paras 27 and 28 June 2011 Political Guidelines, supra n 34.
  • Ibid, para 29. See discussion in Section C.l. supra concerning the probable difficulties of securing any corresponding stay under Art 60.
  • Ibid, paras 25 and 27. The earlier Presidency Note of 11 April 2011 had also, at p 4, spoken of the “acceptance” of foreign authentic instruments but without making it clear that a substitution was intended.
  • Ibid, para 30.
  • See Presidency Note of 12 December 2011, supra, para 22, the new recitals and standard forms were then still to be drafted.
  • According to a Commission Press Release of 7 June 2012 publication of the Succession Regulation in the Official Journal is expected, “within weeks”, see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/576&format=HTML&aged=0&language=EN&guiLanguage=en (accessed 10 June 2012).
  • See Art 59 final text, supra n 1, 78–79.
  • See Recitals 60–66, final text, ibid, 25–28.
  • See G-394/07 M Gambazzi v DaimlerChrysler Canada Inc and CIBC Mellon Trust [2009] EGR 1–2563 as discussed by Hess, supra n 89, 95, Rn 28.
  • Recital 66, final text, (discussed supra in Section G) sheds a little light on such possible conflicts.
  • See Draft Forms, supra n 35, Form II.
  • June 2011 Political Guidelines, supra, para 30 and point 2 of Form II, Draft Forms, supra n 35. P 6.
  • Draft Forms, supra n 35, the forms are said to reflect six months of discussion by the Working Party, p 1.
  • The tick boxes in point 6 concerning enforceability each appear to present a factual conclusion relating to (a) the fact that an enforceable obligation is present, (b) the nature of the enforceable obligation, and, (c) the persons against whom this obligation is enforceable. It remains to be seen how a receiving authority will treat these conclusions.
  • The EU's previous comparative investigations of authentic instruments have been modest: see Comparative Study on Authentic Instruments National Provisions of Private Law, Circulation. Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union. England, France, Germany, Poland, Romania, Sweden Study for the European Parliament No IP/C/JURI/IC/2008–019 PE 408.329, www.europarl.europa.eu/document/activities/cont/200811/20081127ATT43123/20081127ATT43123EN.pdf (accessed 20 April 2011).
  • See discussion in Section G.2 supra associated with n 50.

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